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

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                                HAKE Law,
A PROFESSIONAL CORPORATION

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William M. Hake, Esq. (State Bar No. 110956)
Duncan S$. Lemmon, Esq. (State Bar No. 184414)
Steven A. Kronenberg, Esq. (State Bar No. 215541)
HAKE LAW, A PROFESSIONAL CORPORATION
655 Montgomery Street, Suite 1000

San Francisco, CA 94111

Tel: (415) 926-5800

Fax: (415) 926-5801

bill@hakelaw.com

duncan@hakelaw.com

steven@hakelaw.com

Attomeys for Defendant
BRAGG INVESTMENT COMPANY, INC.

ELECTRONICALLY
FILE

Superior Court of California,
County of San Frandisco

FEB 22 2013

Clerk of the Court
BY: WESLEY G. RAMIREZ

SUPERIOR COURT FOR THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS, et al.,

Case No,: CGC-10-275731

Plaintiffs, MEMORANDUM OF POINTS AND
vs, AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY
C.C. MOORE AND CO. ENGINEERS, et al, | JUDGMENT/ADJUDICATION

Defendants. Complaint: December 17, 2010
Trial Date: June 10, 2013
Date: May 9, 2013
Time: 9:30 a.m.
Dept. 503

Dep

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

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INTRODUCTION oc csseccsesec ees ressesssersnsssessusssneesuessessneresetsnsronreeneesneesrensenereneeeseerensenseares i
STATEMENT OF FACTS voc csssesscsssesneeseenseessnensnarearnertssseecameasesesseesuaesuavececassseeaeeases 1
A. Plaintiff's Complaint Alleged Exposure to Asbestos Caused Colon Cancer ......... 1
B. Plaintiff's Only Bragg-Related Exposure: Working Near Bay Western Industrial
Maintenance Personnel in 1961-65... ..sccseccssscsseeeeeseetseneereesieseeneeneeetenesteeteenrteees 1
Cc. Bay Western Incorporated 1 1974 .....csssseseseesessessessesenensesesssssersseneneeseenetenees 2
D. Bragg Did Not Expose Plaintiff to Asbestos .......cesceccsseessessessseecseesseesanenureaneese 2
E. Asbestos Exposure Could Not Have Caused Plaintiff's Colon Cancer.
LEGAL AUTHORITY oc ccceececeecseeecesseecssensnensnesssesssessseeesascsnensnsseasesenesenenesesnessecesneees 4
Authority for Motion for Summary Judgment or Adjudication... cece 4
B. Essential Elements of Negligence/Premises Liability Cause of Action 0.0.0... 5|
c. Summary of Essential Elements of Product Liability Cause of Action.
D. Corporation Not Liable for Injuries Occurring Before Its Existence ........ccc
EB. Medical Causation: To Survive Dispositive Motion, Resisting Plaintiff Must
Produce Evidence that Exposure More Likely than Not Caused Injury we
ARGUMENT..
A. Bragg Owed No Duty to Plaintiffs before Bay Western Existed......... cece 8
B. Plaintiffs Cannot Meet Shifted Burden to Prove Asbestos Caused Colon Cancer . 8
CONCLUSION 0... ececccscsessseeenesoerseneeeneerrearsraneeanscnsrsavenecceaeararonuanvesnvessesensesseeneesseesneneeeeeanes 9

TABLE OF CONTENTSHAKE LAW,
A PROFESSIONAL CORPORATION

1

TABLE OF AUTHORITIES

CASES

Aguilar v, Atlantic Richfield Co., 25 Cal.4th 826 (2001)...ccccecsessscsssersseeseessercsneassenenssesnseneenses 4
Alcaraz v. Vece, 14 Cal Ath 1149 (1997)... cecsecssessesesseensseeesssesseesessssssessseanesssseercarseentarsssssoraenenes 5
Berry v. San Francisco and North Pacific R. Co., 50 Cal. 435 (1875). .......

