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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                1 JASON J. CURLIANO [SBN 167509]
GEORGE 8. SULLIVAN [SBN 187793]
2 | BUTY & CURLIANO LLP
555 ~ 12" Street, Suite 1280 ELECTRONICALLY
3 | Oakland, California 94607 FILED
Tel: 510.267.3000 Superior Court of California,
4 Fax: 510.267.0117 County of San Francisco
Email: jasonc@butycurliano.com FEB 20 2013
5 Jsullivan@butycurliano.com Clerk of the Court
6 | Attorneys for Defendant: BY: CAROL oA sepuly clerk
HAROLD BEASLEY PLUMBING & HEATING, INC.
7
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO —- UNLIMITED JURISDICTION
il
12 ROBERT ROSS and JEAN ROSS, ) No. CGC-10-275731
)
13 Plaintiffs, )
) DEFENDANT HAROLD BEASLEY
14 v. ) HEATING & PLUMBING, INC.’S
) MEMORANDUM OF POINTS AND
15 C.C. MOORE & CO. ENGINEERS; et al., ) AUTHORITIES IN SUPPORT OF
) MOTION FOR SUMMARY JUDGMENT.
16 Defendants. ) OR, ALTERNATIVELY, SUMMARY
UW ) ADFUDICATION
)
) Date: May 8, 2013
18 ) Time: 9:30 a.m.
) Dept: 503
19 )
) Trial: June 10, 2013
20 )
21 }
22
23
24
25
26
27
28
pater DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
Saga CA So? MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION28

BUTY & CURLIANO LLP
S85 12" Srnec?

i.

TABLE OF CONTENTS

INTRODUCTION 0... .ccccecceeeeeeenerne eee ee seen reer enie eee eciaseeerenaseereeeeeeennieaaeneeeenas 1

UNDISPUTED MATERIAL FACTS. 00.00. cccccecseeeeeeeeeceeeeeseeeeeeeceeeneeea ness eessaeense 1
The Pleadings......... cece ccc ccee eee eeeere eee eeeee sau saaeeeeeeeeeeeeeeuegeeeernereneeeees 1
Mr. Ross’s Work For Local 16 From 1959 Through The 19908 .........ccccccecseeeees 1
Plaintiffs’ Exposure Claims Against Beasley ..........0. cece receeeeeer esse a eeeeeen 2
1. McKinleyville High School.........c..ceccccccceeecssssseeversceneeeesnerseeeeanenes 2
2. St. Patrick High School......... cece eee eet ree reer eeereeeeagnenrinneeeee 2
3. Fairfield Hospital... 000... ccccccceeeeseeceeeeeeseeese nse eeveeeeeeevenanineeeeeeee 2

D. Mr. Ross and Local 16 Were Sophisticated Users of Asbestos by 1961 ................ 3
1. Mr. Klimack’s Involvement in Local 16 .........22.ccceseeessecececerteeseeeeeeees 3

2. Local 16 Recognized Asbestos Was a Hazard by the Late 1950s ...

3. Local 16 Sought to Prevent Asbestos Exposure and Screened for

Asbestos Diseases by the Late 1950...........ccccecssseceseeeeeseeeneeeeeeeneeraas 5
4. Mr. Klimack Advised Insulation Contractors Asbestos Was Hazardous
During 1960 and 1961 0.00... cece e cece rent nena eset age eaaeeaaeaaeed 6
E. Beasley Did Not Know Nor Should It Have Known Asbestos Was Hazardous
When its Plumbers Worked Around Mr. Ross Between 1961 and 1979.............. 6
F. Plaintiffs’ Discovery Responses Establish They Lack Necessary Evidence ........... 8
LEGAL ANALYSIS... cocci cc cece ee eee eet eb renin reer e beet teeter tin tnceia pees 8
A Summary Judgment Is Mandated When An Action is Meritless..............:c:s0004 8
B. Beasley Was Not Negligent Because There is No Evidence it Acted
Unreasonably or Without Due Care... scisssssseesessssesseeseessseerssnesseesneneeeessnsaees 9
1. Mr. Ross Was a Sophisticated User of Asbestos...
2. Beasley Acted Reasonably and With Due Care .........ccccsseceeeseereeesens 12
3. Plaintiffs Do Not Possess Evidence Beasley Acted Unreasonably.. 13
C. Plaintiffs’ Strict Liability Cause of Action is Unsupported .. 13
D. Jean Ross’s Loss of Consortium Claim Is Not Actionable................::seseeeeee 14
CONCLUSION... esssesssosecssssesssessnsseesssseessesssssecssnesasssesesssseresssneesssnsessnsecssseecsseressevsessnserssnes 15
i

