Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                BISHOP | BARRY | DRATH
‘APROFESSIONAL CORPORATION
2000 Powell Street, Suite 1425, Emeryville, California 94608

Tel. No. (510) 596-0888 Facsimile (510) 596-0899

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BISHOP | BARRY | DRATH
MARY MARGARET RYAN, SBN 127828

CAROL L. HEALEY, SBN 61461 ELECTRONICALLY
2000 Powell Street, Suite 1425 FILED
Emeryville, California 94608 Superior Court of California,
Telephone: (510) 596-0888 ounty of San Francisco
Facsimile: (510) 596-0899 FEB 27 2013

Clerk of the Court
BY: EDNALEEN JAVIER
Attorneys for Defendant Dowty Clerk

FOLEY ELECTRIC, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

ROBERT ROSS and JEAN ROSS, Case No. CGC 9 -275731
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
Plaintiffs, MOTION FOR SUMMARY JUDGMENT
BY DEFENDANT FOLEY ELECTRIC,
INC,

Vs. Date: May 9, 2013
Time: 9:30am
Dept: 503
Judge: Hon. Teri L. Jacks
C. C, MOORE & CO, ENGINEERS, et al., meget one Nee NBRNSOn
Complaint Filed: December 17, 2010
Defendants. ard Amd. Complaint: May 8, 2012"

P. y
Trial Date: June 10, 2013

netomat

I. INTRODUCTION
Defendant Foley Electric, Inc. (“Foley”) seeks summary judgment in this case filed by

Robert Ross and his wife for injuries allegedly related to asbestos exposure. Mr. Ross was a
Union insulator from 1959 to 1993 who has previously filed and settled asbestosis pleural claims,
and now seeks to recover against numerous defendants including moving party for alleged
asbestos-caused colon cancer. This motion is filed because plaintiffs have sued the wrong Foley +
company, and numerous efforts to secure a voluntary dismissal have failed. Foley Electric, Inc.

first began work and was licensed as an electrical contractor in the Bay Area in Mareh 1977. It

«I.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FOLEY ELECTRIC, INC.’S
MOTION FOR SUMMARY JUDGMENTe
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serves principally residential and business customers in the Bay Area. Plaintiffs’ lawsuit and
discovery responses allege that Mr. Ross was exposed to asbestos from working around Foley
Electric employees at various times from 1961 te 1965, and at two refineries from 1973 to
February 1977. The Complaint also alleges that a mechanical contractor called Foley-PMI
exposed him to asbestos. Moving party has not acquired its business from any other entity, nor
has it ever worked at any of the locations identified by Mr. Ross. Because plaintiffs have
erroneously sued this Foley entity for acts or omissions alleged prior to its coming into existence,
there is no triable issue of material fact, and moving party is entitled to summary judgment
against plaintiff Robert Ross and his wife suing for loss of consortium, Jean Ross.
i. UNDISPUTED MATERIAL FACTS.
Issue: PLAINTIFFS HAVE.SUED THE WRONG DEFENDANT.

Plaintiffs filed their Complaint for Damages against Foley Electric, Inc, and others on
December 17, 2010 (Separate Statement of Undisputed Material Facts, No. 1; herein abbreviated
[UMF 1]). Thereafter they filed a First Amended Complaint on March 14, 2011 [UMF 2}, a
Second Amended Complaint on May 16, 2011 [UMF 3], and a Third Amended Complaint on
May 11, 2012 [UMF 4]. The Third Amended Complaint, Exhibit C, Contractor Defendants,
alleged that plaintiff worked around Foley Electric Co. while at Union Oil in Rodeo at various
times between 1960-1966 and 1973-1977, and at Phillips Petroleum Company in Avon at various
times in 1973-1977 [UMF 5]. Foley’s counsel requested of plaintiffs’ counsel that Foley be
dismissed because the wrong entity had been served, and that this Foley had never done any work
at any refinery [UMF 6].

Foley commenced doing business on or about March 29, 1977 [UMF 7]. At all times
since its incorporation in 1977, Foley has had its principal place of business in the San

Carlos/Redwood City area of California [UMF 8}, has been in the business of contracting to

provide electrical services in the Bay Area to residences and business entities [UMF 9], and has
been a California corporation doing business as a State licensed electrical contractor [UMF 10].
Foley has never used any other “Foley” name [UMF 11], such as a “Foley-PMI” mechanical

contractor reference in plaintiffs’ discovery responses [UMF 12]. Foley has not assumed the
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FOLEY ELECTRIC, INC.’S
MOTION FOR SUMMARY JUDGMENTBISHOP | BARRY | DRATH
A PROFESSIONAL CORPORATION

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assets or liabilities of any other company at any time [UMF 13] and is not a successor in interest
to any company using the name “Foley” [UMF 14].

