Notice of Appeal: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                APP-003

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name. State Bar number, and address): ™ FOR COURT USE ONLY
Seavron Sacere Lupe ee
f LY
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|__atrornay FoR (Name: Robert Ross, et al . County of San-Francisco |
: SUPERIOR COURT OF CALIFORNIA, CouNTY OF San Francisco JAN 24 2013
: a ee 400 McAllister Street Clerk of the Court
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BRANCH NAME: i
PLAINTIFF/PETITIONER: Robert Ross, et al.
DEFENDANT/RESPONDENT: Cosco Fire Protection, Inc.
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[Bate] [Department] [FulliPartial Day] Description of Proceedings Reporter's Name

() 7/24/12 503 Partial Hrg on MSJ/Cosco Fire P. Rodriguez #12436

(2) Protection, Inc.
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Date: January 24, 2013

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(TYPE 08 PRINT NAME) (SIGNATURE OF APPELLANT

‘APP.003 [Rev. duly 1, 2049) APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL Page 4 of 4
(Unlimited Civil Case)SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BEFORE THE HONORABLE TERI L. JACKSON

DEPARTMENT 503 .

---000---
ROBERT ROSS, ORIGINAL
. Plaintiffs, oo
vs. No. ‘CGC-10-275731
Cc.C. MOORE & CO. ENGINEERS,
Defendants.
/

REPORTER'S TRANSCRIPT OF PROCEEDINGS

{Motion for Summary Judgment)

July 24, 2012

Taken before Patricia O. Rodriguez

CSR No, 12436

Aiken Welch Court Reporters
One Kaiser Plaza, Suite 505
Oakland, California 94612
(510) 451-1580/(877) 451-1580
Fax: {510) 451-3797
www.aikenwelch.com

'
i
|24

25.

APPEARANCES OF COUNSEL:
For the Plaintiffs:

JAMES P. NEVIN

Brayten & Purcell, LLP
222. Rush Landing Road
Novato, California 94948

For the Defendant COSCO FIRE PROTECTION, INC.:

TODD M. THACKER

Jackson Jenkins Renstrom, LLP
55 Francisco Street, 6th Floor
San Francisco, California 94133

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1224

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PROCEEDINGS
Tuesday, July 24, 2012
~7-000--~

THE COURT: Just give me one moment. I read this
last Friday. I'm ready. Let me just ‘cut to the chase so you
all understand where the Court was coming from: In terms of
an asbestos content, or exposure, I believe that the plaintiff
met its burden -- I mean, excuse me -- defense did not shift
the burden, so there is a triable issue based upon the
plaintiff's testimony that, in cross-examination, that he knew
the fire proofing was gray-ish in fiber, and his belief that
that was asbestos.

In terms of issue number two, the substantial
factor, again, I do not believe that the defense shifted its
burden -- excuse me -- defense did shift its burden on a
substantial factor. But Dr. Herman Bruch -- is that his name?

MR. NEVIN: B-R-U-C-H.

THE COURT: Made it a triable issue. Issue three,
however, is the duty. That, I believe, the defense shifted
its burden, and that the plaintiff did not give me a triable
issue. So that is where it is, it's about duty, duty, duty.
So, I mean, that is how I made my ruling. :

MR. NEVIN: James Nevin, for the plaintiff.

THE COURT: Does that clear it up for everyone?

_MR. NEVIN: It does, your Honor. Thank you. James

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/12Nevin, for the plaintiff.

MR. THACKER: .Todd Thacker, for the defendant Cosco.

MR. NEVIN: Your Honor, I will address exactly that
issue: That the Court's finding that the defendant did not >
owe the duty to Mr. Ross because there is no triable issue as
to whether the defendant knew or should have known the
asbestos content of the fire proofing at the time.

And there is three reasons, three areas, that I want
to talk about, Judge: The first is, burden shift, the burden
did not shift, the second is the legal construct of duty, and
the third is triable issue.

So the First as to burden: Your Honor, I would
point to the defendant's separate statement. In the
defendant's separate statement, the only two issues, the only
two statements, paragraphs, that deal with this particular
issue is paragraph 11 and paragraph 22.

