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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                a

Co em TKN OH he RN Oe

ke NR oP RP RW OR ON NY Be ee oe ee ee Re
SoS 2a HU F&F BN SF SF FC Ba RH BF BK SF S

aw Dpecen oF
LARSON & BURWHAM

Jeffrey S, Gillespie, State Bar No. 192495
Walter C. Rundin, State Bar No. 072475
BURNHAM BROWN

A Professional Law Corporation

P.O, Box 119

Oakland, California 94604

1901 Harrison Street, 14th Floor
Oakland, California 94612

Telephone: — (510) 444-6800

Facsimile: (510) 835-6666

Attorneys for Defendant
CALIFORNIA DRYWALL CO.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

FEB 21 2013

Clerk of the Court
BY: ALISON AGBAY
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO

UNLIMITED J

ROBERT ROSS and JEAN ROSS,

Plaintiffs,
Vv.
C.C, MOORE & CO. ENGINEERS;
Defendants As Reflected on Exhibit 1
attached to the Summary Complaint herein;
and DOES 1-8500,

Defendants.

URISDICTION
No, CGC-10-275731

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT CALIFORNIA
DRYWALL CO.’S MOTION FOR
SUMMARY ADJUDICATION

Date:

Time:
Dept.:
Judge:

May 9, 2013

9:30 a.m,

503

Hon. Teri L. Jackson

3rd Amend Cmplt Filed: May 11, 2012
Trial Date: June 10, 2013

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEF.

No, CGC-10-275731

CALIFORNIA DRYWALL CO.’S MOTION FOR SUMMARY ADJUDICATIONCo ey DAH Rh BY NR

No, OR RMR B® RP OR ON OR BE BR Oe
oe o2U FA & & 8 NHN SF SSO B&B WR HR SB YB HY KF S

I, . INTRODUCTION

This is a personal injury action arising from Plaintiff ROBERT ROSS” (“Plaintiff”) alleged
exposure to asbestos. His wife JEAN ROSS has filed a loss of consortium claim. Plaintiffs allege
that Plaintiff has sustained asbestos-related injuries resulting from his exposure to a plethora of
asbestos-containing products while he worked primarily as an insulator for a period of over 30 years
spanning from 1959 to 1993. Plaintiffs have named and sued over 100 defendants in this case,

Plaintiffs have asserted a cause of action against California Drywall, Co. which is premised
on a strict product liability theory. As California Drywall is a service provider, and is not a
manufacturer, distributor or seller, it is not subject to strict liability theories or causes of action.
Thus California Drywall is entitled to summary adjudication.

i FACTS
A. Background Of The Plaintiff And Relevant Allegations

Plaintiff ROBERT ROSS worked primarily as an insulator for numerous contractors for
over 30 years spanning from 1959 to 1993, Plaintiff alleges that the acts or omissions of
California Drywall caused his injuries based on a theory of strict liability. His wife, JEAN ROSS
has asserted a loss of consortium claim. (Separate Statement of Undisputed Material Facts
[*UME”] No. 1.) Plaintiffs allege that he sustained asbestos-related personal injuries as a result
of working with and around numerous asbestos-containing products throughout his working life
and while primarily employed as an insulator who worked for numerous employers at a myriad
of job sites. (UMF No. 1.)

B. Plaintiffs’ Discovery Responses Regarding Contentions Against
California Drywall

California Drywall propounded Special Interrogatories upon the Plaintiffs in this case
seeking to determine the facts, witnesses and documents supporting their claims against this
defendant, (UMF No. 7.) In responses to California Drywall’s Special Interrogatories, the
Plaintiffs provided no facts, witnesses or documents to support contentions that California Drywall

is liable pursuant to a strict liability theory in this action, (UMF No. 8.)

1

MEMORANDUM GF POINTS AND AUTHORITIES IN SUPPORT OF No. CGC-10-275731
DEF, CALIFORNIA DRYWALL CO.’$ MOTION FOR SUMMARY

ADJUDICATIONCO Ww DR Hh BB BN me

® MP YP YP RP RP BR RP BP Be ROR BR ee ee OR Re
ec FA HW fF BF BP Se SF Sm BW DH MH HB MR = S

Cc. Facts About California Drywall

California Drywall is and has always been a drywall contractor installing drywall since
its incorporation in 1953. (UMF No. 3.) California Drywall has never manufactured drywall or
drywall accessory products like tape, joint compound, topping compound and texture materials,
(UMF No. 3.) California Drywall has never supplied or distributed drywall products to the
public or other drywall installers, as it is not a retailer of these products. (UMF No. 4.)
California Drywall never had a store, showroom or other space where members of the public can
purchase drywall materials. (UMF No. 5.) Instead, California Drywall employees used the
drywall products of several manufacturers in the course of providing its drywall installation.
services, and, in accordance with specifications set forth by others. The drywall products it used
in the course of its installation services were historically purchased from a local supply house.
(UMF No. 6.)

