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

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Howard P. Skebe, Esq. (State Bar No. 191407)
hskebe@cmjlaw.com

Lindsay Weiss, Esq. (State Bar No. 268076)
lweiss@cmjlaw.com

COOLEY MANION JONES LLP

201 Spear Street, 18th Floor

San Francisco, CA 94105

Tel: (415) 512-4381

Fax: (415) 512-6791

Attorneys for Defendant
TEMPORARY PLANT CLEANERS, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

FEB 21 2013

Clerk of the Court
BY: WESLEY G. RAMIREZ
Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS,
Plaintiffs,
ve
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 TEMPORARY PLANT
CLEANERS, INC.’"S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION FOR SUMMARY
JUDGMENT

[Filed Concurrently with Notice of Motion,
Separate Statement, Declaration of Lindsay
Weiss, Proposed Order]

Date: May 9, 2013

Time: 9:30 am.

Dept.: 503

Judge: Hon. Teri L. Jackson
Case Filed: | December 17, 2010
Trial Date: = June 10, 2013

DEFENDANT TEMPORARY PLANT CLEANERS, [NC.’°S MEMORANDUM OF POINTS AND
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Table of Contents

1. INTRODUCTION
Th STATEMENT OF FACTS.

A. Plaintiffs’ Allegations Against TPC

il. LEGAL ARGUMENT.

A. Standard Of REVIW oc cccscsesseeeeeerestesteeresteseessees

B. Plaintiffs’ Claims for Negligence and Contractor Liability Fail Because TPC
Owed Plaintiff No Legal Duty of Care

1. TPC Has Shifted the Burden of Proof on the Issue of Whether TPC Owed

Plaintiff a Duty. 4
2. TPC Owed No Legal Duty to Plaintiff for any Claimed Asbestos Exposure
Because Plaintiff's Injury was not Foreseeable «1.0.0... .... cee eee ee eeee eee 5
3. Imposing a Duty on TPC Would Saddle Contractors with a Burden of an
Uncertain, but Potentially Very Large, Scope..............ceceeeeeeeeeeeeeeeees 7
c. Plaintiff Has no Evidence Indicating that he was Actually Exposed to Asbestos as
a Result of any TPC Activity ....0000..00. occ ccc cece eee cence cece eeee tee eeeeeteeeeeeees 8

1. Plaintiff's Deposition Testimony and Plaintiff's Written Discovery Responses
are Insufficient to Sustain any Cause of Action against TPC as they Fail to
Demonstrate Exposure to an Asbestos Containing Product by Admissible
EVIdeN CO... eee eee etree eter e eee se arte dese et te ee 9

TV. CONCLUSION... eee ecce ec cee ce neeeeeeee ce neeeeereeseneasenesesenensanersasecensaeaneetesenstenseteceeseeae 12

DEFENDANT TEMPORARY PLANT CLEANERS, INC.°S MEMORANDUM OF POINTS AND
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TABLE OF AUTHORITIES

Cases Page(s)
SUPREME COURT OF CALIFORNIA

Aguilar v. Atlantic Richfield Co.
25 Cal.4 826 (2001) caeccessssssessssssssseesessessseseensusnssssseessnuansseesesiusnsssssetstinuansseeseien 3,4,9

Andrews v. Foster Wheeler LLC
138 Cal App.4” (2006)....cccccscsscsssssssscsssssssseensessusseassssssassssesscessusstettenttuesueneaseesse 8,9, 12

Ann M. v. Pacific Plaza
6 Cal.4th 666 (1993)... cece eee cee ee recesses ene seeeeeseeeeseeereeaeseneneeweceeeees 3

Campbell v, Ford Motor Company
(2012) 141 Cal.Rptr.3d 390...

Davis v. Foster Wheeler
205 Cal App.4th (2012)..ccccccccccecceseccessesevscesessescesssevsscestecssesteseesrstessneess 14,7

Dumin v. Qwens-Corning Fiberglas Corp.
28 Cal. App.Ath 650 (1994). .ccccccsssssssssesscssessesseseesevsessessessssvessessessessessessensessiesessesesseea 9,10

Hunter v. Pacific Mechanical Corp.
37 Cal. Appt 1282 (1995) scccccsccsccsscscesscsssessessssssssvesvessessessesseusessvecviestessessesvensessessessessensee 9

Ishmael v. Millington
241 Cal. App.2d 520 (1966)... 0c cee eee eee ented erence ed ee ee beeen ee eee ee 3