Paragraph 11 states that plaintiff was unable
identify any document showing either that Cosco was present on
any site, or that sprinkler fitters should have known that
shooting studs for the purpose of hanging supports and hangers
might be hazard to anyone.

Now that is not directly on the issue of the
asbestos content of fire proofing, but subsumed within,
“should. they have known it was hazardous?" And “should they

have known it was asbestos?"

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1224

25

So then we go and look at the defendant's citation
for this statement in number 11. They cite to plaintiff's
response to number 18. When we look at what was question
number 18, defendant's special interrogatories number 18, had
nothing to do with that. It said: "If you contend you were
exposed to asbestos-containing products disturbed by Cosco,
please identify each document which pertains to or relates to

such exposure, including but not limited to statements,

depositions, affidavits, correspondence, or memoranda."

So they in fact have not asked the right question.
And their separate statement, which claims to have asked the
right question, cite to something else. Okay.

THE COURT: Didn't their interrogatories include
some kind of a catch-all one? Yeah, they could have asked it
more specifically. But it was’ a catch-all asking: "For all
facts supporting your contention," or plaintiff's contention
that, "the defendant was liable as alleged in the complaint."
Which, unfortunately, which means that you would have to give
them everything in that response. But doesn't that include
the duty?

MR. NEVIN: Assuming it arguably does, which I don't
think it doés, but assuming it arguably does, let's look at
our response. So if we look at plaintiff's special
interrogatory response, which is attached to defendant's

motion. Okay. And we focus in on this issue of defendant

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1224

25

knowing the content of the fire proofing, that it was asbestos
containing. We look at plaintiff's response to that all fact
question, and it starts on page three, but it carries over
onto page. five, where we get -- again, this is all facts, so
we got a lot of facts to shift.

But focusing in on this issue, asbestos content at
the time, on page three of plaintiff's responses, starting at
line 25, we refer to a 1972 article by Nickolson, describing
fire proofing as asbestos containing at the time.

Now this is important, because the issue that the
Court has raise is: Why should they have known at the time?
Well, this is literature that we've cited to at the time,
pointing out the asbestos content.

On the -- right above that section, we talk about
the OSHA regulation. Now starting in '72, which most of the
exposure in this case against, from this defendant, occurred
after '72, OSHA presumes, and requires them to presume
asbestos content, they are on notice, constructive notice, the
law requires you to presume and to test, to be safe.

Starting in -- if we go to the next page, page four
of plaintiff's responses, starting at line four, we discuss
the 1973 EPA ban, which again required folks just like this
defendant, to presume that it was asbestos. In fact, the EPA
states up until '73, all fire proofing was ten to 80 percent

asbestos.

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/12THE COURT: I'm sorry. What was it?

MR. NEVIN: Was ten to 80 percent asbestos
containing. Fire proofing. was, you know, had a huge asbestos
content.

THE COURT: Oh.

MR. NEVIN: No -- all fire proofing was asbestos.
And the amount of asbestos into it was ten to 80 percent. In

other words, some fire proofing was mostly asbestos and not

many other ingredients.

So this is information we provided in our
interrogatories responses to their all facts question that
points to why they should of known at the time that it was
asbestos containing, because under OSHA, they were required to
know. And this information was published.

So even if we look at all facts, and consider that
enough, our response, in fact, was not factually devoid, so
the burden doesn't shift at all.

If we go back to their separate statement, the only
other point that they add is paragraph 22, where they. say:
"Mr. Ross does not have any information showing that Cosco
knew that fire proofing they used contained as." So that is
right on point. That is exactly the issue.

Except what do they cite to? They only cite to his
deposition. Well the whole point of the Weber case is that is

not enough, because why should Mr. Ross have personal

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1224

25

knowledge of whether or not the defendant knew the content?
They. need to ask the right question to us, so we can give all
the reasons why we will be able to prove our case at trial as
to asbestos content.