UL LEGAL ANALYSIS

A. Plaintiff's Missing Element
As confirmed in Aguilar v. Atlantic Richfield Company, 25 Cal. 4th 826 (2001), a

unanimous opinion of the California Supreme Court by J. Mosk:
[T]he 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, 25 Cal. 4th at 843 (emphasis added).

California Drywall contends that no trial of Plaintiffs’ cause of action for strict liability is
necessary because Plaintiffs have no evidence which establishes or tends to establish that
California Drywall was a “seller” of drywall products as that term has been used and defined in
the context of strict liability theories. Instead, the undisputed evidence establishes that California
Drywall is a service provider: it installs and finishes drywall. In short, Plaintiffs’ strict liability
case of action against California Drywall has “no merit,” because Plaintiffs cannot establish
essential elements of their claim (1.¢., that California Drywall is a “seller”).
it ,

Hf

2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF No. CGC-10-275731
DEF. CALIFORNIA DRYWALL CO.’S MOTION FOR SUMMARY
ADJUDICATIONwv ey RD HR RR WH Ne

Rw RR NR NR ON OR NR OR Be POR Oe ee ee See
2S 3a A A F YW NN EF SS Be A AD Re Re BN KF Ss

B. Applicable Standard Of Proof

Plaintiffs’ second cause of action can survive this motion only by Plaintiffs raising a
triable issue of material fact regarding California Drywall’s status as a “seller” which would
make it potentially liable under strict liability theories. The California Supreme Court “granted
review in Aguilar to clarify the law that courts must apply in ruling on motions for sununary
judgment... .” Aguilar, 25 Cal. 4th at 837 (emphasis added). Aguilar specifically instructs that:

There is a triable 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. In Readers’
Digest Assn. vy, Superior Court (1984) 37 Cal. 3d 244, 252... . we held to the
effect that the placement and quantum of the burden of proof at trial were crucial
for purposes of summary judgment, expressly as to the burden’s placement and
impliedly as to its quantum.

Id, at 850 (footnote omitted; emphasis added).

Plaintiffs will bear the burden of proof regarding California Drywall’s status as a “seller”
at trial. The “burden of proof” means “the obligation of a party to establish by evidence a
requisite degree of belief concerning a fact in the mind of the trier of fact or the court... .” Cal.
Evid. Code § 115.

Here, the “underlying facts” at issue is California Drywall’s status as a “seller.” Here,
the “requisite degree of belief” will be a preponderance of the evidence. Id, BAJI No. 2.60
provides, in. part:

“Preponderance of the evidence” means evidence that has more convincing force

than that apposed to it. Lf the evidence is so evenly balanced that you are unable

to say that the evidence on either side of an issue preponderates, your finding on
that issue must be against the party who had the burden of proving it.

BAJI; Cal. Jury Instruction No. 2.60 (7th ed. 1994).
Cc. Application Of Aguilar

Aguilar clarifies this Court’s precise role in determining the existence of a triable issue
of fact, mandating a trial on the merits. In short, Plaintiffs’ evidentiary showing in opposition to
this motion must be sufficient, in the opinion of this Court, for a reasonable trier of fact to find
for itself that it is more likely than not that California Drywall was a “seller” for purposes of
making it subject to a strict liability cause of action.

if

3

MEMORANDUM OF POINTS AND AUTHORIITES IN SUPPORT OF ~ No. CGC-10-275731
DEF. CALIFORNIA DRYWALL CO.’8 MOTION FOR SUMMARY

ADJUDICATIONeC 6 WV DH ® WwW MR

RP RP RP MR RP RP RR Be eR ee Oe Se
es 2 Am FF G8 Pb Ss SS we It RHR He Re BH YH me S

Aguilar also claims that the court may not weigh the plaintiff's evidence or
inferences against the defendants’ as though it were sitting as the trier of fact.
We agree here as well.

But, even though the court may not weigh the plaintiff's evidence or inferences
against the defendants’ as though it were sitting as the trier of fact, it must
nevertheless determine what any evidence or inference could show or imply to a
reasonable trier of fact. Aguilar effectively admits as much. In doing so, it does
not decide on any finding of its own, but simply decides what finding such a trier
of fact could make for itself. (Citations omitted.)