Ladd v. County of San Mateo
(1996) 12 Cal.4th 913 eee creer iene seer ered e ede ee deere 3

Lineaweaver v. Plant Insulation Co.
31 Cal. App.4th 1409 (1995). eee enacts ssessseeicssscssneuteasscsreneaneeseeereneeees 9

Martinez v. Bank of America
82 Cal.App.4th 883 (2000)...0.. ccc eee cece cece eet ee tea bed ee tender ee ee eae etee 5

McGonnell v. Kaiser Gypsum Co., Inc.
98 Cal App.4'” 1098 (2002) occecssssssssescsssssssseesssssssesuensicsossesesssssassetuunsecesretetnesesece 7,8,

Nymark v. Heart Fed. Savings & Loan Association
231 Cal.App.3d 1089 (L99D). cee eee eee bee ete reseceseeeusaeusaeeeneeeeeeess 3

Oddone v. Superior Court
(2009) 179 Cal. App.4th 813.00... eee e rine eeee eres sseennnmniienenee ieee 5

Rowland v. Christian
69 Cal.2d 108 (1968)... 00. ce cece cece ccc eee ttreettentee cesses eeeeeeeeeeeeeanees 1,4,5,7

Rutherford v. Owens-Illinois, Ine.
16 Cal.4th 953 (1997) .

ii

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Saelzer v. Advanced Group 400
25 Cal. Ath 763 (2001)... 0000. ce cece cee cee cee cece eee eee nner eee e tere teen eeeeeeeeeennee 3

Sangster v. Paetkau
68 Cal App.4th 151(1998) cece cece eee eenn ten eeeeennesnesenseseeressiseieeeneerneeieesneeeneeeneeneese 10

Sharon P. y. Arman, Ltd.
(1999) 21 Cal 4th D181. cece eee eee e tree sean reer eee eeee een eeeeneeneeeee 3

Smith v. ACaadsS, Inc.
31 Cal. App.4th 77 (1994

Union Bank v. Superior Court
B31 Cal App.Ath 573 (1995)..ccccccccccscsccessssssssmensesssesssnnsesestestnentsessetetnnensestetineneeeseseee 12

Whitmire v. Ingersoll-Rand Co.
184 Cal. App.4 1078 (2010) ooccccccecscsseccsssssssseenssssssestesennsesestitsensnstesentesesssetettesenseseses 9

CALIFORNIA STATUES
Code of Civil Procedure

iti

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I. INTRODUCTION

Plaintiffs Robert Ross and Jean Ross (“Plaintiffs”) bring this personal injury and loss of
consortium action alleging that Plaintiff Robert Ross was exposed to asbestos through his work as
an insulator at various locations between 1956 and 1993. As to Temporary Plant Cleaners, Inc.
(“TPC”) (named in Plaintiff's Amended Complaint as the alternate entity to Plant Maintenance,
Inc. of California (“Plant Maintenance”)), Plaintiffs allege causes of action for negligence and
premises owner/contractor liability based upon Robert Ross’ alleged work around TPC
employees at the Tidewater Oil Refinery and Phillips Petroleum Refinery in Avon, CA, TPC
moves, pursuant to California Code of Civil Procedure (“CCP”) § 437c for summary judgment in
this action.

Plaintiffs’ claims for negligence and premises owner/contractor liability are barred under
Rowland v. Christian, (1968) 69 Cal.2d 108, and its progeny Campbell, (2012) 206 Cal.App.4"
15, and Davis, (2012) 205 Cal.App.4" 731. Plaintiff's alleged injuries were not foreseeable to
TPC, a general maintenance contractor who did not employ or contract with the Plaintiff.
imposing such a duty would violate public policy and create an extensive burden on contractor
defendants.

Notwithstanding the lack of foreseeability, summary judgment is also appropriate as
Plaintiffs’ allegations against TPC fail on the element of causation. Specifically, the evidence
supporting Plaintiffs’ claim that TPC employees exposed Plaintiff to asbestos is nothing more
than rank speculation, unsupported by any foundation or other admissible evidence. Specifically,
Plaintiffs offer no evidence in this matter that anything TPC allegedly swept or worked with in
Plaintiffs presence was asbestos-containing. At his deposition, Plaintiff did not know the brand

name or manufacturer of the insulation TPC allegedly worked with at either the Tidewater Oil