Blain v, Doctor’s Co., 222 Cal. App.3d 1048 (1990). ...cecsesecsestestsssserssnsnrsserssenrsneeenersererensnsses 6
College Hospital, Inc. v. Sup. Ct., 8 Cal. 4th 704 (1994). ccccsesesesssssssiesssteessssssseaneessuecsonessanes 7
Jones vy. Ortho Pharmaceutical Corp., 163 Cal. App.3d 396 (1985)... ccsseseseeesssseresseesneerene 7, 8,9)
Knapp v. Doherty, 123 Cal. App.4th 76, 90 (2004).....cccccceesecseecsecsseenssesieeneeeonsesenceneeseeseeneenners 4
Ladd y. County of San Mateo, 12 Cal.4th 913, 917 (1996)... cccsesseeseeesceesenesesesneseeessersneneenees 5
People v. Kelly, 17 Cal.3d 24, 30 (1976) ..ccssessssssssssssenrssssnecnessssssssssacsnseessecsnessensasenneevenseeseesnenees 8

Pineda v. Ennabe, 61 Cal.App.4th 1403 (1998).
Scheiding v. Dinwiddie Const, Co., 69 Cal. App.4th 64 (1999). .ccscessseseeseesesseseersenesseencenenennes 5

STATUTES

Code Civil Proc., § 437¢

OTHER AUTHORITIES

CACT 1200. oo eccececcseeeseeecesseessaeeescesersnsssanessicovseensessecusesssesaneeneecansssecsusesnesnicesssauessnteatenesensennansnecanees

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT’ADJUDICATIONHAKE LAW,
A PROFESSIONAL CORPORATION

| MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

1 INTRODUCTION

Summary judgment is properly granted for Bragg Investment Company, Inc. (“Bragg”),
for two reasons, individually and collectively. First, Bragg owed no duty to plaintiff, because the
Bragg subsidiary that allegedly exposed plaintiff to asbestos did not even exist at the time of the
alleged exposure.

Second, plaintiff cannot meet his shifted burden of proving causation. No medical
evidence demonstrates more likely than not that exposure to asbestos causes colon cancer.
Hi. STATEMENT OF FACTS

A. Plaintiff's Complaint Alleged Exposure to Asbestos Caused Colon Cancer

Plaintiffs’ Third Amended Complaint alleged that Robert Ross was diagnosed with colon
cancer as a result of alleged exposute to asbestos. (UMF 1.) The Third Amended Complaint
pleaded causes of action against Bragg that sound in negligence/premises liability, strict product
liability, and loss of consortium. (UMF 2.)

B. Plaintiff's Only Bragg-Related Exposure: Working Near Bay Western
Industrial Maintenance Personnel in 1961-65

Plaintiff's only claimed asbestos exposure related to Bragg occurred in 1961-65 at the
University of Califomia, Berkeley, when plaintiff alleged he worked near and around personnel
employed by Bragg subsidiary Bay Western Industrial Maintenance, Inc. (“Bay Wester”).
(UMF 3.) The Berkeley site was the only location where plaintiff ever saw Bay Western
employees. (UMF 4.)

While plaintiff was familiar with Bay Western as a building maintenance company, he
could not recall the names of the two Bay Western employees he claimed he saw at the Berkeley
jobsite. (UMF 5.) He only identified them as Bay Western employees, because the words “Bay
Western” were printed on their hardhats. (UMF 6.) Plaintiff recalled no communications
occurring with Bay Western employees. (UMF 7.) Similarly, plaintiff could not identify any
documents to refresh his recollection regarding the work he performed near Bay Western

employees. (UMF 8.)Hake Law,
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Plaintiff did not recall in which building on the Berkeley campus he saw Bay Western
personnel, (UMF 9.) He could not think of any persons who could refresh his recollection
regarding the work performed near Bay Western employees. (UMF 10.) Plaintiff could not
recall the names of any co-workers, (UMF 11.)