TABLE OF CONTENTS AND TABLE OF AUTHORITIESco 0 me NY DR mA B® WN

28

BUTY BCURLIANO LEP
385 12" SiReer

Sere 1200

OAKLAND CA 84667

510.207.3000

TABLE OF AUTHORITIES
Cases

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4® 826... cossiess sss sieve ster sne sens sees oe 849, 10
Andrews v. Foster Wheeler LLC (2006) 138 Cal. App.4! 96... c2.csccscce cuss cee cer tee testes tester tener 13
Artiglio y. Corning Inc. (1998) 18 Coal 4 604.0. oe cc ccc cec sec cce cee see ces cesses tee ceee see cut sun ane ees ees senees)

Bily v. Arthur Young & Co. (1992) 3 Cal.4" 370, 396...
Brandenburg v. Pacific Gas and Electric Co. (1946) 28 Cal.2d 282.0... soccer tee ee ee D, 12
Bullis y. Security Pacific National Bank (1978) 21 Cal.3d 801 00.000. sec sees cence cece tee tes tee eee eee
Cabral v. Ralphs Grocery Co. (2011) 51 Cal." 764... co.cc see cesses ces sesses set sat sae see ces sees eer enseneee LO
Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal App.4® 962. cescss esses ses veseeee ces eorsee ses soe ene eee eos 8, 10
Jablonski v. Royal Globe Ins. Co. (1988) 204 Cal.App.3d 379...

Johnson v. American Standard, Inc. (2008) 43 Cal. 56 woos ccc tee sees vee dd, 12
Monte Vista Development Corp. v. Superior Court (1991) 226 Cal.App.3d 1681 ........0...4.13, 14
Tucker v. Lombardo (1956) 47 Cal.2d 459... cece cee see cece ses cn ese es con see sae tes ees nessa tes ne aneeasane se eneD)
Union Bank v. Superior Court (1995) 31 Cal. App.4" 573... cs cccceccec see ves eer r ene ane eeeceeetes enn ene eee LO

Statutes
Code Civ. Proc. § 4370(a) i.e cece cecceen eee neee cece eter eases arene eeeeeeeeeesa ern eeeeeeeenniapee ered 8
Code Civ. Proc. § 437e(c)...
Code Civ. Proc. § 437c(p)(2)... 0 ce eeeecceeeeeeeeee sense ee cece arses rene nenreeeeespeasaaaeeeeeessuennannenees 8

ii

TABLE OF CONTENTS AND TABLE OF AUTHORITIES28

BUTY &CURLANOLLP.
585-12" STREET
‘SUITE 120

OAKLAND CA 94807
‘810.287 3000

L INTRODUCTION

Plaintiff Robert Ross worked as a union asbestos worker for more than 30 years and was a
sophisticated user of asbestos products, Defendant Harold Beasley Plumbing & Heating, Inc.
(“Beasley”) was a small plumbing contractor. Unlike Mr. Ross, Beasley did not possess any
knowledge concerning the hazards associated with asbestos exposure when Mr. Ross worked
around Beasley’s plumbers at three jobsites between 1961 and 1979. During these jobs, Mr. Ross
wore a mask because the International Association of Heat & Frost Insulators and Asbestos
Workers Union (“Asbestos Workers Union”) knew breathing asbestos dust was hazardous.

To prevail at trial, plaintiffs must establish Beasley breached a duty care to Mr. Ross.
Summary judgment is proper because no reasonable jury could find Beasley breached any duty of
care it may have owed Mr. Ross. The undisputed facts demonstrate Beasley’s plumbers did not
know the insulation, fireproofing, and gasket materials they disturbed in Mr. Ross’s presence
contained asbestos. The undisputed facts further demonsirate plaintiffs de not posses and cannot
reasonably obtain evidence Beasley plumbers knew or should have known their work with
purportedly asbestos-containing materials created an unreasonable risk to Mr. Ross. Under these
circumstances, Beasley is entitled to summary judgment as a matter of law. Alternatively, the
Court should award Beasley summary adjudication on plaintiffs’ strict liability cause of action
because Beasley was not a manufacturer or seller of asbestos-containing products.

i. UNDISPUTED MATERIAL FACTS

A. THE PLEADINGS

Plaintiff Robert Ross was a career asbestos worker. Mr. Ross and his wife Jean Ross allege
numerous defendants are liable for Mr. Ross’s purportedly asbestos-related colon cancer. They
assert negligence, strict liability, premises owner/contractor liability, and loss of consortium causes
of action against Beasley. (UMF No. 1.)

B. Mr. Ross’s WorK FOR LOCAL 16 FROM 1959 THROUGH THE 1990s

Mr. Ross worked as an asbestos worker from 1959 through the 1990s. (UMF No. 2.)

Throughout his career, Mr. Ross was a member of Asbestos Workers Union Local 16. (OMF No.