Thus, if the court determines that any evidence or inference presented or drawn
by the plaintiff indeed shows or implies [that California Drywall is a “seller” or
working in the proximity of the Plaintiff] more likely than [the absence of such a
finding], it must then deny the defendants’ motion for summary judgment even in
the face of contradictory evidence or inference presented or drawn by the
defendants, because a reasonable trier of fact could find for the plaintiff. Under
such circumstances, the [“seller” or in the presence of the Plaintiff] issue is
triable—that is, it must be submitted to a trier of fact for determination in favor of
either the plaintiff or defendants, and may not be taken from the trier of fact and
resolved by the court itself in the defendants’ favor and against the plaintiff.

But if the court determines that all the evidence presented by the plaintiff, and all
the inferences drawn therefrom, show and imply [that California Drywall is not a
“seller? or working in the proximity of the Plaintiff] only as likely as [such a
finding] or even less likely, it must then grant the defendants’ motion for
summary judgment, even apart from any evidence presented by the defendants or
any inferences drawn therefrom, because a reasonal le trier of fact could not find
for the plaintiff. Under such circumstances, the [“seller” or in the presence of the
Plaintiff ] issue is not triable — that is, it may not be submitted to the trier of fact
for determination in favor of either the plaintiff or the defendants, but must be
taken from the trier of fact and resolved by the court itself in the defendants”
favor and against the plaintiff.

Aguilar, 25 Cal. 4th at 856-57 (footnote omitted),

D. Burden Of Proof Applicable To This Motion
It is settled law that following the 1992 and 1993 amendments to Califortiia Code of

Procedure Code section 437c, a moving defendant need not support his motion for summary
judgment with affirmative evidence negating an essential clement of Plaintiffs’ case. Aguilar
confirms this principle:

Neither does summary judgment law in this state any longer require a defendant
moving for summary judgment to conclusively negate an element of the
plaintiff's cause of action. In this particular too, it now accords with federal law.
All that the defendant need-do is to “show [ | that one or more elements of the
cause of action ... cannot be established” by the plaintiff. (Civ. Proc, Code

§ 437c, subd. (0)(2).) [A]s Justice Chin stated in his concurring opinion in Guz
“given the difficulty of proving a negative, .. . a test” requiring conclusive
negation “is often impossibly high.”

4
“MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ~~ No. CGC-10-275731
DEF. CALIFORNIA DRY WALL CO.'S MOTION FOR SUMMARY
ADJUDICATIONcet A Rh eR BY Pe

wR RP My RP NN RR NP YP Pe HB Be oR Re eB Re Se eS
ecw KR mh FO HN SF SF Se BDH eH Fw NH KF S

Aguilar, 25 Cal. 4th at 8534-54 (footnote omitted; citation omitted), Rather, the party moving
for summary judgment bears (1) the burden of persuasion that there is no triable issue of material
fact; and (2) an initial burden of production to make a prima facie showing of the non-existence
of any triable issue of material fact (Le., a showing “sufficient to support the position of the party
in question”). Id. at 850-51. The burden of persuasion is not a burden of proof and never shifis
to the non-moving party; rather, the moving party must persuade the Court that there is no
material fact for a reasonable trier of fact to find, and not prove any such fact to the satisfaction
of the Court itself as though it were sitting as a trier of fact, Id. at 850, footnote 11.

In contrast, the moving party’s initial burden of production to make a prima facie
showing of the non-existence of the triable issue of material fact, if carried, does cause a shift,
and obligates the opposing party to satisfy his own burden of production to make a prima facie
showing of the existence of the issue of the material fact. Id,

K. California Drywall Has Met Its Initial Burden Of Production

A defendant may satisfy its initial burden of production on summary judgment by showing
that the plaintiff does not possess and cannot reasonably obtain needed evidence as to an essential
element. Aguilar, 25 Cal. 4th at 854-55. However, a moving party may not meet its initial burden
on summary judgment simply by pointing to an absence of evidence to support an element of the
plaintiff's case. Id. Rather, the moving defendant must make an affirmative showing that the
plaintiff cannot do so by supporting its motion. with evidence including affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which judicial notice may be
taken. Id, at 855 (emphasis added). As such, factually devoid discovery responses are sufficient to
shift the burden of proof in connection with summary judgment (or adjudication) and require
plaintiff to support their claims with evidence. Union Bank v. Superior Court, 31 Cal. App. 4th at
580-581 (1995), These responses are circumstantial evidence showing that Plaintiff docs not possess

and cannot reasonably obtain needed evidence. Scheiding v. Dinwiddie Construction, 69 Cal. App.