So the burden cannot shift, under Weber, under
Aguilar, because they did not ask the right questions. And
regardless, they got the answer, we gave them information. It
was not factually devoid so the burden cannot shift.

You know, there is a good case, the Homestead
Savings case, that points out that this -- 179 Cal App 3rd,
494, that a motion for summary judgment is not a trap. - They
need to clearly, in their separate statement, put forth their
assertions on why we lose, and clearly point to correct
evidence. They did neither, and so the burden doesn't shift.

So secondly, your Honor, is even hypothetically the
burden did shift, let's talk about duty, and this notion that
somehow they did not owe him a duty unless we can show they
knew or should have known of the content.

Negligence, your Honor, does not require knowledge.
Negligence is ordinary care to avoid injuries to others.
Civil Code Section 1714 is what embodies negligence in
California. And there is no concept of "You must have
knowledge." It's duty of ordinary care to all others,
particularly someone like Mr. Ross, a bystander within their

zone of activity.

-Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1224

25

Negligence is not just acting, but it's in failing
to act. Not only is it not just an action, it's also of
omission. ‘They omitted, if you believe their -- if you
believe what they say, they omitted to learn about the hazards
of asbestos, so therefore, they're failure to learn about the
hazards was itself negligent.

The defendant was a sprinkler fitting company.

Every day, all day long, they shot their hangers into the fire
proofing, whether sometimes scraping it off before, so they
could get a clean shot, sometimes not. Either way, from the
scrap off, or the shot itself, they were releasing fire
proofing.

This would be like a demolition company saying:
Well, we didn't know that there was bad stuff in what we were
disturbing every day." This is what they did every day. They
can't ~- the law doesn't want companies to simply be an
ostridge, and put their head in the sand, and say: "We didn't
no. Oh, well. We're not negligent."

The law doesn't care about knowledge, when it comes
to negligence. Moreover, again, this -- the time period is
important here because most of this exposure occurred after
'72, when OSHA required them to know. Their failure to know,
if anything, is a violation of the statute is negligence per
se.

They -- either way, it's either negligence per se or

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/12it's notice. They were required to know, from OSHA, from the
EPA, from Mishap, at this time, that this material was
asbestos containing, that they needed to test, that they
needed to take precautions, that needed -- they needed to
protect their own employees, and the folks working around
them. That was the entire purpose of OSHA in '72.

And of course this goes back to 1934, with the
California General Industry Safety orders. OSHA wasn't some
new amazing revelation in '72. It codified what was already
the law in California, starting back to 1934, it's just the
science got a little better.

But going back to 1934,. they were required to test
to find out if there asbestos, arsenic, lead, all these other
materials that were toxic, and if they were over a certain
level, then they had to take precaution.

So this notion, your Honor, that somehow we need to
show that they knew, or should have known of the asbestos
content in order to have duty, is false. It doesn't apply to
negligence, it doesn't apply to California law, it's a
complete missapplication of law. I don't think it could be
any more clear-cut then that.

THE COURT: Okay. Thank you.

MR. NEVIN: But the third reason, your Honor, that
this motion should be denied is, if in fact we go under the

standard that we must show that they knew, or should have

10

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/12it

known, well, we've done that. We've at least presented a
triable issue. That goes to the Der. Richard Coen declaration,
your Honor, which is Exhibit D to our opposition.

Exhibit D, to our opposition, Dr. Coen's
declaration, at paragraph nine, goes to this key issue. And
let me paraphrase before we get into it, which is essentially:
"Content doesn't matter, because all dust was bad," and that
was known way before knowledge about asbestos came up. So
what Dr. Coen points out is that: "Occupational dust is
hazardous, whether or not it contains asbestos."

So essentially this notion of content is a red
herring, because in doing the activities that they did,
disturb any material on the job site and themselves and
others, they were being negligent. Because this information
was available to them hundreds of years before the knowledge
about even asbestos. So they didn't know content.