1

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION28

BuTy  cuRLANOLLP

5550128)
Suite i280

GA 94607

‘si0.287 3000

3)
C. PLAINTIFFS’ EXPOSURE CLAIMS AGAENST BEASLEY
Plaintiffs contend Beasley employees exposed Mr. Ross to asbestos at three sites:
McKinleyville High School, St. Patrick High School, and Fairfield Hospital. (UMF No. 6.)
1. McKinleyville High School
Mr. Ross insulated pipes with asbestos products on a new construction project at
McKinleyville High School between 1961 and 1965 and worked in the presence of a Beasley
plumber he knew as “Brownie” for one day. (UMF No. 7.} Mr. Ross observed “Brownie” disturb
existing fireproofing while installing new plumbing lines. (UMF No. 8.) Mr. Ross wore a mask
when he observed “Brownie” disturb existing fireproofing at McKinleyville High School. (UMF
No. 9.)
2. St. Patrick High School
Mr. Ross insulated pipes with asbestos during a roughly one month new construction.
project at St. Patrick High School between 1967 and 1969. (UMF No. 10.) For “a short period of
time,” Mr. Ross observed Jim Beasley and a Beasley plumber he knew as “Browning” at St. Patrick
High School. (UMF Nos. 10 and 11.) During this job, “Browning” fabricated Garlock gaskets, but
Mr. Ross cannot estimate the amount of time he observed “Browning” performing this work.
(UMF No. 11.) Mr. Ross wore a mask throughout the new construction project at St. Patrick High
School. (See UMF No. 4.)
3. Fairfield Hospital
In 1979, Mr. Ross observed one or two Beasley plumbers remove existing insulation and
disturb existing fireproofing during a one to two week remodel project on the campus of Fairfield
Hospital. (UMF No. 12.) During this project, Mr. Ross worked around Beasley’s plumbers “about
half the time” and also disturbed fireproofing when he insulated pipes. (UMF No. 13.) As on the
other Beasley projects, Mr. Ross wore a mask throughout the remodel project at Fairfield Hospital.
(See UMF No. 4.)
iif
2
DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION28

BUTY a CURUANOLLP
865 12" STREET

D. Mr. Ross AND LOCAL 16 WERE SOPHISTICATED USERS OF ASBESTOS BY 1961

To avoid breathing asbestos, Mr. Ross “constantly wore a mask all through my career.”
(UMF No. 4.) In his response to standard interrogatories, Mr. Ross states he learned exposure to
asbestos was a potential health hazard in “approximately the 1960s.” (UMF No. 5.) By the time
Mr. Ross worked around Beasley’s plumbers at Fairfield Hospital, he “knew that the asbestos was
bad for you and it was killing people.” (UMF No. 14.) Arthur Klimack’s testimony confirms
Local 16 was a sophisticated user of asbestos when Mr. Ross joined the Asbestos Workers Union
in 1959. Mr. Klimack started working as an asbestos worker during the late 1940s, held various
leadership positions in Local 16 between the mid 1950s and early 1960s, and represented Local 16
at national and international conventions of the Asbestos Workers Union. Mr. Klimack’s
testimony establishes Local 16 was well aware of the risks associated with airborne asbestos by
1961 — the first year Mr. Ross could have worked around Beasley’s employees.

i. Mr. Klimack’s Involvement in Local 16

Mr. Klimack started working as an asbestos worker in 1948 and joined the Asbestos
Workers Union during the early 1950s. (UMF No. 15.) Between the early 1950s and 1962, Mr.
Klimack regularly attended Local 16’s monthly general membership meeting. (UMF No. 16.)
After Mr. Klimack joined Local 16, the Asbestos Workers Union consistently sent him its
publication The Asbestos Worker. (UMF No. 17.)

Between approximately 1954 and 1957, Mr. Klimack was a member of Local 16’s
Executive Board. (UMF No. 18.) Mr. Klimack attended Local 16’s monthly Executive Board
meeting approximately from 1954 through 1961. (UMF No. 19.) During the late 1950s, Mr.
Klimack served on Local 16’s Apprentice Committee, whose duties included apprentice training.
(UMF No. 20.) During 1960 and 1961, Mr. Klimack worked as a Business Agent for Local 16.
(UME No. 21.) Mr. Klimack also served as Local 16’s apprentice coordinator between 1972 and
1975. (UMF No. 22.)

Hl
itt

3

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION1 2. Local 16 Recognized Asbestos Was a Hazard by the Late 1950s
2 By late 1956, Local 16 was concerned the respiratory illnesses its members were
3 | developing, including lung cancer, were related to exposure to asbestos dust. (UMF No. 23.) Mr.
4 | Klimack represented Local 16 at the Asbestos Workers Union’s Western States Conference in
5 | Oakland on February 9, 1957. (UMF No. 24.) At the conference, Local 16 reported the unusually
6 | high number of member deaths during the previous year because it suspected deaths which had
7 | been attributed to lung cancer were caused by exposure to asbestos. (UMF No. 25.)
8 The April 1957 issue of The Asbestos Worker summarizes Local 16’s report to the Western
9 || States Conference and the International’s response:
0 The problems of Asbestosis and Silicosis were discussed at large [at
the regular annual meeting of the Western States Conference of
i February 9, 1957], stemming from the report of Local No. 16, in
which it was revealed that eleven members passed away last year. A
12 large number of the men had definite symptoms of the
aforementioned hazards of our trade. Most of the locals in
3 attendance spoke on this vital subject. President Sickles speaking
from and International point of view, said the International in
4 compiling facts and figures on this matter .. .
5 At this time a motion was made, seconded and passed that the
International continue to investigate the causes of Asbestosis and
6 allied lung ailments caused by fiberous materials, and to determine
what measures can be found to combat and prevent these diseases.
7
8 | (UME No, 26.)
9 Mr, Klimack represented Local 16 at the 19" General Convention of the International
20 | Association in New Orleans in September 1957. (UMF No, 27.) During the conference, Mr.
21 | Klimack concluded the representatives from Local 16 and the Western States Conference were
22 | more concerned about the hazards of asbestos than the representatives of the International. (UMF
23 | No. 28.) The October 1957 issue of The Asbestos Worker reports at the convention International
24 | President Sickles sought the authority to further study the hazards posed by asbestos (UMF No.
25 | 29.)
26 | ffi
a7 ffl
28 4
Pees (aeetneer DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
OngAND ER St007 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION28