Cc, Bay Western Incorporated in 1974

Bay Western filed its articles of incorporation on September 10, 1974. (UMF 12.) Bay
Western did not exist in any form before that date. (UMF 13.) Bay Western was not formed as
the result of a merger of any entities, nor have any entities ever been merged into Bay Western
from the date of its incorporation to the date Bay Western was sold to Bragg (as discussed
below). (UMF 14.) Bay Western never purchased the assets or assumed liabilities of any other
corporation, partnership, or business entity from the date of incorporation to August 20, 1987,
when Stockmar sold Bay Western to Bragg. (UMF 15.)

Neither Stockmar nor Bay Western ever directed, supervised, or used the employees of
other contracting companies or refinery personnel. (UMF 16.) Neither Stockmar nor Bay
Western ever supplied any such personnel with any instructions, directions, or equipment. (UMF}
17.)

Neither Stockmar nor Bay Western ever manufactured, sold, distributed, or supplied
asbestos-containing materials or products under any name or under any circumstances at any
time whatsoever. (UMF 18.)

D. Bragg Did Not Expose Plaintiff to Asbestos

Plaintiff testified that Bragg played no role in plaintiff’s work as an insulator. (UMF 19.)
Plaintiff did not associate Bragg with any product or service other than as an investment
company. (UMF 20.) It would be “speculation” to associate Bragg in any way to plaintiffs
claimed exposure to asbestos. (UMF 21.)

Plaintiff has never received any documents from Bragg. (UMF 22.) No known
documents would refresh plaintiff's recollection regarding Bragg. (UMF 23.) Plaintiff knows of}

no one to whom he could speak to refresh his recollection regarding Bragg. (UMF 24.)

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E. Asbestos Exposure Could Not Have Caused Plaintiff’s Colon Cancer

Stated simply, asbestos exposure could not have caused plaintiff's colon cancer.
Pathologist Khalil Sheibani, M.D., analyzed plaintiff's tissue samples. (UMF 25.) Dr. Sheibani
confirmed plaintiffs diagnosis of colon cancer, but he identified no asbestos bodies in plaintiff's
colon tissue samples. (UMF 26.) Accordingly, plaintiff's colon cancer is unrelated to plaintiff's
alleged asbestos exposure. (UMF 27.)

Mr. Ross has multiple, well-recognized causal factors for colon cancer found in the

general population not exposed to asbestos. As the Institute of Medicine reported,

the risk of colon and rectum cancer increases with age:
more than 90% of cases are diagnosed in people over 50
years old. Other risk factors for colon cancer are obesity
{especially in men), physical inactivity, heavy consumption
of alcohol and red or processed meat, a history of
inflammatory bowel disease, and a family history of colon
or rectum cancer, especially in persons under 40 years old.
‘Tobacco-smoking is an established risk factor for
ademomatous polyps, the main precursor of colon cancer.

(OM 2006 Report, p. 216, emphasis added [Morgan Exhibit D].)

Plaintiff is a 77 years old male who weighs 215 pounds (at a height of 5 feet and 11
inches, his body mass index of 30.0 is “obese”), and smoked a pack of cigarettes daily for 33
years. (UMF 28;
http://stanfordhospital.org/clinicsmedServices/COE/surgical Services/generalSurgery/bariatricsur
gery/resources/bmi_calculator.html?gclid=CLrT_ouwOyLUCFSRxQgodPRgAQw.)