And that's why in paragraph nine, subsections A

through almost the end of the alphabet, Dr. Coen goes through

specific examples in the literature, starting in 1760, where

not just focused on asbestos, but focused on dust, and
prevention, and common prevention techniques that were
required to be of defendants, just like this entity, to

prevent disease among workers, to take precautions because

dust leads to disease. That there was a minimal standard

recommended: Dressing rooms, lockers, washrooms, all the same

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/121| tactics that were used later to prevent asbestos-related
2| disease from asbestos dust, was applied for 100 of years
3| before that to all kinds of dusts.

4 So that is what then, Dr. Coen then concludes much

6| paragraph 13-F, he points out, as I have ‘today, that in

7| California, this goes back to the general industry safety

8) orders requiring these preventive techniques, all the way back

3 to 1934.
10 In subparagraph G, he points out, that as '55, those
11| general industry safety orders require that: "In every place

12| of employment where a work or processes is carried out in
13 connection which dust, fumes, mist, vapors, or gasses are
14| produced in quantities and under conditions which may be
15| harmful to employees, the operation shall be isolated."

16 : The law didn't care whether or not it was asbestos,

17| they had a duty to not be making dust. So that is why -- then

18) he gets paragraph 14 --~ where he concludes, that in his

19, opinion, in the 1960, a company like this defendant, worked in

20 construction on job sites where contractors and laborers where

21. working a like, should have been aware of potential health

hazards associated with the exposure to certain occupational

dust, generally. Right there, triable issue. Secondly, his

next sentence --

25) THE COURT: Was this -- counsel, can I ask

5| later in the declaration. And I should actually point out, in

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1213

-something? In the sprinkler industry, was that also in

existence at that time? When all -- when the study was done,
counsel?

MR. NEVIN: Oh, very well. Because the sprinkler
industry is part of all the other industries.

THE COURT: What was the year again, of that study?

MR. NEVIN: Well, I was actually referring to -- the

last thing I referred to was the law in California, going back

to 1934. But for example, the study that I pointed out

earlier was 1972.
, THE COURT: On the sprinklers.

MR. NEVIN: Right, on the fire proofing. And that,
in fact, that the study I pointed out was the -- the fire
proofing, which is all asbestos, is exposing all the type of
laborers on the job. It wasn't just talking about the guys
who installed fire proofing, it was talking about the guys
just like Mr. Ross, just like every other trade who was on
that job, was being exposed by it. That's why the EPA baned
it in '73, as it was exposing everybody. :

THE COURT: I know. Yes, counsel. I just wanted to
get some dates.

MR. NEVIN: So, yes. And so, really, the import of

your question is: Well, perhaps -- should the standard be

‘that there must be literature specifically, like a study, on

sprinkler fitters showing that sprinkler fitters had increased

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1214

visk of getting disease?

THE COURT: No. That was not my import of my
question, to be honest with you.

MR. NEVIN: Good. Because the John Crane case says:
"No, that's not the issue." The -- so, again, let's go back
to the focus here. So we have a triable issue from Dr. Coen

that dusts, in general, in 1960's, they should have known.

Okay.

Secondly, he gives a second sentence, in paragraph
14: “Likewise, they also should have known about the asbestos
dust." So whether you want to focus on asbestos content, or

not, either way, we have a triable issue from Dr. Coen's
opinion. And they can argue: “Well, that conflicts from what
our declaration from our PMK says," even though he has no
foundation to say anything he said.

When we have a conflict, we have a triable issue.

We have a way, and that is exactly what the jury is supposed
to do, not the Court in summary judgment.

So in conclusion, your Honor, as I pointed out, the
burden didn't shift in the first place, on this subissue.
Secondly, the law does not require knowledge of content for
there to be a duty for negligence. And third, even if the law
did require that, we have a very clear triable issue from
Dr. Richard Coen on the subject.

THE COURT: Okay. Thank you.

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1215

MR. THACKER: Yes, your Honor. Todd Thacker, again,
for Cosco. I'd like to go back to something. I was about to
bring this up and cite to -- cite to the discovery responses
of the plaintiffs. But Mr. Nevin actually said it in open
court: Asbestos containing fire proofing was banded by the
EPA in 1973. So what Mr. Nevin is saying is he's saying:
"Well, there is this 1972 regulation. This 1973 regulation
saying you should have know the hazards of fire proofing."