euryacypiations
Boe GaSe

‘SUTE 1280
OAKLAND CA 94607
510.267 3000

3. Local 16 Sought to Prevent Asbestos Exposure and Screened for Asbestos
Diseases by the Late 1950s

By the late 1950s, Local 16 had implemented a screening program to identify respiratory
illnesses among its members. (UMF No. 30.) Local 16 modified its screening program afer Local
20 reported on its use of vital capacity tests and the results of those tests. Jd.) The April 1958
issue of The Asbestos Worker reports the “very startling” results of Local 20’s respiratory
monitoring program were discussed at the Western States Conference:

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. This ‘vital capacity tests’ was
introduced by Brother Ay of Local 20 two years ago at our

meeting in Seattle. The results are very startling and should be
the concern of each member of our trade.

(UME No. 31.)

Members of Local 16 discussed the health hazards associated with asbestos during the
monthly membership meeting with increased frequency between 1957 and 1960. (UMF No. 32.)
During a general membership meeting in the late 1950s, Dr. Irving Selikoff addressed the members
of Local 16, explained the hazard posed by asbestos, and discussed control of asbestos dust. (UMF
No. 33:)

Mr. Klimack attended Dr. Selikoff’s address and stated it provided “notice to me of the real
importance of the control of this particular fiber that he was talking about, which was asbestos
fiber.” (Deposition of Arthur R. Klimack (In Re: Complex Asbestos Litigation), 671:11-672:23
{Sullivan Declaration, Exhibit Q]; UMF No. 33.) Mr. Klimack also remarked Dr, Selikoff was
persuasive: “Dr. Selikoff was a very good speaker. He knew people very well. He was developed
politically and, therefore, he was able to sell his points, so that even the least educated, least
sophisticated individual could get the point of what he was getting to.” (/d.)

Similarly, during events held during late 1950s, members of the Asbestos Workers Union
discussed use of respirators to prevent exposure to asbestos. (UMF No. 34.) Mr. Klimack

represented Local 16 at the Asbestos Workers Union’s Western States Conference in Oakland on

5

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION1 | February 7, 1959. (UMF No. 35.) The May 1959 issue of The Asbestos Worker reports health
2 | hazards and use of respirators were discussed at the February 1959 Western States Conference.
3 | (UMF No. 36 [Health Hazards relating to our trade were discussed and various types of respirators
4 || were presented and the good points of each were brought out.”].)
° 4, Mr. Klimack Advised Insulation Contractors Asbestos Was Hazardous
6 During 1960 and 1961
7 By 1960, Local 16 was warning its business partners asbestos was hazardous. While he
g | served as a Business Agent for Local 16 in 1960 and 1961, Mr. Klimack advised insulation
9 | contractors asbestos was hazardous and urged them to provide dust masks to their employees and
10 | use dust containment devices. (UMF Nos. 37-39.) By that time, Mr. Klimack had decided to wear
11 | @mask when he was “aware of the fact that asbestos fiber was in some product whenever that
12 | product was present or working on that product, then it would be incumbent to wear a mask.”
13 | (UMF No. 40.)
14 Mr. Klimack represented Local 16 at the 20" General Convention of the Intemational
15 | Association in Atlantic City in September 1962. (UMF No. 41.) The February 1963 issue of The
16 | Asbestos Worker contains a three-page article entitled, “Progress Report on Health Hazards” which
17 | describes the efforts to survey of lung diseases among asbestos workers announced at the 20"
1g | General Convention of the International Association and states “EVERYONE has to be examined —
19 | 20 one can be left out.” (UMF No. 42.)
20 E. BrASLEY Dip Not KNow Nor SHOULD IT HAVE KNOWN ASBESTOS WAS
HAZARDOUS WHEN Its PLUMBERS WORKED AROUND MR. Ross BETWEEN 1961
21 AND 1979
2 Beasley was a small plumbing contractor which performed work in and around Napa and
23 | Solano Counties. (UMF No. 43.) Between 1961 and 1979, Beasley worked with and around
24 | asbestos-containing products in a manner consistent with the customary practices of plumbing
25 | contractors during that time period. (UMF No. 44.) Beasley did not employ medical personnel
26 | such as physicians or nurses or scientific personnel such as industrial hygienists, chemists, or
27 | material analysts. (UMF No. 45.) Beasley never received documents regarding tests or studies
28 6
“ass gestmeer DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
ongSaer toa MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION1 |) relating to asbestos exposure in the workplace or the impact of asbestos exposure on human health.
(UMF No. 47.) Consequently, Beasley was unaware of any dangers or health hazards associated
with asbestos during the period Mr. Ross alleges Beasley plumbers exposed him to asbestos.