4th 64, 80 (1999); Union Bank, 31 Cal. App. 4th at 590.

i

5
“MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF No. CGC-10-275731

DEF. CALIFORNIA DRYWALL CO.’S MOTION FOR SUMMARY
ADJUDICATIONewe Ww A HW RB WY

—
_- >

2

Here, California Drywall meets its burden of production in moving for summary
adjudication by presenting evidence showing that no triable issue of fact exists with respect to
the elements necessary to support a strict liability cause of action, California Drywall
accomplishes this by presenting the declaration of Kent Bowles (discussed infra) and Plaintiffs’
discovery responses obtained during the discovery process.

Factually devoid responses to interrogatories are sufficient to shift the burden of proof in
connection with summary judgment and require plaintiff to support their claims with evidence.
Union Bank, 31 Cal. App. 4th at 580-581. In Andrews v. Foster Wheeler, 138 Cal. App. 4th 96
(2006), the court specifically examined an asbestos plaintiff's responses to a defendant’s special
interrogatories to determine whether they were factually devoid and thereby showed that
plaintiff could not prove causation, The court held that a plaintiff's responses to state-all-facts
interrogatories are factually devoid when they contain “little more than general allegations” and
fail to state specific facts that the plaintiff was “actually exposed to asbestos-containing
material” from a defendant’s products. Id. at 15.

In this case, Plaintiffs’ responses to California Drywall’s contention interrogatories are
similar to those held to be insufficient in Andrews and are factually devoid. California Drywall
specifically requested that Plaintiff state each fact supporting his allegations against California
Drywall. (UME No. 7.) Plaintiffs’ responses provide no facts suggesting that California
Drywall was a “seller” of asbestos-containing products. (UMF No. 8.) Therefore, the responses

are factually devoid and do not provide evidence against California Drywall.

F. California Drywall Did Not Manufacture, Sell Or Distribute
Asbestos-Containing Materials, Plaintiffs’ Theories Of Strict Liability
Must Be Dismissed

California Drywall has provided affirmative evidence that California Drywall has never
manufactured, retailed, supplied or distributed drywall products. (UMF Nos. 2-6.) Instead, it is
undisputed that that California Drywall is a contractor that provides drywall installation services.
(UME Nos. 2-6.) California courts have consistently refused to extend the doctrine of strict liability
to service providers, such as contractors, engineers and physicians. ‘The rationale has been that these

service providers are not “sellers” pursuant to the Restatement (Second) of Torts section 402A.

6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF No, CGC-10-275731
DEF. CALIFORNIA DRYWALL CO.’S MOTION FOR SUMMARY
ADJUDICATIONew ey AH & BW NY

we RR MP NR NR NR BR Be ee Ee ee oe Be Re SE le
eo a a hw & Be HN Fe Ss SC BAI DR &F HB YP KF SF

Therefore, Plaintiffs cannot pursue a claim of strict liability against California Drywall, a drywall
subcontractor.
Section 402A of the Restatement Second of Torts imposes strict liability on the seller of

a product for physical harm to the user or consumer, and provides in pertinent part:

(1) One who sells any product in a defective condition and reasonably dangerous
to the user or consumer or to his property is subject to liability for physical
harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.

Id.
In Monte Vista Development Corp. v. Superior Court, 226 Cal. App. 3d 1681 (1991), the

court held that Willey Tile, the subcontractor who installed a defective soap dish, was not a
“seller” of the soap dish pursuant to section 402A of the Restatement (Second ) of Torts, The
court noted that “Willey Tile was not in the business of selling soap dishes or any other fixtures.
It purchased the soap dish that injured Plaintiff, as well as other fixtures, in order to complete its
subcontract with Monte Vista. Id, at 1687.

The Monte Vista decision is directly on point and Willey Tile is analogous to
subcontractor defendants such as California Drywall, in asbestos litigation. Like Willey Tile,
California Drywall provides the service of installing drywall products, and at times purchases the
products in order to provide this service. It is not a seller or supplier of the products for the
purpose of imposing strict liability.

Courts in other states have interpreted section 402A of the Restatement (Second) of Torts
in the same way as the court in Monte Vista, and similarly refused to hold contractors and

subcontractors strictly liable for products they installed. In Scordino v. Hopeman Brothers, Inc.,

662 8. 2d 640 (1995), the Supreme Court of Mississippi held that a contractor who installed fire-
resistant wall paneling was not liable to Plaintiff for asbestos-related personal injuries under the
doctrine of strict liability, because it was a subcontractor who “merely supplied the materials to
complete the service for which it was hired pursuant to the contract between the parties,” Id, at

645, In Delta Refining Co, v. Procon, Inc., 552 $.W. 2d 387 (Tenn. App. 1976), a Tennessee

4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF No. CGC-10-273731
DEF, CALIFORNIA DRYWALL CO.’S MOTION FOR SUMMARY

ADJUDICATIONee a DA Hh eR RON

Rm WR YP RR YP RB RP KR RP Be Ee oe eS Se eB eS
So 2a Aw & YY BR BF S 6 eR KH HF FF YB N KF S

court held that a general contractor who purchased and installed a defective pump was not
strictly liable because it was not in the business of selling such pumps.”