: But what we should have known is that the -- if it

indeed happened, that these fire proofing contractors were

‘violating the Environmental Protection Agency ban on fire

proofing in this instance.

I think we have shifted the burden here. And I
think Mr. Crossley's declaration, as the chief engineer for
Cosco, also contributes to the burden shifting, where he comes
forward and he says: "That Cosco did not learn that shooting
studs -- "

THE COURT: You're talking about I, I, I, versus,
you know, Costco. And that is one thing I found I had
problems with, or difficulty with his declaration,

MR. THACKER: Well, as Mr. -- it's difficult for us
as a corporation, to come up with a declaration saying that
this is what Cosco -- there is no -- there is no -- we can't
submit a declaration from the corporation. All we -- all we

can submit is a declaration from somebody with knowledge, or

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1224

25)

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- who would have been in the situation to know what --

everything that the corporation knew, and that is
Mr. Crossley.

Mr. Crossley was our chief engineer from 1979 to

1974 (sic). He was employed with Cosco since 1973. He's been

in the sprinkler fitting industry since 1964. So Mr. Crossley
is in an excellent position to say not only what Cosco knew,
but the information that was available to the sprinkler
fitting industry at this time.

And I think that is where Dr. Coen slightly goes off
the rails, because Dr. Coen is referencing us to all these
British medical journals, and other esoteric studies from
Standard Oil, and Roy Bonsive (phonetic), in 1934. And
saying: “Look, ever -- you should have known, as a sprinkler
fitter, that every single possible dust emission could have
damaged somebody, and therefore you're liable."

And I don't think that Dr. Coen connects the dots on
that. And I don't think it even really makes any common
sense, and I'll talk about why. First of all, Dr. Coen
doesn't say anything about the sprinkler fitting industry. He
doesn't identify anything that would have been available to
your -~ your common contractor showing that the shooting of
studs into fire proofing created a hazard to anybody in the
vicinity.

Cosco didn't think that even its own employees were

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1217

at risk from asbestos, much less an insulator 20 feet away.
And let's talk about Mr. Ross. Mr. Ross is an insulator.

Mr. Ross is working on a daily basis, on an hourly basis, with
ashestos lagging, this is in UMF's number seven and 23.

Mr. Ross is --.is doing direct work with this asbestos
containing material. :

And so what plaintiffs are saying is much like, if
they were saying that Mr. Ross was swimming in a pool of this
liquid, and then Cosco was over here, and there was some of
this liquid leaking from -- and running into the pool that
Mr. Ross was swimming in --

THE COURT: Doesn't that argument go the substantial
factor, which I've already dealt with in that issue?

MR. THACKER: No, that doesn't deal with substantial
facts. That deals with Cosco's knowledge... Why should Cosco
have thought that its little leak over here would damage Mr.
Ross when Mr. Ross is already swimming in a pool of this
material, due to his regular job?

That goes to Cosco's knowledge, and whether it was
reasonable for Cosco to think that its little leak over here
could possibly cause any damage to Mr. Ross.

THE COURT: So are you saying Cosco knew that the --
its little leak was asbestos?

MR. THACKER: No, I'm not saying that at all, your

Honor. I'm just saying that it's not reasonable to charge

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/12 -18

Cosco with that knowledge. I mean, even if Cosco did know
that it was asbestos containing, which I don't think there is
any evidence at all that they did, plaintiffs have not
provided any evidence whatsoever showing that Cosco knew that
this -~- that this material was asbestos containing.

But even if Cosco did know that it was asbestos
containing, there is no reason for Cosco to believe that its

shooting a couple of studs into the fire proofing would

have -- would have caused any problems.
And this is in -- Mr. Crossley goes into this,
saying: "Look, there is insulators. There are all sorts of

other trades who are disturbing fire proofing on a much larger
scale than the sprinkler fitters, who are simply shooting
studs into it. And nobody is taking any precautions here."