(UME No. 46.)

which were later associated with handling gaskets and disturbing fireproofing. In 1973, the
International Agency for Research on Cancer found exposure to asbestos from gaskets presented an

inconceivably small risk. (UMF No. 48.) The first article addressing the release of asbestos from

2
3
4
5 Tellingly, between 1961 and 1979, the scientific community did not recognize the hazards
6
7
8
9

handling gaskets was not published in a peer-reviewed industrial hygiene journal until 1991. (UMF
10 | No. 49.) Because the scientific community did not perceive handling gaskets posed a potential

11 | hazard until 1991, plumbing contractors had no reason to believe gaskets could cause or contribute
12 | to an asbestos-related disease between 1961 and 1979. (UMF No. 50.)

13 The first article addressing the release of asbestos from the disturbance of fireproofing by

14 | trades such as plumbers was not published in a peer-reviewed industrial hygiene journal until 1983.
15 | (UME No. 51.) Because the scientific community did not perceive the disturbance of existing

16 || fireproofing by trades such as plumbers posed a potential health hazard until 1983, plumbing

17 | contractors had no reason to believe disturbing fireproofing could cause or contribute to an

18 | asbestos-related disease between 1961 and 1979. (UMF No. 52.)

19 Conversely, the historical literature pertaining to asbestos published between 1961 and 1979
20 | confirms members of Asbestos Workers Union had greater access to more information concerning
21 || the hazards associated with exposure to asbestos than any other trade. (UMF No. 53.) Therefore,
22 || between 1961 and 1979, asbestos workers knew or should have known more about the risks

23 || associated with asbestos than the plumbing trade. (/d.) Given the then existing state of the art,

24 | Beasley’s plumbers acted with reasonable prudence when they worked with purportedly asbestos-

25 | containing materials in Mr. Ross’s presence. (See UMF No. 54.)

26 | ffi

a7 | iti

28 7
“Soperer DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
On 207 9000 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION28

ouryscumuanour
tebe iS srReey

Sure 1220
\KLAND CA
‘0.267 9000

F. PLAINTIFFS’ DiscOVERY RESPONSES ESTABLISH THEY LACK NECESSARY
EVIDENCE

Mr. Ross has no personal knowledge Beasley knew in the 1960s exposure to asbestos was
potentially hazardous. (UMF No. 55.) More important, plaintiffs’ responses to written discovery
confirm they do not possess evidence Beasley knew or should have known its plumbers disturbed
asbestos in Mr. Ross’s presence or that their work created an unreasonable risk to an asbestos
worker wearing a protective mask.

Plaintiffs’ responses to Beasley’s special interrogatories and requests for production of
documents do not identify facts, witnesses, or documents specific to Beasley that support their
claim Beasley breached a duty of care it owed Mr. Ross. (UMF Nos. 56-58.) Similarly, plaintiffs’
responses to Beasley’s “state all facts” discovery do not identify facts, witnesses, or documents that
support plaintiffs’ strict liability cause of action. (UMF Nos. 59-61.) Instead, plaintiffs’ responses

to Beasley’s discovery restate the allegations in the complaint, set forth unsupported conclusions,

and generically list witnesses and documents without explaining how any supports plaintiffs’
negligence action against Beasley. Plaintiffs’ factually devoid responses to Beasley’s “state all
facts” discovery demonstrate they do not possess and cannot reasonably obtain competent evidence
the work performed by Beasley’s plumbers differed from what an ordinarily prudent person would
do in the same circumstances.
Til. LEGAL ANALYSIS
A. SUMMARY JUDGMENT Is MANDATED WHEN AN ACTION Is MERITLESS
Summary judgment is appropriate when an action has no merit. (Code Civ. Proc. §
437c(a).) A moving party is entitled to summary judgment “if all the moving papers submitted
show that there is no triable issue of material fact and that the moving party is entitled to judgment
as a matter of law.” (Code Civ. Proc. § 437c(c); see Chaknova y. Wilbur-Ellis Co. (1999) 69
Cal. App.4" 962, 974.) A defendant moving for summary judgment must show plaintiffs cannot
establish at least one element of a cause of action or show there is a complete defense to the cause
of action. (Code Civ. Proc. § 4370(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4" 826,

8

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATIONoD ND

20
21
22
23
24
25
26
27
28

BUTY 8 CYRUANOLLP,
‘565 ~ 12" STREET

‘suite s20
‘OAKLAND CA 98607
510.267 3000

849.) Once the defendant has met its burden, the burden shifts to plaintiffs to show a triable issue
of material facts exists as to the cause of action or defense. (/d.) If a party moving for summary
judgment would prevail at trial without submission of any issue of material fact to a trier of fact for
determination, then that party should prevail on summary judgment. (Aguilar at 850-851.)
B. BEASLEY WAS Not NEGLIGENT BECAUSE THERE IS NO EVIDENCE IT ACTED
UNREASONABLY OR WITHOUT DUE CARE.