Robert Morgan, M.D., who reviewed plaintiffs medical records and an array of peer-
reviewed medical literature, also opined to a reasonable degree of medical certainty, no evidence
supports finding a causal connection between asbestos exposure and colon cancer. (UMF 29.)
Dr. Morgan agreed with the findings of the Institute of Medicine (IOM) of the National
Academy of Sciences, which, after an exhaustive review of peer-reviewed medical literature,
concluded that at most, “the evidence is suggestive but not sufficient to infer a causal
relationship between asbestos exposure and colorectal cancer.” (UMF 30 [italics in original].)
Accordingly, Dr. Morgan opined that asbestos exposure neither caused nor contributed to

plaintiff's claimed colon cancer. (UMF 31.)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONHAKE Law,
A PROFESSIONAL CORPORATION

lil. LEGAL AUTHORITY

A. Authority for Motion for Summary Judgment or Adjudication

A party may move for summary judgment or adjudication when he or she contends the
non-moving party’s claims have no merit. Code Civil Proc., § 437c, subds. (a), ()(2) (“Section
437e”), The California Supreme Court articulated a two-part test to determine whether a moving!
party is entitled to summary judgment. First, the moving party must persuade the trial court that
there is no issue of material fact to preclude judgment as a matter of law, i.e., “that ‘one or more
elements of? the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete

defense’ thereto.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001) (citing Section

437c, subd. (0)(2)); see id. at p. 853 (“the defendant need not . . . conclusively negate any such
element”); “Aguilar’).

Second, the moving party “bears an initial burden of production to make a prima facie
showing of the nonexistence of any triable issue of material fact.” Aguilar at 850. Aguilar also
provides that how a party carries its burdens of persuasion and production depends on which
party bears the burden of proving the particular element(s) at trial. A defendant moving for
summary judgment “must present evidence that would require a reasonable trier of fact nof to
find any underlying material fact more likely than not. Aguilar at 851 (italics in original). The
pleadings set the boundaries of the issues to be resolved at summary judgment. Knapp v.
Doherty, 123 Cal.App.4th 76, 90 (2004). The moving party must support the motion with
evidence, e.g., declarations, responses to written discovery, and matters subject to judicial notice.
Section 437c, subd. (b)(1).

When a defendant has met this 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.” Section 437c, subd,
(p)(2). The opposition “may not rely upon the mere allegations or denials of its pleadings to
show that a triable issue of material fact exists but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists.” Id.; Aguilar at 843, 854 [providing

defendant must show plaintiff “cannot establish at least one element of the cause of action by

showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence”; see!

4.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADIUDICATIONHAKE Law,
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Section 437c, subd. (b)(3).}

A court shall grant the motion if the moving party is entitled to judgment as a matter of
law, i.¢., the moving papers demonstrate there is “no triable issue as to any material fact.”
(Section 437c, subd. (c).) “There is a triable issue of material 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.” Aguilar at 850. A plaintiff
cannot create a triable issue of fact by submitting a declaration contrary to his or her sworn

deposition testimony. Scheiding v. Dinwiddie Const. Co., 69 Cal.App.4th 64, 77 (1999).

B. Essential Elements of Negligence/Premises Liability Cause of Action

The elements of a negligence action are: (1) the defendant had a legal duty to conform to
a standard of conduct to protect plaintiff, (2) the defendant failed to meet this standard, (3)
defendant’s failure was the proximate or legal cause of the resulting injury, and (4) plaintiff was
damaged. Ladd v. County of San Mateo, 12 Cal.4th 913, 917 (1996).

A premises liability cause of action sounds in negligence. Pineda v. Ennabe, 61
Cal.App.4th 1403, 1407 (1998). The existence and scope of a duty to others to maintain property|
in a reasonably safe condition are questions of law for the court. See Alcaraz v. Vece, 14 Cal.4th|
1149, 1162, n. 4 (1997).

In matters involving exposure to asbestos, a moving defendant that contends it was not
present at a jobsite where plaintiff incurred exposure must proffer specific facts demonstrating
that the plaintiff cannot identify the defendant at that site. Scheiding, 69 Cal.App.4th at 81, 83-
84. The defendant may demonstrate such facts by, ¢.g., specifically asking plaintiff at deposition
about the presence of a defendant at a site. Id. at 80-81. A defendant may also ask whether any
witnesses or documents would refresh the plaintiff's recollection of facts regarding the
defendant’s presence at a site. Id. at 83-84.