Refinery or the Phillips Petroleum Refinery. Similarly, Plaintiffs’ responses to TPC’s written
discovery provide no evidence whatsoever that anything at Tidewater Oil or Phillips Petroleum,
which TPC allegedly worked with, was asbestos-containing. In sum, Plaintiffs did not provide
sufficient information, either at deposition or in responses to written discovery, supporting their

claim that the work TPC employees performed in. Plaintiff's presence would have exposed him to

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asbestos.
I. STATEMENT OF FACTS

Plaintiffs filed the instant matter on December 17, 2010, against a host of defendants,
alleging that Plaintiff was diagnosed with colon cancer allegedly attributable to asbestos exposure
through his work at various job sites between 1956 and 1993. (SUMF, No. 1)! As against TPC,
Plaintiffs initially alleged causes of action for negligence, strict liability, and premises
owner/contractor liability, however, Plaintiffs subsequently dismissed the strict liability cause of
action as to TPC, (SUMF, No. 3). Accordingly, the only remaining causes of action against TPC
are both predicated upon a negligence theory. (SUMF, No. 4). Plaintiffs do not allege that TPC
manufactured, supplied or distributed products. (SUMF, No. 5). Plaintiffs do not seek punitive
damages against TPC, (SUMF, No. 6),

A, Plaintiffs’ Allegations Against TPC

Plaintiffs allege that Robert Ross worked in the presence of TPC employees at the
Tidewater Oil Refinery in Avon, CA for approximately one month between 1961 and 1962, and
at the Phillips Petroleum Refinery in Avon, CA for approximately one month in the 1970s.
(SUMF, No. 7). At his deposition, Plaintiff identified TPC employees as general maintenance
contractors who performed maintenance and clean-up work. (SUMF, No. 8). In their responses
to TPC’s special interrogatories, Plaintiffs allege that TPC performed clean-up work and
disturbed insulation at both the Tidewater Oil and Phillips Petroleum refineries. (SUMF, No. 9).
In support of these claims, Plaintiffs identify a litany of non-specific documents, none of which
bear any relation to Plaintiff, the above jobsites, or, most importantly, TPC’s work at these sites.
(SUMF, No. 10). The only witness identified as a person with knowledge as to Plaintiff's work
around TPC is the Plaintiff himself. (SUMF, No. 11).
ILL. LEGAL ARGUMENT

A. Standard of Review

Any party may move for summary judgment in any action or proceeding if it is contended

' Plaintiffs initially alleged liability for Plaintif’s alleged asbestosis diagnosis, however, this claim was subsequently
dismissed by Plaintiffs on November 1, 2611 based upon TPC’s pending motion to dismiss as in violation of the
single action rule. (SUMF, No, 2). 2

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that the action has no merit or that there is no defense to the action or proceeding. CCP § 437c(a).
Summary judgment shall be granted if all the papers submitted show that there is no triable issue
of material fact, and the moving party is entitled to judgment as a matter of law. (CCP § 437c(c);
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4" 826, 850.) For purposes of summary judgment,

CCP § 437c provides the following:

A defendant...has met his or her burden of showing that a cause of action has no

merit if that party has shown that ene or more elements of the cause of

action...cannot be established...Once that defendant...has met that 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 or defense thereto. The plaintiff...map not

rely upon the mere allegations or denials...but instead, shall set forth the specific

Jacts showing that a triable issue of material fact exists...(emphasis added),

A defendant moving for summary judgment need not conclusively negate an element of
the plaintiff's cause of action. Aguilar, supra, 25 Cal.4th at 853. All that the defendant need do is
show that at least one element of the cause of action cannot be established by the Plaintiff. /d. at
853. “The defendant has shown that the 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.” /d. at 854. “The motion shall be supported by affidavits, declarations, admissions,
answers to interrogatories, depositions, and matters of which judicial notice shall or may be

taken.” CCP § 437c(b).

B. Plaintiffs’ Claims for Negligence and Contractor Liability Fail Because TPC
Owed Plaintiff No Legal Duty of Care

To sustain a negligence claim in California, a critical element is the existence of a legal
duty, which was then breached and proximately caused damages. See Saelzler v. Advanced
Group 400, (2001) 25 Cal.4th 763, 772; Ann M. v. Pacific Plaza (1993) 6 Cal.4th 666, 673; Ladd
v. County of San Mateo (1996) 12 Cal.4th 913, 917. Whether a duty exists is a question of law
decided by the court. See Nyvmark v. Heart Fed. Savings & Loan Association (1991) 231
Cal.App.3d 1089, 1095; Ishmael v. Millington (1966) 241 Cal.App.2d 520, 525; Sharon P. vy.
Arman, Ltd. (1999) 21 Cal.4th 1181, 1188.