The California courts have employed a similar analysis for engineers and architects,
refusing to hold them strictly liable because they are service providers, In Stuart v. Crestview
Mutual Water Co., 34 Cal. App. 3d 802 (1973), an engineering and construction firm designed,
engineered and constructed a water system to be used for fire protection services. The court did
not hold the engineers strictly liable, reasoning that they rendered a professional service and
were not analogous to manufacturers who place products on the market and were therefore in the
best position to spread the costs of injuries resulting from defective products. The court in

Swett v. Gribaldo, Jones & Associates, 40 Cal. App. 3d 573 (1974), held that a soils engineer

was not strictly liable for cracks caused by unstable soil. In Huang v. Garner, 157 Cal. App. 3d

404 (1984), the court held that building designers and civil engineers were not strictly liable,
Another analogous situation in which courts have refused to impose strict liability. is the

health care arena. Courts have declined to apply strict liability to physicians who prescribe

drugs, Carmichael v. Reitz, 17 Cal. App. 3d 958 (1971), to pharmacists who sell drugs,

Murphy v. E.R. Squibb &Sons, Inc,, 40 Cal. 3d 672 (1985), to hospitals that supply pacemakers,

Hector v.. Cedar-Sinai Medical Center, 180 Cal. App. 3d 493 (1986), and to commercial

suppliers of blood and blood products, Fogo v. Cutter Laboratories, Inc., 68 Cal. App. 3d 744
(1977), because these individuals or entities are providers of services. These physicians,
pharmacists, hospitals and commercial suppliers are all involved in the distribution system for
the drugs, blood and medical devices in question. Nonetheless, under the well-established
California law, they are not subject to strict liability because they merely provide a service.
They are not sellers or suppliers of the products, and are not in the commercial marketing chain.
California courts have clearly refused to extend the strict liability doctrine to service
providers, including contractors, engineers, architects and health care providers. Because
California Drywall used products in the course of providing the service of installing interior

drywall, they cannot be held strictly liable as the seller or supplier of asbestos containing

8
“MEMORANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF No. CGC-10-275731
DEF. CALIFORNIA DRYWALL CO.’S MOTION FOR SUMMARY
ADJUDICATIONCoe RB AD Hh ee BD Dm

wmoNM RW R RW MY RR YP Fe Se RB OF ee Be SB Oe eS
SB 2A mw & F&F BP SF SF GC ee BR DH HR eB BW N HK SF

products under California law. Thus, Plaintiff's second cause of action cannot be established as
a matter of law.

G. California Drywall Cannot Be Liable for Plaintiff Jean Ross’ Claim
for Loss of Consortium

Plaintiff JEAN ROSS is asserting a cause of action for loss of consortium based on the
alleged injuries suffered by her husband, Plaintiff ROBERT ROSS. This claim is dependent on
the liability of other claims asserted in the underlying personal injury case. See Rodriguez v.
Bethlehem Steel Corp., 12 Cal. 3d 382, 408 (1974) Since California Drywall is entitled to
summary adjudication on the claim based upon strict liability asserted by Plaintiffs, this cause of
action fails on those grounds as a matter of law.

Iv. CONCLUSION

Case law does not support pursuit of Plaintiffs’ claim of strict liability because California
Drywall did not manufacture, supply, or distribute drywall products. Instead, California Drywall
has provided affirmative competent evidence that it is a service provider that used drywall
materials in the course of its drywall installation and finishing services. {t simply is not a
“seller” or in the business of selling chattels as contemplated by the Restatement of Torts
(Second) sections 402A or 402B. Therefore, California Drywall respectfully requests that

summary adjudication be granted in its favor and against Plaintiffs.

DATED: February 21, 2013 BURNHAM BROWN

filet JhAn

WALTER C, RUNDIN
Attorneys for Defendant :
CALIFORNIA DRYWALL CO.

4815-4102-3762, v. 1

9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF No. CGC-10-275731
DEE, CALIFORNIA DRYWALL CO.’8 MOTION FOR SUMMARY
ADJUDICATION