Plaintiff Jean Ross's lost consortium claim is derivative of Robert Ross’s claims. Blain
vy. Doctor’s Co., 222 Cal.App.3d 1048, 1067 (1990).

Cc. Summary of Essential Elements of Product Liability Cause of Action

The sine qua non of a product liability claim is that the defendant allegedly distributed,

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ ADJUDICATIONHAKE Law,
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manufactured, and/or sold a product. CACI 1200. (Causation is also an essential element of all
of plaintiffs’ causes of action.)

D. Corporation Not Liable for Injuries Occurring Before Its Existence

Since the founding of the California Republic, it has been black-letter law that a
corporation is not liable for alleged injuries that occurred before its existence. The California
Supreme Court unanimously held in 1875 that as a matter of law, a corporate “defendant cannot

be made to respond for an injury done before it had an existence.” Berry v. San Francisco and

North Pacific R. Co., 50 Cal. 435, 438 (1875) (“Berry”).

In Berry, the plaintiff alleged that the defendant railroad corporation injured plaintiff's
land on February 15, 1871. Berry, 50 Cal. at 436. At trial, the Superior Court denied the
company’s request to introduce evidence of its articles of incorporation that were filed on June
22, 1872. Berry, 50 Cal. at 437. The railroad appealed judgment entered for the plaintiff. Berry,
50 Cal. at 437. The California Supreme Court reversed judgment for plaintiff. Although
individual persons may be held liable for their wrongful acts that occurred before the railroad’s
incorporation, the corporation itself “cannot be made to respond for an injury done before it had

an existence.” Berry, 50 Cal. at 438; see College Hospital, Inc. v. Sup. Ct., 8 Cal.4th 704, 726

(1994) (“a corporation cannot confirm and accept that which it does not actually know about”).

E. Medical Causation: To Survive Dispositive Motion, Resisting Plaintiff Must
Produce Evidence that Exposure More Likely than Not Caused Injury

To survive a dispositive motion, a resisting plaintiff must produce evidence that exposure:
to a product, more likely than not, caused his or her claimed injury. Jones v. Ortho
Pharmaceutical Corp., 163 Cal.App.3d 396, 402-403 (1985). (Causation is an essential element
of all causes of action pleaded against Bragg.) The Jones plaintiff alleged that the defendant’s
drug caused her cancer. Jones, 163 Cal-App.3d at 399. At the close of plaintiff's case in chief,
the trial court granted defendant’s motion for nonsuit, because plaintiff's evidence was
insufficient to support a prima facie claim that the drug caused or contributed to plaintiff's

cancer. Jones, 163 Cal.App.3d at 399.HAKE LAW,
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Plaintiff's first expert witness, Dr. Catlin, testified that “‘there is a reasonable medical

possibility,’ defined as less than a fifty-fifty chance, that the drug contributed to the development

of plaintiff's cancer.” Id. at p. 401 (emphasis added). Plaintiff's other expert, Dr. Policar, was
“unwilling” to testify that the drug was a possible cause of plaintiff's condition. Id. at p. 401.
The trial court ruled that this evidence was not sufficient for the jury to “reasonably base
a finding of causation.” Id. at p. 402. Plaintiff's evidence only permitted “speculation” and
“conjecture,” because “mere possibility [of causation] is insufficient to establish a prima facie
case.” Id. at p. 402 (citations omitted).
Instead of a “possibility,” a plaintiff must proffer evidence of medical probability, Le.,
that the product at issue more likely than not caused plaintiff's claimed harm:
That there is a distinction between a reasonable medical
‘probability’ and a medical ‘possibility’ needs little discussion.
There can be many possible ‘causes,’ indeed, an infinite number of
circumstances which can produce an injury or disease. A possible
cause only becomes ‘probable’ when, in the absence of other
reasonable causal explanations, it becomes more likely than not

that the injury was a result of its action. This is the outer limit of
inference upon which an issue may be submitted to the jury.