No sprinkler fitting company is taking any
precautions. And none of these companies that are -- that are
disturbing fire proofing at a much larger scale, are taking
any precautions. So what is it about why are all of these
companies who, theoretically under Mr. Nevin and Mr. Coen,
should have known how dangerous this was, none of these
companies are taking this -- are taking any of these

precautions? And the reason is, because none of this -- none

of this information is available to these companies --~-

THE COURT: Let me just ask you this question:

Would you not concede that the industry, the business,

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1224

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sprinkler systems, all knew that the hazards of asbestos?

MR. THACKER: I don't know if they did, your Honor.
Because here's the -- here's the thing, there is a big
difference between the -- what plaintiffs like to do is they
like to say: "Hazards of asbestos," like all asbestos
exposures are the same. But it's not. If you look at
Dr. Coen's declaration, at, for example -- like Subparagraph
dg, he says: By 1958, the American Conference of Government
Industrial Hygienist, had established a maximum atmospheric
concentration for asbestos dust of five million particles per
cubic foot of air."

So there is a difference between knowing that a
very, very high concentration of asbestos dust is dangerous,
and thinking that shooting studs into fire proofing is
dangerous. It's the same thing like carbon dioxide. We can
breath carbon dioxide right now, at a fairly low level, and be
perfectly fine. In fact, it's good for us.

But if we get carbon monoxide, or to much carbon
dioxide into the air, that is going to be poisonous. And it's
the same with any poison. Have you a larger dose,. the more
dangerous it is. And that is what Dr. Coen is pointing to,
and that is what the EPA is doing.

Mr. Crossley actually says that in his declaration.
He says, that: "There is no regulations regulating the dust

levels at the levels that would have been -- that were created

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Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1224

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by the shooting of studs."
These regulations are creating these very high -- or
limiting these very high levels of exposure. When what we're

talking about is an extremely low level of exposure, possible

exposure here. We're talking ahout shooting studs into fire

proofing, and a possible exposure to a guys 25 feet away.

And I would say, in this time period, the sprinkler
fitting industry did not know that this was a hazard. And
that is what Mr. Crossley says in his declaration: "Nobody
knew. _ No sprinkler fitting company was taking precautions at
this time." Because they didn't think such a low dose, even
if they thought it was asbestos containing, could possible be
a hazard.

Plus, we talk about, Mr. Crossley says it in his
declaration, Mr. Nevin admitted, and their deposition -- or
their interrogatory responses say: The federal government
banned asbestos-containing fire proofing in 1973.

So there is no reason to think from 1973 forward,
that any of the fire proofing was asbestos containing at all.
And there was certainly no reason for Cosco to believe that it
was working with any asbestos-containing fire proofing at that
time. And as Mr. Nevin said, the vast majority. of the alleged
exposure is taking place after this 1937 period. So once you
hit 1973, and the EPA has banned asbestos-containing fire

proofing, there is really no reason --

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1221

THE COURT: But didn't he say he also worked at

Highland Hospital between 1967 and '72?

MR. THACKER: He said he worked there for a month,
for a total period of a month --

THE COURT: So, it --

MR. THACKER: -- between from '67:to '72.

THE COURT: Could it reasonably be inferred that,
okay, that the fire proofing at that time contained asbestos?

MR. THACKER: It's possible that the fire proofing
at that time contained asbestos. Whether Cosco knew --
whether it actually did contain asbestos is one question.
Whether Cosco knew that it contained asbestos, is a different
question, and there is absolutely no evidence on that point.

There's no -- obviously if the EPA is banning
asbestos-containing fire proofing in 1973, there must have
been nonasbestos-containing fire proofing available at that
time. So it stands to reason that it's possible that
nonasbestos fire proofing was being used prior to 1973.

But we really -- we really -- there's really no
evidence on that one way or another. And that is what
plaintiffs have to show. Plaintiffs have to show that we
knew, or should have known, that this -- this material we're
shocting studs into must have been asbestos containing.

And they also have to show that we -- we knew or

should have known that simply shooting studs into fire

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/1224

25

22

proofing could create a hazard to some guy working with the
game sort of stuff we're alleged to have disturbed, at a much
higher dose, 20 feet away while wearing a mask. I just don't
think that is a reasonable -- that.is a reasonable duty to be
placing on a sprinkler fitter like Cosco.