To prove negligence and premises owner/contractor liability causes of action against TPC,
Plaintiffs must first show that TPC owed Plaintiff Robert Ross a duty of care. Saelzler, supra, 25
Cal.4th at 772; Ann M., supra, 6 Cal.4th at 673. Here, Plaintiffs can make no such showing

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because Plaintiff's alleged injuries were not foreseeable to TPC, a general maintenance
contractor, who did not employ or contract with the Plaintiff himself. Additionally, imposing a
duty on TPC would create an undue burden and saddle contractor defendants with a limitless
level of liability. Rowland v. Christian (1968) 69 Cal.2d 108; Campbell v. Ford Motor (2012) 206
Cal.App.4" 15, 33. Plaintiffs cannot show that TPC owed Plaintiff Robert Ross a duty, because as
shown in the Davis case, supra, the mere fact of working with or around an asbestos-containing
product in another’s presence does not by itself give rise to liability for exposure to that product.

See Davis v. Foster Wheeler (2012) 205 Cal App.4th 731.

1. TPC Has Shifted the Burden of Proof on the Issue of Whether TPC Owed Plaintiffia
Duty

.. [T]he party moving for summary judgment bears an initial burden of production to
make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries
his burden of production, he causes a shift, and the opposing party is then subjected to a burden of
production of his own to make a prima facie showing of the existence of a triable issue of
material fact.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.

TPC propounded special interrogatories and requests for production of documents
specifically seeking information regarding Plaintiffs’ allegation that TPC owed Plaintiff a duty.
(SUMF, No. 12). In response to TPC’s discovery, Plaintiffs provided boilerplate responses which
merely resuscitated the general allegations made against TPC. (SUMF, No. 13). For example, in
response to TPC’s interrogatories asking for all facts supporting Plaintiffs’ contention that TPC
had responsibility over Plaintiff’s safety at each refinery, Plaintiffs merely stated that Plaintiff
“worked in close proximity to trades employed by TPC who handled and disturbed asbestos-
containing products.” (SUMF, No. 14). Plaintiffs’ responses then reference documents regarding
asbestos and insulation, which have no bearing to the interrogatories whatsoever. (SUMF, No.
15). Nowhere in Plaintiffs’ responses is there any reference to whether TPC had responsibility
over Plaintiff's safety at either refinery. (SUMF, No. 16). As for the interrogatories requesting
all facts supporting Plaintiffs’ contention that TPC owed Plaintiff a duty, Plaintiffs provide the

identical response as above, all of which lacked any reference as to how or why TPC owed

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Plaintiff a duty. (SUMF, No. 17).”

TPC has shifted its burden on the issue of whether TPC owed Plaintiff a duty of care.
Plaintiffs have no evidence in this case that TPC had responsibility over Plaintiffs safety at cither
refinery, or that TPC owed Plaintiff a duty at all. Accordingly, and for the reasons set forth

below, TPC’s motion for summary judgment should be granted.

2. TPC Owed No Legal Duty to Plaintiff for Any Claimed Asbestos Exposure Because
Plaintiff's Injury was not Foreseeable

imposing a duty upon TPC in this matter requires a balancing of the Rowland factors: (1)
‘oreseeability of the harm to the Plaintiff; (2) the degree of certainty that the Plaintiff suffered
injury; (3) the closeness of the connection between the defendant’s conduct and the injury
suffered; (4) the moral blame attached to the defendant’s conduct; (5) the policy of preventing
future harm: (6) the extent of the burden to the defendant and consequences to the community of
imposing a duty to exercise care with resulting liability for breach; and (7) the availability, cost,

and prevalence of insurance for the risk involved. Rowland v. Christian (1968) 69 Cal.2d 108,

18-19. While foreseeability is not the only factor which balances in favor of TPC, it is
ispositive in. and of itself, i.e. if the harm is not foreseeable, no duty can be imposed. Oddone v.
Superior Court (2009) 179 Cal.App.4th 813.