Jones, 163 Cal.App.3d at 403 (citation omitted) (emphasis added); see People v. Kelly,
17 Cal.3d 24, 30 (1976) (scientific evidence and expert opinions must be founded on reliable
methodology and be generally accepted within the scientific community).
A contrary rule would allow a plaintiff to presume causation, reversing the burden of
proof without any statutory or judicial authority:
Presumption of causation would be tantamount to a presumption of
the instrumentality which caused the injury. Such a quantum leap
is justified by neither logic, legal precedent nor public policy.
Jones, 163 Cal.App.3d at 406.
Accordingly, the Court of Appeal for the Second District unanimously affirmed granting
the nonsuit. Id. at 406 (noting “there is a limit to the number of presumptions in which the court
will indulge solely for the purpose of assisting plaintiff in proving a case, especially when there

is no evidentiary starting point from which those presumptions can flow”).

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F-"RIEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Iv. ARGUMENT

A. Bragg Owed No Duty to Plaintiffs before Bay Western Existed

Regarding plaintiff's negligence claims, no known law, fact, or policy supports even an
inference that Bragg owed any duty to plaintiffs that arose before Bay Western existed. Plaintiff
admitted his only claimed exposure related in any way to Bragg occurred when plaintiff worked
near Bay Western personnel 1961-65. (UMF 3-11.) However, plaintiffs cannot dispute that Bay
Western did not even exist until it was incorporated in 1974. (UMF 12-24.) Following Berry at
438, Bay Western “cannot be made to respond for an injury done before it had an existence.”

Regarding strict product liability, plaintiffs do not, and cannot, create a triable issue of
fact. Neither Stockmar nor Bay Western ever manufactured, sold, distributed, or supplied
asbestos containing materials or products under any name or under any circumstances. (UMF
17-24.) Plaintiff also testified he did not associate Bragg with any product or service other than
as an investment company. (UMF 17-24.)

B. Plaintiffs Cannot Meet Shifted Burden to Prove Asbestos Caused Colon
Cancer

Even if plaintiffs could prove that Bragg owed a duty (and they cannot), plaintiffs cannot
meet their shifted burden to prove that asbestos caused Mr. Ross’s colon cancer for three
reasons. First, the Morgan and Sheibani medical declarations demonstrate Mr. Ross cannot
prove asbestos caused is colon cancer. UMF 1, 25-31; Aguilar at 850; Jones, 163 Cal.App.3d at}
403. These shift the burden to plaintiffs to produce evidence that, more likely than not, asbestos

exposure caused Mr. Ross’s colon cancer. Aguilar at 850; Jones, 163 Cal.App.3d at 403.

Second, plaintiff shares multiple, well-recognized causal factors for his colon cancer with
the general population that was not exposed to asbestos, €.g., age, obesity, and cigarette smoking,
UME 28. Plaintiffs cannot produce evidence to exclude these strong possibilities as causes for
his colon cancer. See Jones, 163 Cal.App.3d at 403.

Finally, a ruling that denied the motion would essentially presume causation without any

known basis found in authority, fact, or policy. Jones, 163 Cal.App.3d at 406.

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Vv. CONCLUSION

Summary judgment is properly granted for Bragg for two reasons, individually and
collectively. First, Bragg owed no duty to plaintiff, because the Bragg subsidiary that allegedly
exposed plaintiff to asbestos did not even exist at that time. Second, plaintiff cannot meet his
shifted burden of proving causation, because no medical evidence demonstrates more likely than
not that exposure to asbestos causes colon cancer.

Respectfully submitted,

Dated: February 21, 2013 HAKE LAW,
A PROFESSIONAL CORPORATION

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By: t (i Cw! so
William M. Hake, Esq.
Duncan S$, Lemmon, Esq.
Steven A. Kronenberg, Esq.

Attorneys for Defendant
BRAGG INVESTMENT COMPARTIR