Plaintiffs’ verified Answers to Standard Asbestos Case Interrogatories state that while
plaintiff was employed by Western Asbestos working at Pacific Bell Telephone in San Francisco
as an insulator from 196] to 1965, he worked in proximity to Foley’s electricians who were
removing and disturbing existing asbestos-containing insulation, and that work created visible
dust which plaintiff inhaled [UMF 15]. In those same Case Interrogatories plaintiffs allege that
Mr. Ross worked around a mechanical contractor, Foley-PMI, alleged to be at an Aerojet-General
jobsite in Rancho Cordova, California off and on between April 1972 and September 1973 [UMF
16]. Those same interrogatories further allege that plaintiff worked around Foley-PMI, Inc.,
alleged to be at a Phillips Petroleum Company/Lyon Oil Company jobsite in Avon, over various
dates in 1973, 1974-76 And October 1976-February 1977 [UMF 17}.

Exhibit B to the Standard Asbestos Case Interrogatories alleged Foley was present at
Phillips Petroleum between 1/1/1968 and 12/31/1968, and at Union Oil/Unocal between 1/1/73
and 12/1/74 [UMF 18]. Foley has never worked around any refinery [UMF 19], and these dates
pre-date the company’s commencing business [UMF 7].

Foley served Request for Admissions on plaintiff Robert Ross on March 17, 2011 [UMF
20}. Plaintiffs served Responses to Request for Admissions on April 18, 2011, objecting to and
denying all of the Requests [UMF 21]. Foley served Form Interrogatories to Plaintiff Robert
Ross on March 17, 2011, consisting solely of Interrogatory No. 17.1 requesting facts, witnesses
and documents supporting plaintiff’s denials of its Requests for Admissions [UMF 22]. Plaintiffs
served Responses to Foley’s Form Interrogatories on April 18, 2011 [UMF 23]. Those responses
averred that plaintiff worked at job sites where Foley was present “as electrical contractors” and
in close proximity to Foley employees disturbing asbestos materials at Pacific Bell Telephone,
San Francisco, over 3 months between 1961 and 1965 [UMF 24]. Foley has never done work on
a Pacific Bell Telephone building in San Francisco [UMF 25].

Foley served its Request for Production of Documents on Plaintiff Robert Ross on March

17, 2011, seeking specific documents supporting plaintiffs contentions that Robert Ross was
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FOLEY ELECTRIC, INC.’S
MOTION FOR SUMMARY JUDGMENTBISHOP { BARRY | DRATH
A PROFESSIONAL CORPORATION
2000 Powell Street, Suite 1425, Emeryville, California 94608

Tel. No. (510) 596-0888 Facsimile (510) 596-0899

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exposed to asbestos by Foley [UMF 26]. Plaintiff's Response to this Request was served April
18, 2011, but provided no mention of Foley Electric, Inc. notwithstanding broad, boilerplate and
generic responses; nor did plaintiff produce any documents created by or about Foley [UMF 27].

Foley served its Special Interrogatories to Plaintiffs, Set One, on March 16, 2011 [UMF
28}. Special Interrogatory No. 2 inquired whether plaintiff contended that he was exposed to
asbestos from any product manufactured, supplied, distributed or sold by Foley [UMF 29].
Plaintiff's Response to Foley’s Special Interrogatory No. 2 indicated that plaintiff does contend
he was exposed to asbestos from a Foley product [UMF 30]. Special Interrogatory No. 3 asked
plaintiff to state each fact supporting his contention that he was exposed to asbestos from a Foley
product [UMF 31]. Plaintiff's Response to Special Interrogatory No. 3 averred that while
plaintiff was employed by Western Asbestos working at Pacific Bell Telephone in San Francisco
as an insulator from 1961 to 1965 for three months, he worked in close proximity to Foley
employees who were removing and disturbing existing asbestos-containing insulation, joint
compound, drywalling, fireproofing and ceiling materials during installation, remodel and repair
work, and that plaintiff worked in proximity to Foley electricians removing and disturbing
existing asbestos-containing insulation which work created visible dust which plaintiff inhaled
(UMF 32]. These dates are more than a decade prior to Foley commencing business [UMF 7].