California recognizes foreseeability as a necessary factor in determining whether a

lefendant owes a duty of care. Oddone y. Superior Court (2009) 179 Cal App.4th 813.
Specifically, this Court must determine whether the category of conduct at issue is sufficiently
likely to result in the kind of harm experienced, such that liability may be imposed on the
negligent party. Martinez v. Bank of America (2000) 82 Cal.App.4" 883. What “sufficiently
likely” means is “likely enough in the setting of modern life that a reasonably thoughtful person

would take account of it in guiding practical conduct.” Jd. California’s foreseeability standard

> -PPC’s Special Interrogatory stated as follows: “Please state all facts supporting YOUR contention that between the years 1961
and 1962, TPC owed YOU a “duty” as alleged in YOUR COMPLAINT.” TPC asked an additional Interrogatory pertaining to the
1970s, Plaintifis responded to each Interrogatory as follows: “., . Robert Ross was exposed to asbestos by working in close
proximity to trades employed by [TPC] that were handling and disturbing asbestos-containing products.” Plaintiffs then list
factual allegations about Plaintiffs inhalation of dust and allegations as to what TPC did at the premises. Plaintiffs reference
documents regarding asbestos and insulation, and copy the table with Plaintiff's employer, location of job site, job title, exposure
dates, and co-workers. (SUMF, No. 18).

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does not require a defendant to have been all-knowing — yet, that is precisely the duty that
Plaintiff would have the Court impose on TPC in this matter.

Further, where courts have found a “duty to warn”, the plaintiff is still required to show
that the defendant unreasonably failed to warn of a particular risk that was known or should have
been reasonably known by the party. Plaintiffs generalize TPC as a maintenance contractor, who
typically did clean-up and other maintenance tasks. (SUMF, Nos. 5, 7-25). It would be
unreasonable to impose a duty upon TPC in this case, as it is in no way foreseeable that TPC
knew the content of the miscellaneous and ever-changing debris they cleaned, let alone, knew that
their actions could cause harm to another worker doing different work on site. Moreover, this
was dust and debris created and deposited by skilled tradesman, not TPC, who was doing general
maintenance and clean-up work, cleaning up after the skilled tradespersons who themselves gave
no indication that the debris they deposited was hazardous. (SUMF, Nos. 7-25). By way of
analogy, this is no different than a scientist in his laboratory strewing toxic substances about
without safety precaution or concern and then expecting the janitor, who had been standing by
witnessing the display, to be able to identify the various materials, toxic or otherwise, as well as
the manner in which each needed to be cleaned and disposed of such that no harm would be
visited upon the bystander scientist however imperceptible or latent.

Plaintiffs provide no evidence, despite TPC’s discovery which request all information,

documents and witnesses with knowledge of TPC’s liability to Plaintiffs that TPC knew the

content of the products they allegedly worked with in Plaintiff’s presence (SUMF, Nos, 7,9-11,
25). Plaintiffs deposition testimony and discovery responses fail to demonstrate this critical
element of the claim. (SUMF, Nos. 7-25). Plaintiffs do not allege that TPC supplied, distributed
or manufactured any asbestos-containing products. (SUMF, No, 5). Thus, Plaintiffs’ entire theory
of liability against TPC in this matter relies upon the notion that TPC, a contractor who was hired
to perform mere clean-up and maintenance work on the premises, knew that anything they may
have worked with was harmful. Plaintiffs do not produce any evidence supporting this. (SUMF
Nos. 7-25). Accordingly, there is no conceivable evidence to suggest that TPC knew or should

have known of a risk of harm to Plaintiff; thus, no duty can, or should, be imposed on TPC.

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3. Imposing a Duty on TPC Would Saddle Contractors With a Burden of an Uncertain.
but Potentially Very Large, Scope

In analyzing whether to impose a duty, California courts not only look at foreseeability,
but also at the burden to the defendant of imposing such liability. Rowland v. Christian (1968) 69
Cal.2d 108; Davis v. Foster Wheeler (2012) 205 Cal.App.4" 731; Campbell v. Ford Motor (2012)
206 Cal.App.4" 15, 33. Here, Plaintiff is attempting to impose a duty by asserting that a general
maintenance contractor who was hired to perform maintenance and clean-up work should have
taken measures to protect Plaintiff. Despite the fact that there is no evidence in this case that TPC
maintained or had any control over the workplace and thus, could have taken any precautions,
imposing a duty on a contractor who is essentially a co-worker or, in this instance as described by
Plaintiff, something akin to a janitor to the Plaintiff, would saddle TPC, or any other contractor
similarly situated, with liability which could be boundless. In essence, Plaintiffs have failed to
produce any evidence showing that TPC owed a duty in this case, or that TPC had any
responsibility for Plaintiff's safety at either refinery. (SUMF Nos. 7-25).

California courts have held that imposing such an attenuated duty on defendants such as
contractors would create a burden of a very large scope. Campbell v. Ford Motor (2012) 206
Cal.App.4" 15, 33. While Campbell's fact pattern has some distinguishing features to the case at
hand, the Court’s holding is applicable. California courts have expressed concern over imposing a
duty on non-employee defendants, or contractors, who did not manufacture or supply any
asbestos-containing products. Davis v. Foster Wheeler (2012) 205 Cal. App.4™ 731. In Davis, the
Court reasoned that a contractor who neither manufacturers nor supplies an asbestos-containing
product cannot be held legally liable for injuries caused by exposure to that product, absent a
threshold showing that the contractor was responsible for work-place safety conditions at the
location where the asbestos products were used. fd. at 736.

Ultimately, imposing a duty on TPC, a contractor, in a case where there is no evidence
that it knew the content or composition of what it allegedly cleaned or that it had any
responsibility or control over Plaintiffs safety at the subject refineries would saddle contractor
defendants with limitless liability. “Foresecability and extent of burden to the defendant .. .

have evolved to become primary factors” that should be considered on the legal question of duty.
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Campbell, supra, 206 Cal.App.4th at 33. Here, both factors (foreseeability and extent of the
burden) weigh heavily in TPC’s favor, and accordingly, this Court should find that TPC owed no

duty to Plaintiff.

c Plaintiff Has No Evidence Indicating That He Was Actually Exposed to
Asbestos as a Result of Any TPC Activity

Should the Court find that TPC did owe Plaintiff a duty, summary judgment must still be
granted because Plaintiff lacks sufficient evidence to prove causation. “A threshold issue in
asbestos litigation is exposure to the defendant’s product. The plaintiff bears the burden of proof
on this issue.” McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1103.
Plaintiff must prove (1) he was exposed to a defendant’s asbestos-containing product and (2) this
exposure was, in reasonable medical probability, a substantial factor in causing his alleged
condition. Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4" 953, 982-983. “If there has been no
exposure, there is no causation.” McGonnell, supra, 98 Cal.App.4th at p. 1103. In order to
survive summary judgment, Plaintiff must produce admissible evidence “demonstrating that
exposure to [defendant’s] asbestos products was, in reasonable medical probability, a substantial
factor in causing or contributing to [his] risk of developing cancer.” Rutherford, supra, 16

Cal.4th at 957-958. “The mere ‘possibility’ of exposure does not create a triable issue of fact.”

Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 108. (emphasis added).

Moreover, exposures that play only an “infinitesimal,” “negligible,” “theoretical” part in
causing the injury are insufficient. Rutherford, supra, 16 Cal.4th at pp. 969, 978. Plaintiff, not
defendants, bears the burden of proof on this issue. /d. at pp. 977-978. No exception is provided,
even where the purported evidence is supposedly difficult to obtain. As the Court of Appeal has

noted:
We appreciate the difficulty of proving exposure to a particular
defendant’s products or activities in cases of latent diseases where
memory-dulling decades can intervene between toxic exposure and
prosecution of an. action for damages. Nevertheless, even under the
most lenient causation standards, there must be proof that the
defendant's asbestos products or activities were present at
plaintiff's work site [and were, in reasonably medical probability, a
substantial factor in causing the alleged illness. (Rutherford, supra,
16 Cal.4th at pp. 982-983.)} . .. Here, only rank speculation, not
reasonable inferences, could support a conclusion that [plaintiff]
was exposed to [defendant’s] installed asbestos materials. Lacking
proof of causation, all of [plaints] claims against [defendant]

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fail.”
Smith v. ACand S, Inc. (1994) 31 Cal.App.4th 77, 89 (emphasis added), disapproved on another
ground by Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1245,

“Many factors are relevant in assessing the medical probability that an exposure
contributed to plaintiff's asbestos disease.” Lineaweaver v. Plant Insulation Co. (1995) 31
Cal.App.4th 1409, 1416. These include the exposure’s frequency, regularity, and proximity to
plaintiff, the type of asbestos product at issue, the type of injury suffered, and other sources of
plaintiff's injury. Jd at pp. 1416-1417. Said differently, “[Plaintiff] cannot prevail against
[Defendant] without evidence that [Plaintiff] was exposed to asbestos-containing materials. . . by
[Defendant] with enough frequency and regularity as to show a reasonable medical probability
that this exposure was a factor in causing the plaintiff's injuries.” Whitmire v. Ingersoll-Rand Co.

(2010) 184 Cal_App.4th 1078, 1084, (emphasis added).

1. Plaintiff's Deposition Testimony And Plaintiff's Written Discovery Responses Are
Insufficient to Sustain Any Cause of Action Against TPC As They Fail to
Demonstrate Exposure to an Asbestos Containing Product by Admissible
Evidence

When assessing whether, in fact, there is evidence of causation within the context of
summary judgment, Plaintiff's deposition testimony is crucial to the analysis. Such testimony is
“precisely the type of evidence specified by the Code of Civil Procedure (§ 437c, subd. (b)) and
our Supreme Court (Aguilar, supra, 25 Cal 4th at p, 855) as proper evidence to support a
summary judgment motion.” McGonnell, supra, 98 Cal.App.4th at p. 1104. In McGonnell, the
Court of Appeal noted:

Tt is not enough to produce just some evidence. The evidence must
be of sufficient quality to allow the trier of fact to find the
underlying fact in favor of the party opposing the motion for
summary judgment. (Aguilar, supra, 25 CalAth at p. 850.) [For
example,] [a]ll that exists in this case is speculation that at some
time [plamtiff] might have cut into a wall that might have contained
Kaiser joint compound that might have contained asbestos. The
evidence creates only “a dwindling stream of probabilities that
narrow into conjecture.”

fd. at p. 1105, emphasis added; see also Andrews v. Foster Wheeler LLC (2006) 138
Cal.App.4th 96; Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282; Dianin v.
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Owens-Corning Fiherglas Corp. (1994) 28 Cal.App.4th 650. Evidence that gives rise to mere
speculation is insufficient. Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.

Dumin v. Owens-Illinois (1994) 28 Cal.App.4th 650 is instructive. In that case, the Court
of Appeals affirmed directed verdict for Defendant insulation manufacturer Owens Illinois on the
issue of whether decedent had been exposed to its “Kaylo” brand insulation at the shipyard where
decedent worked. Jd. at 656-67. Because the only evidence supporting Plaintiffs claim of
exposure to Kaylo insulation at the trial court level was deposition testimony of a shipyard worker
employed at the shipyard during the same general time frame as decedent, who testified that
Kaylo insulation was present at the shipyard in unspecified quantities during an unspecified time
frame, the Court affirmed the dismissal. In particular, the Court held that the evidence was
insufficient to raise a reasonable inference that Decedent was actually exposed to defendant’s
product, since the evidence was fatally vague as to (1) the exact time period when Kaylo was
present at the jobsite; (2) the exact quantities of product that were present at the jobsite; and (3)
when and how the decedent would have been exposed to the instilation in the first place. /d.

The same rationale applies here. At best, Plaintiff can only establish that he worked at two
job sites where Plant Maintenance employees were also working. (SUMF, Nos. 7-25). At
Tidewater Oil, Plaintiff testified that Plant Maintenance workers performed clean-up work and
that he recalled them stripping insulation. (SUMF, No. 19). When asked, Plaintiff admitted that
he did not know the brand name or manufacturer of the alleged insulation, nor did he know the
year the insulation was first installed. (SUMF, No. 20). He alleged that the Plant Maintenance
workers worked 15-30 feet away from him. (SUMF, No. 21).

At Phillips Petroleum, Plaintiff testified that he recalled seeing the Plant Maintenance
stripping insulation, however, he did not know the brand name or manufacturer of the insulation,
nor did he know the year the insulation was first installed. (SUMF, No. 22). He estimated to
being 15-20 feet away from the Plant Maintenance workers, but could not estimate how long he
was in their presence. (SUMF, No. 23). While he generally testified that the Plant Maintenance
workers were working on a “coker”, he could not identify where in the refinery the coker was

located. (SUMF, No. 24).