THE COURT: Okay. /

MR. NEVIN: Three-point response, your Honor, quick.

THE COURT: Very quickly, please.

MR. NEVIN: I agree he gets to argue all of that.
And the fact he gets to argue for 20 minutes about why Richard

THE COURT: Let's not get into -- no -- time frame.

MR. NEVIN: No. I'm saying he had a lot of stuff, a
lot of good arguments on why Richard Coen is wrong, and that
is a triable issue. He used the word "reasonable," about six
times. That is a triable issue for the jury to decide,
whether Richard Coen is right, or the evidence that they will
present, instead of counsel just arguing at trial, is right.
It's a triable issue.

Second, he points out: "Well, OSHA banned it in
‘72. And in fact OSHA law say: "Presume, if it was put in
the building until 1980, that was asbestos." Okay. We're
talking -- the information from Mr. Ross is, we're talking
about fire proofing that already there. We're not talking

about a brand new building being built after '74. We're

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/12a.m.)
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talking about fire proofing already there. Old. They were
required to presume it was asbestos.

Finally, the declaration of their PMK, Mr. Crossley,
at page two, line nine through 12, he admits: "Fire proofing
became asbestos-free in the very early '70s." Well, if your
tentative is: We haven't been able to show that they knew or
should have known asbestos content, they've admitted to
asbestos content in their own declaration, because we're
talking about fire proofing that was already there.

THE COURT: Submitted?

MR. NEVIN:. Submitted.

THE COURT: Let me have proposed orders under
submission.

(Whereupon the.proceedings were concluded at 10:47

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/12o Oo © NO OO B&B WO NM

wh anh
=

24
STATE OF CALIFORNIA )

COUNTY OF ALAMEDA )

I, PATRICIA 0, RODRIGUEZ, do hereby certify:

That said proceedings were taken before me at said
time and place, and were taken down in shorthand by me, a
Certified Shorthand Reporter of the State of California, ard
were thereafter transcribed into typewriting, and that the
foregoing transcript constitutes a full, true and correct
report of said proceedings that took place;

IN WITNESS WHEREOF, I have hereunder subscribed my

hand this 7th day of September 2012.

PATRICIA O.° RODRI Zy

State of California

Aiken Welch Ross vs. C.C. Moore & Co. Engineers 7/24/12eC Oo Ww A WR YW DN

222 RUSH LANDING ROAD
POBOX 6169
NOVATO, CALIFORNIA 94948-6169
(415) 898-1555

BRAYTON®PURCELL LLP
ATTORNEYS AT LAW

PROOF OF SERVICE BY MAIL

1am employed in the County of Marin, State of California. I am over the age of 18
years and am not a party to the within action. My business address is 222 Rush Landing Road,
P.O. Box 6169, Novato, California, 94948-6169.

On January 24, 2013, 1 served the following document(s) described as:

APPELLANT’S NOTICE DESIGNATING RECORD ON APPEAL
(UNLIMITED CIVIL CASE)

on the interested party(ies) in this action as follows:

Counsel for COSCO FIRE PROTECTION, INC.
Jackson Jenkins Renstrom LLP

Anthony C. Chiosso, Esq.

55 Francisco Street, 6" Floor

San Francisco, CA 94133

BY OFFICE MAILING: Tam readily familiar with the business practice at my
place of business for collection and processing of
correspondence for delivery by mail. Correspondence so
collected and processed is deposited with the United
States Postal Service on the same day in the ordinary
course of business. On the above date the said
envelope(s) were collected for the United States Postal
Service following ordinary business practices.

Executed on January 24, 2013, at Novato, California.
I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.
nane L. Davidowski

Robert Ross, et al. v. C.C. Moore & Co. Engineers, et al.
San Francisco Superior Court Case No. CGC-10-275731

GAPOSip05- mil Designating Record-on-Appesl wp, 1
PROOF OF SERVICE BY MAIL