The elements of a negligence cause of action are duty, breach of duty, proximate cause, and
damages. (Artiglio v. Corning Inc. (1998) 18 Cal.4" 604, 614.) A defendant breaches a duty of
care when its conduct falls below the standard of care established by the law for the protection of
others. (Bily v. Arthur Young & Co. (1992) 3 Cal.4" 370, 396-397.)

The appropriate standard of care is what a reasonably prudent person would do when placed
in the same circumstances as the defendant. (Tucker v. Lombardo (1956) 47 Cal.2d 459, 463-464.)
While the custom and practice in the relevant trade or community is not dispositive, the court
considers custom and practice in determining the proper standard of care. (Bullis v. Security
Pacific National Bank (1978) 21 Cal.3d 801, 809.)

Due care requires the “exercise [of] a degree of care commensurate with and in proportion
to the danger involved.” (Tucker, supra, at 464.) “Thus an actor’s duties vary according to
whether he faces a child or an adult, a blind man or one who can see, one who sleeps or one who is
awake. His duties also vary according to whether he may reasonably expect another to be aware of
danger or must know that another’s sense of security has been relaxed.” (Brandenburg v. Pacific
Gas and Electric Co. (1946) 28 Cal.2d 282, 285.)

A court may determine a defendant did not breach a duty of care it owed a plaintiff'as a
matter of law. In Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4" 764, the California Supreme

Court observed:

On the facts of a particular case, a trial or appellate court may hold no
reasonable jury could find the defendant failed to act with reasonable
prudence under the circumstances. Such a holding is simply to say
that as a matter of law the defendant did not breach his or her duty of
care, i.e., was not negligent toward the plaintiff under the
circumstances shown by the evidence.

9
DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION28

BUTY &CURLANOLLP
856= 12" STREET
‘SUITE 1280
OAKLAND Ga 24607
‘510.267 3000

(Cabral at 773 (italics in original text).)

The undisputed facts demonstrate Beasley’s plumbers acted with reasonable prudence.
Because the asbestos hazards asserted by plaintiffs were known to insulators but not reasonably
foreseeable to plumbers when Beasley worked around Mr. Ross, Beasley did not breach any duty of
care it owed Mr. Ross as a matter of law.

The undisputed facts establish Mr. Ross and the Asbestos Workers Union were aware of
hazards associated with exposure to asbestos before Mr. Ross first encountered a Beasley plumber
at McKinleyville High School. Because Beasley did not learn of such hazards until long after Mr.
Ross last encountered Beasley at Fairfield Hospital in 1979, the undisputed facts further establish
Beasley’s actions complied with the custom and practice of the plumbing trade between 1961 and
1979 and reflected the existing state of the art in that trade. Finally, plaintiffs’ factually devoid
discovery responses demonstrate they do not possess evidence Beasley knew or reasonably should
have known the purportedly asbestos-containing materials its plumbers handled in Mr. Ross’s
presence while he wore a mask created an unreasonable risk to Mr. Ross.

Beasley has shifted to burden of production to plaintiffs, who are now obligated to produce
evidence that supports their claim Beasley is liable for Mr. Ross’s exposure to asbestos.
(Chaknova, supra, 69 Cal.App.4" at 976.) Absent such a showing, the Court may presume
plaintiffs’ claims against Beasley are not supported by evidence (Union Bank v. Superior Court
(1995) 31 Cal.App.4"" 573, 593) and should grant Beasley’s motion for summary judgment to avoid
a trial rendered useless by a directed verdict (Aguilar, supra, 25 Cal.4" at 855).

1. Mr. Ross Was a Sophisticated User of Asbestos

Mr. Ross’s testimony and actions, Arthur Klimack’s testimony, and the excerpts from The
Asbestos Worker cited by Beasley demonstrate Mr. Ross and his fellow asbestos workers were
sophisticated users of asbestos who understood the hazards posed by asbestos dust before Mr. Ross
is alleged to have worked at the same location as Beasley’s plumbers. Unlike members of the
general public, including plumbers, union asbestos workers possessed the skill, experience, and
training to recognize the presence of an asbestos hazard and take appropriate precautions like

10

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.'S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION28

Burra cypuanioue
Bee iisheer

‘SUrTe 1280
‘OAKLAND CA 94607
510.267.3000,

wearing a protective mask.

