On December 17, 2010 a Hearing was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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BS Law IMAI, TADLOCK, KI 1 CA Od bod & CORDERY, LLP SAN FRANCIS (445) 675-7000 Bruce Imai, Esq. (Bar No. 053800) Tina Yim, Esq. (Bar No. 232597) IMAI, TADLOCK, KEENEY & CORDERY, LLP 100 BUSH STREET, SUITE 1300 SAN FRANCISCO, CA 94104 Telephone: (415) 675-7000 Facsimile: (415) 675-7008 Attorneys for Defendant COMMAIR MECHANICAL SERVICES ELECTRONICALLY FILED Superior Court of California, County of San Francisco FEB 22 2013 Clerk of the Court BY: RAYMOND K. WONG Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION ROBERT ROSS and JEAN ROSS, Plaintiffs, C.C. MOORE & CO. ENGINEERS, et al., Defendants. CASE NO.: CGC-10-275731 (ASBESTOS) COMMAIR MECHANICAL SERVICES’ NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT THEREOF, DECLARATIONS OF ‘TENA YIM AND JEFFREY BIRKNER IN SUPPORT THEREOF: AND [PROPOSED] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT OR, IN THE. ALTERNATIVE, SUMMARY ADJUDICATION Date: May 9, 2013 Time: 9:30 a.m. Dept: 503 Judge: Hon. Teri L. Jackson Complaint Filed: December 17, 2010 Trial Date: June 10, 2013 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD, AND TO ALL OTHER PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 9, 2013, at 9:30 a.m. in Department 503 of the San Francisco County Superior Court, located at the 400 McAllister, San Francisco, California, defendant COMMAIR MECHANICAL SERVICES (hereafter “COMMAIR” or “Defendant”), le COMMAIR MECHANICAL SERVICES’ NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONEY & CORDERY, LLP LAW OFFICES IMAI, TADLOCK, KE! will hereby move this Court as follows: qd) For Summary Judgment, in favor of Defendant and against Plaintiffs, and for costs of suit incurred herein and such other relief as may be just; or (2) Alternatively, if for any reason Summary Judgment cannot be had, for an Order adjudicating that there is no merit to the following causes of action contained in the Complaint filed herein by Plaintiffs; and that the final judgment in this action shall, in addition to any matters determined at trial, award judgment as established by such adjudication: PLAINTIFFS’ FIRST CAUSE OF ACTION (Negligence) Issue 1: Plaintiffs’ First Cause of Action for Negligence fails as a matter of law because Plaintiff Robert Ross is a sophisticated user charged with the knowledge of working with or around the hazards of asbestos. (Johnson v. American Standard, (2008) 43 Cal.4th 56.) Therefore, COMMAIR owes no duty to Plaintiff for the risks associated with asbestos. PLAINTIFES’ SECOND CAUSE OF ACTION (Strict Liability) Issue 2: Plaintiffs’ Second Cause of Action for Strict Liability fails as a matter of law because the strict liability cause of action is inapplicable against a contractor defendant. Plaintiff has no credible evidence that he was exposed to asbestos from any product distributed, sold, manufactured or supplied by COMMAIR, PLAINTIFFS’ FOURTH CAUSE OF ACTION (Loss of Consortium) Issue 3: Plaintiffs’ Fourth Cause of Action for Loss of Consortium fails as a matter of law because Loss of Consortium is a derivative claim dependent upon the injured spouse having a valid cause of action against COMMAIR. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408.) Since Plaintiff Robert Ross is a sophisticated user charged with the knowledge of working with or around the hazards of asbestos. (Johnson v. American Standard, (2008) 43 Cal.4th 56.) Therefore, COMMAIR owes no duty to Plaintiff for the risks associated with asbestos. -2- COMMAIR MECHANICAL SERVICES’ NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONEY & CORDERY, LLP LAW OFFICES IMAI, TADLOCK, KE! PLAINTIFFS’ FIFTH CAUSE OF ACTION (Premise Owner/Contractor Liability) Issue 4: Plaintiffs’ Fifth Cause of Action for Premise Owner/Contractor Liability fails as a matter of law because Plaintiff Robert Ross is a sophisticated user charged with the knowledge of working with or around the hazards of asbestos. (Johnson v. American Standard, (2008) 43 Cal.4th 56.) Therefore, COMMAIR owes no duty to Plaintiff for the risks associated with asbestos. This Motion for Summary Judgment is made pursuant to Code of Civil Procedure section 437c on the grounds that the action as to this moving defendant has no merit and there is no triable issue of any material fact, thereby entitling COMMAIR to summary judgment or summary adjudication as a matter of law. The Motion will be based on this Notice of Motion, Defendant’s Separate Statement of Undisputed Material Facts, the Declaration of Tina Yim and the Exhibits attached thereto, the Declaration of Jeffrey Birkner and the Exhibits attached thereto, Defendant’s Memorandum of Points and Authorities, all pleadings and records on file in this action, and on any/or oral and documentary evidence which may be presented at the hearing of this Motion, Dated: February 22, 2013 IMAI, TADLOCK, KEENEY & CORDERY, LLP By: /S/ Tina Yim Tina Yim Attorneys for Defendant COMMAIR MECHANICAL SERVICES 3- COMMAIR MECHANICAL SERVICES” NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONEY & CORDERY, LLP LAW OFFICES IMAI, TADLOCK, KE! PROOF OF SERVICE I, Heather Cherry, declare: Lama resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco, CA 94104. On the date of execution below, I served the within documents: COMMAIR MECHANICAL SERVICES’S NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. fully prepaid, in the United States mail at San Francisco, California addressed as set CI by placing the document(s) listed above in a sealed envelope with postage thereon forth below. by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. >| On the date of execution below, | electronically served the document via File & ‘—; ServeXpress on the recipients designated on the Transaction Receipt located on the File & ServeXpress Web site. Brayton Purcell, LLP 222 Rush Landing Road Novato, CA 94945-2469 i declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 22, 2013, at San Francisco, California. /s/ Heather Cherry Heather Cherry Ross, Robert and Jean v. C.C. Moore & Co. Engineers, et al. SAN FRANCISCO SUPERIOR COURT NO. CGC-10-27573 1 4. COMMAIR MECHANICAL SERVICES’ NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONEY & CORDERY, LLP LAW OFFICES IMAI, TADLOCK, KE! PROOF OF SERVICE I, Tina Yim, declare: Lama resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco, CA 94104. On the date of execution below, I served the within documents: COMMAIR MECHANICAL SERVICES’S NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California addressed as set forth below. >| by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below: Brayton Purcell, LLP 222 Rush Landing Road Novato, CA 94945-2469 [| On the date of execution below, I electronically served the document via File & ServeXpress on the recipients designated on the Transaction Receipt located on the File & ServeXpress Web site. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 22, 2013, at San Francisco, California. /s/ Tina Yim Tina Yim Ross, Robert and Jean v. C.C. Moore & Co. Engineers, et al.. SAN FRANCISCO SUPERIOR COURT NO. CGC-10-275731 J. COMMAIR MECHANICAL SERVICES’ NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION