Motion,Ex Parte: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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Mark S. Kannett (SBN 104572)

mkannett@bkscal.com

Paul S. Lecky (SBN 154480)
lecky@bkscal.com

BECHERER KANNETT & SCHWEITZER

1255 Powell Street

Emeryville, CA 94608-2604

Telephone: (510) 658-3600

Facsimile: (510) 658-1151

Attorneys for Defendant
JOHNSON CONTROLS, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

FEB 22 2013

Clerk of the Court
BY: ALISON AGBAY
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

CITY AND COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS
Plaintiffs,
vs.
C.C. MOORE & CO. ENGINEERS; Defendants
as Reflected on Exhibit 1 attached to the
Summary Complaint herein; and DOES 1-
8500.

Defendants.

CASE NO. CGC-10-275731

DEFENDANT JOHNSON CONTROLS, -
INC.’S SEPARATE STATEMENT OF
UNDISPUTED FACTS IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT, OR
IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

Date: May 9, 2013

Time: 9:30 a.m.

Dept: 503

Judge: Hon. Terri L. Jackson

December 17, 2010
June 10, 2013

Complaint Filed:
Trial Date:

(Filed Concurrently with Notice of Motion;
Memorandum of Points And Authorities,
Request For Judicial Notice In Support Of and
Declaration of Paul S. Lecky In Support Of;

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF JOHNSON CONTROLS, INC.'S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBecherer
Kannett &
Schweitzer

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Povell St
Emeryville, CA
94608

510-658-3600

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Pursuant to California Code of Civil Procedure Section 437c(b), Defendant Johnson
Controls, Inc. (“Johnson Controls”) submits this separate statement, setting forth all material
facts which defendant contends are undisputed.

Issue 1: Plaintiffs’ claims for negligence against Johnson Controls must fail because

Johnson Controls did not owe Robert Ross a duty of care due the products of others.

MOVING PARTY’S UNDISPUTED MATERIAL OPPOSING PARTY’S RESPONSE AND
FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE

1. Plaintiffs assert causes of action for 1.
negligence, strict liability and loss of
consortium.

Third Amended Complaint and Dismissal of
False Representation and punitive
damages. attached as Exs. A and B to
Declaration of Paul S. Lecky Dec. (Lecky
Dec.)

2. Plaintiffs’ claims against Johnson Controls 2.
arise out of Mr. Ross’ work as an insulator,

which began in 1959 and continued until at

least 1986.

Third Amended Complaint, attached as Ex.
A to Lecky Dec.

3. In order to determine the allegations 3.
against it, Johnson Controls served plaintiffs

with written discovery, including special
interrogatories a on December 20, 2012.

First Set of Special Interrogatories to
Plaintiffs by Johnson Controls, attached as
Exhibit C to Lecky Dec.

4. Mr. Ross is the only witness identified 4.
against Johnson Controls.

Plaintiffs’ Response to Johnson Controls,
Inc.’s Special Interrogatories, Set One,
response to No. 15, at p. 32:6-15, attached
as Ex. D to Lecky Dec.

1

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF JOHNSON CONTROLS, INC.'S MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION1 | MOVING PARTY’S UNDISPUTED MATERIAL OPPOSING PARTY’S RESPONSE AND
9 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
5. Plaintiffs contend that Johnson Controls 5.
| 3 exposed Mr. Ross to asbestos at multiple job
sites in the 1960s and 1970s by disturbing
4 asbestos-containing fireproofing in Mr. Ross’
5 Presence in order to install hangars to which
the Johnson Controls employees attached
6 control tubing.
7 | Plaintiffs’ Response to Johnson Controls,
i Inc.’s Special Interrogatories, Set One,
| 8 || response to no. 14 at pp. 17:13-22:10,
attached as Ex. D to Lecky Dec.
9
Plaintiffs’ Amended/Supplemental
10 | Responses to interrogatories, Set One, pp.
23:1-8, 24:16-24, 25:16-24, 26:16—27:3,
11 | 32:5-12,; 37:14-25, 41:18-28, 42:12-24, ,
12 attached as Ex. K to Lecky Dec.
13 | 6. Plaintiffs do not contend that Mr. Ross was 6.
exposed asbestos due to any products
14 | installed or applied by Johnson Controls.
15 Plaintiffs’ Response to Johnson Controls,
16 Inc.’s Special Interrogatories, Set One,
response to no. 1 at p. 1:21-28, attached as
17 | Ex. Dto Lecky Dec.
18 | 7. Plaintiffs do not contend Mr. Ross was 7.
exposed to asbestos due to any product or
19 | materials manufactured, distributed or sold by
Johnson Controls.
20
Plaintiffs’ Response to Johnson Controls,
21 | Inc.'s Special Interrogatories, Set One,
response fo no. 24 at p. 58:11-21, attached
22 | as Ex. D to Lecky Dec.
23 | 8. Plaintiffs do not contend the Johnson 8.
Becherer 9.4 Controls was responsible for workplace safety.
Kannett &
Schweitzer 35 Plaintiffs’ Response to Johnson Controls,
vss Inc.’s Special interrogatories, Set One,

Powell St. 26 | Tesponse to no. 14 at pp. 17:13-22:10,
oor attached as Ex. D to Lecky Dec.

510-658-3600

2

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF JOHNSON CONTROLS, INC.'S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION‘
1

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MOVING PARTY’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE

Plaintiffs’ Amended/Supplemental
Responses to interrogatories, Set One, pp.
23:1-8, 24:16-24, 25:16-24, 26:16—27:3,
32:5-12, 37:14-25, 41:18-28, 42:12-24, ,
attached as Ex. K to Lecky Dec.

9. Mr. Ross disturbed insulation that he
believed contained asbestos at the very same
job sites he alleges Johnson Controls exposed
him to asbestos.

Plaintiffs’ Response to Johnson Controls,
Inc.’s Special interrogatories, Set One,
response to no. 14 at pp. 17:13-22:10,
attached as Ex. D to Lecky Dec.

10. Plaintiffs allege other contractors exposed
Mr. Ross to asbestos dust by disturbing
asbestos-containing gaskets, fireproofing and
insulation in Mr. Ross’ vicinity at the same job
sites, and many others, as Johnson Controls
did.

Plaintiffs’ Amended/Supplemental
Responses to interrogatories, Set One, pp.
2371-8, 24:16-24, 25:16-24, 26:16—27:3,
32:5-12, 37:14-25, 41:18-28, 42:12-24, ,
attached as Ex. K to Lecky Dec.

11, Plaintiffs do not know when Johnson
Controls learned of the dangers of asbestos.

Plaintiffs’ Response to Johnson Controls,
Inc.’s Special Interrogatories, Set One,

response to nos. 18-20 at pp.38:24—51:28,
attached as Ex. D to Lecky Dec.

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SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF JOHNSON CONTROLS, INC.’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION

OPPOSING PARTY’S RESPONSE AND
SUPPORTING EVIDENCE1 Issue No, 2: Johnson Controls did not owe Mr. Ross a Duty because as a member of the
2 Asbestos Workers’ Union, he should be deemed to have his union’s knowledge of the
3 | dangers inherent with and around asbestos and is a sophisticated user under Johnson v.
! 4 American Standards tnc.
5 MOVING PARTY’S UNDISPUTED MATERIAL OPPOSING PARTY’S RESPONSE AND
6 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
7 12. Robert Ross joined the Asbestos Workers, 12.
‘ Local 16 in San Francisco, in March 1959.
4
: 8 Deposition of Robert Ross taken in the
9 | matter of Robert Ross v. Asbestos
Defendants, San Francisco County Superior
10 | Court, case number 274099, p. 571:18-22,
attached as Ex. E to Lecky Dec.
11
12
13 | 43. Robert Ross received both classroom and 13.
14 field training in the Asbestos Workers’
apprenticeship program.
1
5 Deposition of Robert Ross at p. 572:8-11,
16 || attached a Exhibit E to Lecky Dec.
17 | 14. Robert Ross’ class-room instructor was 14.
Richard Holmes.
18
Deposition of Robert Ross taken in this
19 || action at p. 95:4-15, attached as Ex. F to
Lecky Dec.
20
Deposition of Robert Cantley taken in the
21 | matter of Robert Ross v. Asbestos
Defendants, San Francisco County Superior
22 | Court, case number 274099, at p 2364:15-
: 23 2365:13, attached as Exhibit L to Lecky Dec.
i
| Becherer 94 15. Robert Ross completed his apprenticeship 15
i garnet ee program in approximately 1962 or 1963.
: 2% -
1055 Deposition of Robert Ross at p. 2365:6-10,
fanlsca 26 | attached as Ex. L to Lecky Dec.
Sovese.sco0 97
28
4
SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF JOINSON CONTROLS, INC'S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATIONBe

MOVING PARTY’S UNDISPUTED MATERIAL OPPOSING PARTY’S RESPONSE AND

2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
16. Mr. Ross attended union meetings at least 16.
3] once per year, and sometimes more often.
4 Deposition of Robert Ross at p. 573:1-7,
5 attached as Ex. E to Lecky Dec.
6 | 17. Mr. Ross also received the Asbestos 17.
Worker Journal, although he denied reading it.
7
Deposition of Robert Ross at pp. 2365:22-
8 | 2366:6, attached as Ex. L to Lecky Dec.
Q | 18. Mr. Ross wore a mask throughout his 18.
. career as an insulator.
10
Deposition of Robert Ross at p. 300:16-25,
11 | attached as Ex. E to Lecky Dec.
12
19. The Asbestos Workers Union, in 19.
13 particular Local No. 16, was aware of the
14 hazards of asbestos by 1957.
15 Declaration of Howard Spielman “Spieiman
Dec.” at 713 and Exhibits 1-9 thereto, filed in
16 Eugene Millard v. Associated Insulation of
California, Superior Court of the County of
17 | San Francisco, case No. CGC-09-275091,
attached. as Exhibit G to Lecky Dec.
{ 18
! Deposition of Steven Steele taken in Sylvia
19 | Currierv. Asb. Defs, San Francisco Superior
Court Case No. GCG-06-454323, at pp. 142:7-
20 | 143:10, attached as Ex. H to Lecky Dec.
21 | 20. The April, 1957 issue of The Asbestos 20.

Worker reported that, "The problems of
22 | Asbestosis and Silicosis were discussed at
large [at the regular annual meeting of the
23 | Western States Conference on February 9,
Becherer 9.4 1957], stemming from the report of Local No. 16,

Kannett& in which it was revealed that eleven members
Schweitzer 28 passed away last year. A large number of the
1255 men had definite symptoms of the
Polls 96 aforementioned hazards of our trade."
me
: 27
28

5

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF JOHNSON CONTROLS, INC'S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATIONoO oN DAD HW BR WOW YN

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MOVING PARTY’S UNDISPUTED MATERIAL OPPOSING PARTY’S RESPONSE AND
FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE

Spielman Decl., Exhibit 1 at pp. 19-22,
attached as G to Lecky Dec.,

Deposition of Steven Steele at pp. 142:7-143:10,
attached as Ex. H to Lecky Dec.

21. The October, 1957 issue of The Asbestos 21.
Worker advised: "Health Hazards: Being well

aware of the health hazards in the Asbestos

industry, President Sickles requested authority

for the General Executive Board to make a study

of the health hazards ...."

Spielman Decl., Exhibit 2 at pp. 19-22,
attached as G to Lecky Dec.,

22. The April, 1958 issue of The Asbestos 22.

Worker noted: "The health hazards of the

trade were discussed and Local No. 16

presented its case relative to the vital ,
‘capacity test’ given through its health and

welfare program .... The results are very

startling and should be the concern of each

member of our trade."

Spielman Dect., Exhibit 3 at pp. 20, 22,
attached as Ex. G to Lecky Dec.

23. The May, 1959 issue of the Asbestos 23.
Worker reported that,:"Health Hazards

relating to our trade were discussed and

various types of respirators were presented

and the good points of each were brought

out.”

Spielman Decl., Exhibit 4 at pp. 20-22;
attached as Ex. G to Lecky Dec.

Spielman Dect., Exhibit 5 at second to last
Page, attached as Ex. G to Lecky Dec.

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SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF JOHNSON CONTROLS, INC.’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATIONBecherer
Kannett &

Schweitzer ~“

1285
Powel Si.
Emeryville, CA
94608
510-658-3600

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MOVING PARTY’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE

24. Plaintiffs’ expert, Richard Cohen, MD,

has expressed the following opinions: (1) "the
medical and scientific literature makes it clear
that, at least as early as 1931, it was known in
the medical and scientific

community that breathing asbestos dust was
harmful and dangerous to human health" (2) “it
was Clear by 1952 that, regardless of the setting,
a person exposed to airborne asbestos was at
an increased risk of developing cancer"; (3) in
1950s, "there was a cancer concern not only for
the asbestos factory workers, but for other
trades exposed to asbestos working with
asbestos containing products,” including
asbestos insulation workers; (4) “Information
was readily available in the late 1950s and
1960s concerning the health hazards of
asbestos exposure and the associated risk of
developing an asbestos-related disease”; and
(5) in 1964 Dr. Iriving Selikoff's study finding that
a high proportions of asbestos insulators had
died from cancer compared to the general
population was “widely circulated in the
mainstream media (newspapers).”

Declaration of Richard Cohen filed by
Plaintiff in Betty Peterson, et al., v.
Associated insulation of California, Superior
Court of the County of San Francisco, case
No. CGC-10-275498, at J 7, 8(h),and 10,
attached Ex. | to Lecky Dec.

25. Plaintiffs’ response to Johnson Controls’
interrogatory asking plaintiffs to state all facts
which support their claims against it states:

“The hazards associated with exposure to
asbestos and the effect of asbestos exposure on
humans have been well documented throughout
this century. As early as the 1930s there existed
a wealth of information available for defendant
which evidences that exposure to asbestos and
asbestos -containing products was a health
hazard.”

Plaintiffs’ Response to Johnson Controls,
Inc.'s Special Interrogatories, Set One,
response to no. 14 at p. 28:17-21, attached as
Ex. D to Lecky Dec.