Plaintiff Robert Ross was deposed over several sessions during July and August of 2011
and in September of 2012 [UMF 33]. He recalled “Foley Electric” only in connection with his
work at a Pacific Telephone building on various dates between 1961 and 1965 [UMF 34]. He did
not recall seeing Foley Electric on any jobsite after 1974 [UMF 35]. Plaintiff further testified that
he had no reason to believe that O.K. Foley Electric, Foley PMI or W. P. Foley were composed of
the same persons as the present defendant Foley Electric, Inc, [UMF 36].

Plaintiff Robert Ross served multiple sets of Supplemental/Amended Responses to
Standard Asbestos Case Interrogatories, on September 16, 2011, June 1, 2012 and October 25,
2012. None of these contained any new information about Foley from the prior Responses, and
placed “Foley Electric” only at Pacific Telephone between 1961 and 1965 (UMF 15, 16, 17 and

18}.
4.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FOLEY ELECTRIC, INC.S
MOTION FOR SUMMARY JUDGMENTBISHOP | BARRY | DRATH
APROFESSIONAL CORPORATION

le, California 94608

Tel. No. (510) 596-0888 Faesi

2000 Powell Street, Suite 1425, Emer

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IH. SUMMARY JUDGMENT STANDARD

Code of Civil Procedure section 437c provides in pertinent part:

(a) Any party may move for summary judgment in any action or proceeding if
it is contended that the action has no merit or that there is no defense to the action
or proceeding. .. .

(c) The motion for summary judgment shall be granted if all the papers
submitted show that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.

(o) A cause of action has io merit if either of the following exists:

(1) One or more of the elements of the cause of action cannot be
separately.established, even if that élement is separately pleaded.

(} A defendant establishos-an-affirmative defense to that cause of
action.

@)  Adefendant ... has met his or her burden-of showing thal a cause
of action has no merit if that party has shown that one or more-elements of the
cause of action, even if not separately pleaded, cannot be established, or that there
is a complete defense to the cause of action. Once the defendant or cross-
defendant has met that burden, the burden shifts to the plaintiff ... to show that a
triable issue of one or more material facts exists as to that cause of action or a
defense thereto. . ..

‘The purpose of the law of summary judgment is to provide courts with a mechanism
to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial
is in fact necessary to resolve their dispute. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th
826, 843. The moving party bears the burden to persuade the court that there exists no genuine
issue of material fact; there is a genuine issue of fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof. Jd. at 845.

A defendant moving for summary judgment is no longer required to conclusively
negate an element of the plaintiff's cause of action (Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763), and needs only to show that one or more elements of the cause of action cannot be
established by the plaintiff (Aguilar, supra, at p. 853).
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IV. LEGAL ARGUMENT

A. SUMMARY JUDGMENT SHOULD BE GRANTED TO FOLEY ON THE
GROUND THAT NO TRIABLE ISSUE OF MATERIAL FACT EXISTS,
AND PLAINTIFF CANNOT REASONABLY OBTAIN EVIDENCE THAT
PLAINTIFF ROBERT ROSS EVER WORKED. AROUND THIS MOVING PARTY.

1. The evidence shows that all of plaintiff Robert Ross’ work around a
“Foley” entity occurred prior to the present defendant commencing its
business.

Plaintiff Robert Ross has answered written discovery including Standard Asbestos Case

Interrogatories and Special Interrogatories which sought to clicit all information available to
plaintiff (and his counsel) concerning plaintiff's alleged work around Foley, as well as Requests
for Admissions and Request for Production of Documents. None of this discovery adduced a
single instance of doing work around Foley after March of 1977 when Foley first came into
existence. In plaintiff's deposition sessions the only site that he identified to be connected to
“Foley Electric” was a Pacific Bell Telephone building between 1961 and 1965 [UMF 34].
Plaintiff may have worked around some Foley company that existed prior to the formation of the
Foley Electric, Inc. which has been sued in this action, but never worked in proximity to the
present moving party. Therefore, a principal element of plaintiffs’ cause of action against this
defendant cannot be established, and moving party has a complete defense to the action.

2. Foley has never worked at refineries of at Pacific Bell Telephone,

‘The present Foley has never worked at any refineries [UMF 19] and has never worked at a
Pacific Telephone Building at any time [UMF 25], let alone during the 1960s decade when
plaintiff alleges he worked around Foley at that location.

It does not create a triable issue that plaintiff simply alleges he saw Foley at Pacific Bell
Telephone, or at two refineries in the 1960s to mid 1970s, when the public incorporation records
as well as the Declaration of one of the corporate officers attest to the commencement of the
business in March of 1977. A triable issue of material fact is “evidence [that] would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the motion.”
(Aguilar, supra at p. 850). In contrast, the total of all evidence presented by plaintiff would

require a reasonable jury vot to find any connection between Foley and plaintiff Robert Ross.
6.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FOLEY ELECTRIC, INC’S: ™
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3. Foley has not assumed another prior “Foley” business.

The moving party which first began doing business in March of 1977 cannot be liable for
alleged asbestos exposures to plaintiff from 1961 to February of 1977 without proof presented by
plaintiffs that the present Foley is comprised of the same Board or the same ownership of another
company of similar name that existed at a prior time, or that Foley acquired all the assets and
liabilities of another Foley entity existing in the 1960s. No such evidence has been presented
despite the opportunity to do so in written discovery and depositions. Plaintiff in his deposition
averred that he had no reason to believe that the present moving party was the same entity as any
previous entity [UMF 36]. The Declaration of moving party’s Secretary-Treasurer John Philpott
avers that the company was incorporated in March of 1977 and began doing business at about that
time (UMF 7], that it serviced residences and businesses, not refineries [UMF 9], that it was never
known by any other names [UMF 11 and 12], and has not assumed the assets or liabilities of any
other company [UMF 13]. The burden has shifted to plaintiff to submit material evidence to
contradict this showing by moving party that it was not the Foley who plaintiff Robert Ross

remembers from the 1960s.

B. MOVING PARTY HAS MET ITS BURDEN OF PROOF OR PERSUASION AND
THE BURDEN HAS SHIFTED TO PLAINTIFFS TO SHOW A TRIABLE ISSUE OF
MATERIAL FACT.

It is clear that plaintiff does not possess and cannot reasonably obtain evidence that this
moving party was in fact the party around whom plaintiff Robert Ross allegedly worked in the
1961-1965 timeframe and in refineries in the early 1970s to February of 1977. Many entities
have the same or very similar names and confusion is understandable. However, it is not
appropriate to drag an innocent company through litigation, refuse to disrniss or even to respond
to requests for voluntary dismissal — even to the point of being presented with a Declaration from
the owner that should have clearly shown counsel for plaintiffs that this is not the right party —
and force a dispositive motion, to the cost, expense and detriment of moving party and its insurer,

Here, the moving party has carried its initial burden of production to make a prima facie
showing that it was not the Foley company who worked around plaintiff Robert Ross in the 1960s

and 1970s. t has presented affirmative evidence in the form of a Declaration of an officer of
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FOLEY ELECTRIC INC'S
MOTION FOR SUMMARY JUDGMENTBISHOP | BARRY | DRATH
A PROFESSIONAL CORPORATION

2000 Powell Street, Suite 1425, Emeryville, California 94608
Tel. No. (510) 596-0888 Facsimile (510) 596-0899

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this moving party, John Philpott. The evidence presented by plaintiff concerning his work around
Foley is limited to a time period prior to this moving party coming into existence, as plaintiff has
confirmed under oath that he did not recall ever sceing Foley on any jobsite after 1974 [UMF 35].
Plaintiff's discovery is therefore “factually devoid” (Union Bank v. Superior Court (1995) 31
Cal.App. 4th 573, 576 and 592-593) and the burden of proof shifts to plaintiff to show that a
triable issue of material fact does exist. However, plaintiff cannot obtain evidence that Foley
Electric, Inc. was doing business prior to its incorporation in March of 1977,
YV. CONCLUSION

No reasonable inference can be drawn from the facts adduced in this case other than that
plaintiffs have sued the wrong party in this case. This defendant Foley Electric, Inc. which was
incorporated in March of 1977 and has been at all times in the business of electrical contracting
for residential and business customers, is not the “Foley” entity that plaintiff encountered while
working in refineries in the 1960s and 1970s or while at Pacific Bell Telephone from 1961-1965,
‘Therefore, it is respectfully requested that defendant Foley Electric Inc. be granted summary
judgment in its favor and against plaintiffs Robert Ross and Jean Ross.
Dated: February 21, 2013.

BISHOP ,| BARRY | DRATH

By.

‘AROL L. HEALEY
Attorneys for Defendant Foley Electric, Inc.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FOLEY ELECTRIC, INC'S
MOTION FOR SUMMARY JUDGMENT