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Given the paucity of site specific evidence recited above, Plaintiffs’ only attempt to
impose liability on TPC through the generalized testimony that TPC performed clean-up work
and stripped “asbestos insulation” in his presence. Importantly on cross-examination, however, it
was definitively demonstrated that there is no actual evidence in this case demonstrating that
anything Plant Maintenance allegedly swept, or worked with, was asbestos-containing, but rank
speculation. (SUMF Nos. 8, 19-24). Specifically, Plaintiff admitted that he did not know the
year the insulation was installed, nor did he know the brand name or manufacturer of the
insulation, (SUMF Nos. 20,22), No one told Plaintiff the year the insulation was installed, nor
was he present when the insulation was installed. (SUMF Nos. 20, 22). In short, Plaintiff has no
basis to testify to the composition of the insulation he alleges TPC disturbed. (SUMF Nos, 19-
24). Absent this foundation, Plaintiff’s testimony regarding the work performed by the Plant
Maintenance workers is entirely speculative. Apart from Plaintiff's insufficient testimony,
Plaintiffs lack any other evidence to prove causation. Plaintiff identified himself as the only
individual with evidence regarding Plaintiff's work history and exposures with and around
TPC/Plant Maintenance. (SUMF, No. 11).

Further, TPC propounded “all facts” special discovery on Plaintiffs to further ascertain the
state of evidence in this case. (SUMF, No. 9). In his responses, Plaintiffs merely generalize
Plaintiffs prior testimony that he saw TPC’s employees working at the Tidewater and Phillips
Petroleum refineries, but does not supplement this testimony with anything outside of general
allegations concerning any admissible, tangible evidence that TPC even worked with asbestos-
containing products in the Plaintiff's presence. (SUMF, Nos. 25). Plaintiffs’ boilerplate responses
merely allege that Plaintiff was exposed to asbestos by working in close proximity to trades
employed by TPC (Plant Maintenance). (SUMF, Nos. 25). Plaintiffs’ responses generally claim
that TPC workers performed clean-up work and stripped asbestos-containing insulation. (SUMF
Nos. 9, 10, 25). Plaintiffs offer no evidence supporting this contention. (SUMF, Nos. 9, 10, 25).
Instead, Plaintiffs’ responses to written discovery go on for pages with irrelevant text regarding
insulation usage throughout many decades. (SUMF No. 10). There is no evidence presented in

Plaintiffs’ responses to TPC’s special discovery that specifically demonstrates that the alleged

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insulation Plant Maintenance workers allegedly worked with at Tidewater Oil or Phillips
Petroleum was asbestos-containing. (SUMF Nos. 9, 10, 25). In fact, Plaintiffs’ boilerplate
responses have no bearing to TPC, Plaintiff, Tidewater or Phillips Petroleum whatsoever.
(SUMF Nos. 9, 10, 25). Such “mere allegations” are insufficient in the face of summary
judgment. (CCP § 437c (p)(2); Andrews, supra, 138 Cal.App.4th at 1073

Accordingly, since Plaintiffs lack sufficient evidence to prove that TPC disturbed
asbestos-containing versus non-asbestos-containing insulation while in Plaintiff's presence,
causation cannot be established. As such, summary judgment is appropriate,
IV. CONCLUSION

For the foregoing reasons, TPC respectfully requests this Court grant its Motion for

Summary Judgment.

DATED: February 21, 2013 COOLEY MANION JONES LLP

Lindsay Weiss, Esq.
Attorneys for Defendant,
TEMPORARY PLANT CLEANERS, INC.

3 “Lf plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate
their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost
certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs’ factually
devoid discovery responses.” Andrews, supra, 138 Cal.App4th at 107. Defendant may show that plaintiff lacks
necessary evidence on the issue of causation through “factually devoid discovery responses.” Union Bank v,
Superior Court (1995) 31 Cal.App.4th 373, 590; Andrews, supra, 138 Cal.App.4th at 101. Factually devoid
discovery responses are only one example of circumstantial evidence from which courts may infer that a plaintiff
lacks essential evidence. dndrews, supra, 138 Cal.App.4th at 101.

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PROOF OF SERVICE BY ELECTRONIC TRANSMITTAL

lam a citizen of the United States and employed in San Francisco County, California. 1
am over the age of eighteen years and not a party to the within-entitled action. My business
address is 201 Spear Street, is? Floor, San Francisco, CA 94105.

On February 21, 2013, | electronically served via Lexis/Nexis File and Serve the

following document on all parties as set forth in the accompanying transaction report:

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S MEMORANDUM OF
POINTS AND AUTHORITIES EN SUPPORT OF ITS MOTION FOR SUMMARY
JUDGMENT

i declare under penalty of perjury under the laws of the State of California that the above

is true and correct.

Executed on February 21, 2013, at San Francisco, California.

Mat Cher —.

MAE CHU

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DEFENDANT TEMPORARY PLANT CLEANERS, INC.°S MEMORANDUM OF POINTS AND
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