7

OPPOSING PARTY’S RESPONSE AND
SUPPORTING EVIDENCE

24.

25.

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF JOHNSON CONTROLS, INC.’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATIONBecherer
Kannett &

Schweitzer ~

1255
Powell St
Emeryuille, CA

94608
510-658-3600

oO On Dn on FF WO NY

Ne ee Be eB ee Be ee
oO em NAnPR WN HEH DO

21

MOVING PARTY’S UNDISPUTED MATERIAL OPPOSING PARTY’S RESPONSE AND
FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE

issue 3: Plaintiffs claim for product liability causes of action should be dismissed
because plaintiffs do not allege JCI manufactured or sold any products.

Johnson Controls incorporates herein the
above stated Undisputed Material Facts Nos.
1-2, as though restated in full.

26. Plaintiffs do not contend Mr. Ross was 26.
exposed to asbestos due to any product or
materials manufactured, distributed or sold by
Johnson Controls.

Plaintiffs’ Response to Johnson Controls,
Inc.’s_ Special Interrogatories, Set One,

response fo no. 24 at p. 58:11-21, attached
as Ex. D to Lecky Dec.

Dated: nanan Ds

BECHERER KANNETT & SCHWEITZER

By:

Paul S. Lecky
Attorneys for Defendant
JOHNSON CONTROLS, INC.

8

SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF JOHNSON CONTROLS, INC.’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATIONoO © ON OW HO FB wWwDY =

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Becherer
Kannett & 25.
Schweitzer

—— 26

1255
Powoll St 27
Emeryville, CA,
‘94608
510-658-3600

28

PROOF OF SERVICE

|, Sonjua R. Fisher, declare that | am employed in the County of Alameda, State of California; | am
over the age of eighteen (18) years and not a party to the within entitled action; my business address is 1255
Powell Street, Emeryville, California 94608.

On February 22, 2013, | caused to be served the foregoing:

« DEFENDANT JOHNSON CONTROLS, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR,
IN THE ALTERNATIVE, SUMMARY ADJUDICATION;

* MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT JOHNSON CONTROLS, INC.’'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION;

° SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT JOHNSON
CONTROLS, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION;.

¢ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT JOHNSON CONTROLS, ING.’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION;

+ DECLARATION OF PAUL S. LECKY IN SUPPORT OF DEFENDANT JOHNSON CONTROLS, INC.'S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION;

¢ EXHIBIT A (PART 1 of 2) TO THE DECLARATION OF PAUL S. LECKY IN SUPPORT OF DEFENDANT JOHNSON
CONTROLS, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION;

° EXHIBIT A (PART 2 of 2) TO THE DECLARATION OF PAUL S. LECKY IN SUPPORT OF DEFENDANT JOHNSON
CONTROLS, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

« EXHIBITS B thru F TO THE DECLARATION OF PAUL S. LECKY IN SUPPORT OF DEFENDANT JOHNSON
CONTROLS, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION;

« EXHIBIT G (PART 4 of 3) TO THE DECLARATION OF PAUL S. LECKY IN SUPPORT OF DEFENDANT JOHNSON
CONTROLS, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION;

* EXHIBIT G (PART 2 of 3) TO THE DECLARATION OF PAUL S. LECKY IN SUPPORT OF DEFENDANT JOHNSON
CONTROLS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION;

¢ EXHIBIT G (PART 3 of 3) TO THE DECLARATION OF PAUL S. LECKY IN SUPPORT OF DEFENDANT JOHNSON
CONTROLS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION;
and

-¢ EXHIBITS H thru L TO THE DECLARATION OF PAUL S. LECKY IN SUPPORT OF DEFENDANT JOHNSON

CONTROLS, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

In said action by placing a true copy thereof enclosed ina sealed envelope and served in the manner and/or manners
described below to each of the parties herein and addressed as follows:

Attomeys for Plaintiff {Hand Delivery & Lexis Nexis}
David Donadio, Esq.
BRAYTON PURCELL LLP
222 Rush Landing Road, P.O. Box 6169
Novato, CA 94948-6169
Telephone: {415} 898-1555 Facsimile {415} 898-1247

[Xl (By Personal Delivery) | caused such envelope to be delivered by hand to the office of the addressee(s). {One Hour
Delivery - Brayton Purcell LLP}

i (By Electronic Service) (via electronic filing service provider) By electronically transmitting the document(s) listed above to
LexisNexis File and Serve, an electronic filing service provider at www. fileandserve.lexisnexis.com. To my knowledge, the
transmission was reported as complete and without error. See Cat: 2053, 2055, 2060. {To All Counsel}

\ declare under penalty of perjury that the for ¢ and is ation is executed February 22,
2043, at Emeryville, California.

1

PROOF OF SERVICE