In Johnson v. American Standard, Inc, (2008) 43 Cal.4" 56, the California Supreme Court
explained the sophisticated user defense evolved from the obvious danger rule, which provides
“there is no need to warn of known risks under either a negligence or strict liability theory.”
VJohnson at 67.) The Court observed:

[T]he sophisticated user defense simply recognizes the exception to
the principle that consumers generally lack knowledge about certain
products, for example, heavy industrial equipment, and hence the
dangers associated with them are not obvious. For those individuals
or members of professions who do know or should know about the
product’s potential dangers, that is, sophisticated users, the dangers
should be obvious and the defense should apply. Just as a
manufacturer need not warn ordinary customers about generally
known dangers, a manufacturer need not warn members of a trade or

profession (sophisticated users) about dangers generally known to
that trade or profession.

Ua.)

The undisputed material facts confirm the hazards posed by asbestos dust were widely
known among the members of Local 16 including Mr. Ross. Mr. Ross began wearing a mask to
avoid respirable asbestos dust in 1959 and acknowledges he learned of the hazards associated with
asbestos during the 1960s. (UMF Nos. 4 and 5.) By the time Mr. Ross observed Beasley disturb
existing insulation and fireproofing at Fairfield Hospital in 1979, he had concluded asbestos
exposure was potentially deadly. Statements in The Asbestos Worker (see UMF Nos. 17, 26, 29,
31, 36, and 42) and Mr. Klimack’s testimony (UMF Nos. 15-25, 27-28, 30, 32-35, and 37-41)
demonstrate Local 16 knew asbestos was potentially deadly at least four years before Mr. Ross first
encountered Beasley’s plumbers McKinleyville High School sometime between 1961 and 1965.

By 1957, Local 16 recognized all products which contained asbestos posed a hazard, not
simply insulation products. Mr. Klimack testified: “And perhaps if I could add further that we
were becoming more aware also of the fact that the fiber of the asbestos was quite dangerous
whether it was in airborne dust form or not.” (Deposition of Arthur R. Klimack (In Re: Complex
Asbestos Litigation), 722:13-17, 723:21-24 [Sullivan Declaration, Exhibit Q]; UMF No. 28.)
iti

ui

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATIONThe undisputed facts show Local 16, and therefore Mr. Ross, recognized asbestos was a
hazard before 1961. The undisputed facts further demonstrate the purportedly dangerous

conditions created by Beasley’s plumbers at McKinleyville High School, St. Patrick High School,
and Fairfield Hospital were objectively obvious to asbestos workers like Mr. Ross. The Johnson
court observed sophisticated users represent “to the world that they possess the level of knowledge
and skill associated with that class.” (Johnson, supra, 43 Cal.4" at 72.) When coupled with
evidence Beasley and the plumbing trade lacked knowledge concerning the hazards of asbestos
between 1961 and 1979, the evidence Mr. Ross was a sophisticated user of asbestos by 1961

establishes Beasley did not breach its duty of care to Mr. Ross as a matter of law.

CoC OO RD WH FF WN

2. Beasley Acted Reasonably and with Due Care

1 Compared to asbestos workers, who knew asbestos was hazardous during the 1950s,

2 | Beasley and other members of the public were blind or not yet awake to the hazards posed by

3 | bystander exposure to asbestos during the period Mr. Ross shared worksites with Beasley’s
plumbers. (See Brandenburg, supra, 28 Cal.2d at 285.) The undisputed facts demonstrate Beasley
did not know of the hazards associated with asbestos between 1961 and 1979 and there is no reason

Beasley should have known handling asbestos materials in the presence of a masked asbestos

Beasley was unaware of any danger or health hazard associated with asbestos during the

4
5
6
7 | worker was potentially injurious to the asbestos worker.
8
9

period Mr. Ross alleges Beasley plumbers exposed him to asbestos. (UMF No. 46.) Beasley was a
20 | small plumbing contractor which did not employ medical or scientific personnel or receive

21 | documents which indicated asbestos was a potentially hazardous material. (UMF Nos. 43, 45, and
22 | 47.)

3 Between 1961 and 1979, Beasley worked with and around asbestos-containing products in a
24 | manner consistent with the customary practices of plumbing contractors during that time period.

25 | (UME No. 44.) Because Harold Beasley and his son James Beasley worked in the field during this
26 || period, they and their employees were exposed to asbestos primarily through work performed by

27 | asbestos workers like Mr. Ross. (Declaration of James Beasley in Support of Defendant Harold

28
12
Saat ermeer DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
OMA of 4807 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATIONoO me ID

Beasley Plumbing & Heating, Inc.’s Motion for Summary Judgment or, Alternatively Summary
Adjudication, 2:14-17, 3:2-4 [Sullivan Declaration, Exhibit O].

In addition, Beasley has provided affirmative evidence the scientific community did not
recognize the hazards later associated with handling gaskets and disturbing fireproofing between
1961 and 1979. The historical scientific literature pertaining to asbestos demonstrates Beasley
could not be reasonably expected to know of the dangers of asbestos during this time period.
(UMF Nos. 48-52.) It also demonstrates asbestos workers like Mr. Ross knew or should have
known more about the risks associated with asbestos than plumbing contractors like Beasley.
(UMF No. 53.) These undisputed facts support the conclusion Beasley’s plumbers acted with
reasonable prudence when they worked with purportedly asbestos-containing materials in Mr.
Ross’s presence. (UMF No. 48-54.)

3. Plaintiffs Do Not Possess Evidence Beasley Acted Unreasonably

Beasley served detailed discovery on plaintiffs requesting the facts, witnesses, and
documents which support plaintiffs’ claim Beasley breached any duty of care it owed Mr. Ross.
(UMF No. 58.) Plaintiffs’ responses to Beasley’s discovery do not identify any fact, witness, or
document specific to Beasley which supports their claim Beasley breached a duty of care to Mr.
Ross. (UMF Nos. 26, 29-30.) Plaintiffs’ “laundry list” responses to Beasley’s special
interrogatories and requests for production of documents confirm plaintiffs do not possess and
cannot reasonably obtain necessary evidence to support their negligence action against Beasley.
(See Andrews y. Foster Wheeler LLC (2006) 138 Cal. App.4" 96, 106-107.)

C. PLAINTIFFS’ STRICT LIABILITY CAUSE OF ACTION Is UNSUPPORTED

Beasley cannot be liable to plaintiffs for strict liability. Beasley was a plumbing contractor.
(UMF Nos. 43 and 63.) Beasley did not manufacture, sell, or distribute and asbestos-containing
products or materials. (UMF No. 64.) Therefore, pursuant to Monte Vista Development Corp. v.
Superior Court (1991) 226 Cal.App.3d 1681, Beasley is not subject to strict liability, even if its
plumbers installed a defective product which injured Mr. Ross.
itt

13

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATIONCO MW DR HW BR YW NY

2

BUTY 8 CYRLIANOLLP.
'865— 12" STREET

‘Suite 1280
‘OAKLAND CA 94607
510.267.3000

In Monte Vista Development Corp., plaintiff was severely cut while cleaning a bathroom
when a soap dish she was using for support broke. (Monte Vista Development Corp., supra, at
1683-1684.) She sued the plumbing contractor which had installed the soap dish, alleging it was
strictly liable because it had purchased the soap dish. (/d.) The Fifth District addressed the issue
by turning to Second Restatement of Torts and determining the plumbing contractor could not be
strictly liable for the plaintiffs’ injuries because it was not a “seller” of the soap dish.!

The court observed the plumbing contractor “was not in the business of selling soap
dishes,” but it had instead purchased the soap dish at issue to complete its contract with the general
contractor. (Monte Vista Development Corp. at 1687.) Like the defendant in Monte Vista
Development Corp., Beasley was a plumbing contractor that was not in the business of selling
asbestos-containing construction products. (UMF Nos. 43 and 63-64.) Because there is no
evidence Beasley was engaged in the business of selling asbestos-containing construction products,
plaintiffs’ strict liability cause of action fails as a matter of law.

D. JEAN Ross’s Loss OF CONSORTIUM CLAIM Is NOT ACTIONABLE.

Mrs. Ross’s loss of consortium cause of action stands or falls with plaintiffs’ claims Beasley
is liable for Mr. Ross’s claimed exposure to asbestos. (Jablonski v. Royal Globe Ins. Co. (1988)
204 Cal.App.3d 379, 388.) Because each of plaintiffs’ other causes of action is without merit, Mrs.
Ross’s loss of consortium cause of action is also meritless.
iif
“if
Hf

Section 402a of the Second Restatement of Torts states in pertinent part:

(1) One who sells any product in a defective condition unreasonably 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.
14
DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
MEMORANDUM OF POINTS AND AUTHORITIES EN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION1 IV. CONCLUSION
2 The undisputed facts establish no reasonable jury could find Beasley failed to act with
3] reasonable prudence when its plumbers worked around Mr. Ross at McKinleyville High School, St.
4 | Patrick High School, or Fairfield Hospital. Beasley has provided affirmative evidence its plumbers
5 | acted reasonably and with due care at these sites, and plaintiffs have provided no evidence which
6 | shows Beasley knew or should have known handling allegedly asbestos materials in the presence of
7 | amasked asbestos worker created a reasonably foreseeable danger. Beasley did not breach a duty
8 | ofcare to Mr. Ross as a matter of law and is entitled to summary judgment. Alternatively, Beasley
9 | is entitled to summary adjudication of plaintiffs’ strict liability cause of action.
10 | DATED: February 20, 2013 BUTY & CURLIANO LLP
Il
2 By: Ss LK
GE ES. SULLIVAN
13 Ajftotneys for Defendant:
OLD BEASLEY PLUMBING & HEATING,
14 INC.
15
16
17
18
19
20
21
22
23
24
25
26
27
28 15
oe DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S
OnKERND hota ss MEMORANDUM .OF POINTS AND-AUTHORITIES IN.SUPPORT.OF.
MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION