On December 17, 2010 a Motion,Ex Parte was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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Walsworth, Franklin, Bevi IAN P. DILLON, State Bar No. 203612 idillon@wfbm.com 2 | PAMELA E. STEVENS, State Bar No. 232609 pstevens@wibm.com ELECTRONICALLY 3 | ALEX A. LOZADA, State Bar No. 275416 FILED alozada@wfbm.com Superior Court of California, 4] WALSWORTH FRANKLIN BEVINS & McCALL, LLP County of San Francisco 601 Montgomery Sireet, Ninth Floor § | San Francisco, California 94111-2612 FEB 21 20 13 Telephone: (415) 781-7072 BY: ALISON AGBAY 6 | Facsimile: (415) 391-6258 Deputy Clerk 7 || Attorneys for Defendant D. ZELINSKY & SONS, INC. 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 0 1 | ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731 2 Plaintiffs, Hon: Teri L. Jackson Dept: 503 3 vs. Date: May 7, 2013 Time: 9:30 a.m. 4 1C.C. MOORE & CO. ENGINEERS; et al., DEFENDANT D. ZELINSKY AND SONS, 5 Defendant. INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN 6 SUPPORT OF MOTION FOR 7 SUMMARY ADJUDICATION 18 Trial Date: June 10, 2013 9 20 Pursuant to California Code of Civil Procedure section 437c(b), defendant D. ZELINSKY 21 | & SONS, INC. (“Zelinsky”) hereby submits the following Separate Statement of Undisputed 22 | Material Facts in support of its Motion for Summary Adjudication of Plaintiff's punitive damages 23 | claim: 24 i] 25 Vit 26 Vis aT if 28 1/7 -l- DEFENDANT D. ZELINSKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT GF MOTION FOR SUMMARY ADJUDICATION 22770171 3619-32595,1 FACTS IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 2 L PLAINTIFF’S CAUSE OF ACTION FOR STRICT LIABILITY FAILS BECAUSE ZELINSKY WAS NOT A MANUFACTURER, SUPPLIER OR 3 DISTRIBUTOR OF ASBESTOS-CONTAINING PRODUCTS; AND PLAINTIFF HAS NO ADMISSIBLE EVIDENCE TO SUPPORT SUCH A CLAIM. UNDISPUTED MATERIAL FACTS AND OPPOSING PARTY’S RESPONSE AND SUPPORTING EVIDENCE: SUPPORTING EVIDENCE: 6 1. On December 17, 2010, Robert Ross and 7 Jean Ross filed this asbestos- related personal injury and loss of consortium 8 action against D. Zelinsky & Sons, Inc. (“Zelinsky”), alleging that Robert Ross 9 (“plaintiff”) developed colon cancer and asbestosis as a result of exposure to 10 asbestos-containing materials for which Zelinsky is partially liable. Plaintiff's Complaint, attached to the 12)}Declaration of Alex A. Lozada (Lozada Declaration”) as Exhibit A (A Request for 13 || Judicial Notice is filed herewith), 14f. Plaintiff asserted causes of action against Zelinsky for negligence, strict 15 liability, false representation, punitive damages, and premises owner/contractor 16 liability. 17 || Plaintiff's Complaint, attached to the Lozada Declaration as Exhibit A. 19|/3- On January 13, 2012, plaintiff dismissed his causes of action for false 20 representation and punitive damages against Zelinsky. Request for Dismissal, filed January 13, 2012, 49 || attached to the Lozada Declaration as Exhibit B. 4. Zelinsky is a contractor that provides 24 painting services. 25 | Deposition of James McCloskey, taken August 9, 2006, attached to the Lozada Declaration as 26 |] Exhibit C, at 47:3-16. -2- aueea the DEFENDANT D. ZELINSKY AND SONS, INC,'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL avronn ara FACTS IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 22770171 3619-3.2595il 2 3 4 5 6 7 8 9 20 21 22 23 24 25 26 27 28 Watsworth, Franti, Bevins & MeCall, LLP Avrunyeesar ta | UNDISPUTED MATERIAL FACTS AND OPPOSING PARTY’S RESPONSE AND SUPPORTING EVIDENCE: SUPPORTING EVIDENCE: 5. At deposition, plaintiff testified that he was familiar with Zelinsky as a painting contractor, Relevant portions of plaintiffs deposition testimony, attached to the Lozada Declaration as Exhibit H at 1337:17-24. 6. Despite Zelinsky’s status as a painting contractor, plaintiff alleges a cause of action against Zelinsky for strict liability. Plaintiffs Complaint, attached to the Lozada Declaration as Exhibit A. 7. Although requested in — Special Interrogatory No. 10, plaintiff fails to identify the names of manufacturers, suppliers, and/or distributors of asbestos-containing products Zelinsky allegedly used in plaintiffs presence. Zelinsky’s Special Interrogatories to plaintiff attached to the Lozada Declaration as Exhibit D at 3:5-9; and plaintiff’s responses to Zelinsky’s Special Interrogatories attached to the Lozada Declaration as Exhibit E at 17:7-15. 8. Although requested in Zelinsky’s Special Interrogatory No. 7, plaintiff fails to identify any specific documents regarding the — asbestos-containing materials Zelinsky allegedly used in plaintiffs presence. Zelinsky’s Special Interrogatories to plaintiff attached to the Lozada Declaration as Exhibit D at 2:17-21; and plaintiff's responses to Zelinsky’s Special Interrogatories attached to the Lozada Declaration as Exhibit E at 12:25- 16:9. 9. Although requested in Zelinsky’s Special Interrogatory No. 8, plaintiff fails to identify any specific witnesses with information regarding the asbestos- containing products Zelinsky allegedly used in plaintiff's presence. Zelinsky’s Special Interrogatories to plaintiff 3. 2277017.1 3619-3,2595 DEFENDANT D. ZELINSKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATIONWalsworth, UNDISPUTED MATERIAL FACTS AND OPPOSING PARTY’S RESPONSE AND SUPPORTING EVIDENCE: SUPPORTING EVIDEN attached to the Lozada Declaration as Exhibit D at 2:22-25; and plaintiffs responses to Zelinsky’ s Special Interrogatories attached to the Lozada Declaration as Exhibit E at 16:10- 24. 10. Although requested in Zelinsky’s Special Interrogatory No. 20, plaintiff fails to provide any facts that support his alleged cause of action for strict liability against Zelinsky. Zelinsky’s Special Interrogatories to plaintiff, Set Two, attached to the Lozada Declaration as Exhibit F at 1:20-22; and plaintiff's responses to Zelinsky’s Special Interrogatories, Set Two, attached to the Lozada Declaration as Exhibit G at 1:21-38:18. 11. Although requested in Zelinsky’s Special Interrogatory No. 21, plaintiff fails to provide the names and/or contact information for any individuals with knowledge of facts that support his cause of action for strict liability against Zelinsky. Zelinsky’s Special Interrogatories to plaintiff, Set Two, attached to the Lozada Declaration as Exhibit F at 1:23-25; and plaintiffs responses to Zelinsky’s Special Interrogatories, Set Two, attached to the Lozada Declaration as Exhibit G at 38:18-26. 12. Although requested in Zelinsky’s Special Interrogatory No. 22, plaintiff fails to provide information regarding any documents that support his cause of action for strict liability against Zelinsky. Zelinsky’s Special Interrogatories to plaintiff, Set Two, attached to the Lozada Declaration as Exhibit F at 1:26-2:6; and plaintiff's responses to Zelinsky’s Special Interrogatories, Set Two, attached to the Lozada Declaration as Exhibit at 38:27-39:7. -4- “DEFENDANT D. ZELINSKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 22770171 3619-3.25931] UNDISPUTED MATERIAL FACTS AND OPPOSING PARTY’S RESPONSE AND SUPPORTING EVIDENCE: SUPPORTING EVIDENCE: plaintiff's discovery responses or at deposition supports his cause of action for strict liability against Zelinsky. 2 34113. No admissible evidence identified in 4 The pleadings on file in this action, as Exhibits 6] A through W attached to the Lozada Declaration. 7 8 I. PLAINTIFF’S CLAIM FOR PREMISES OWNER/CONTRACTOR LIABILITY FAILS BECAUSE PLAINTIFF HAS NO EVIDENCE THAT ZELINSKY OPERATED OR CONTROLLED ANY PREMISES WHERE PLAINTIFF 10 WORKED. 11][14. | On December 17, 2010, Robert Ross and Jean Ross filed this asbestos- related 12 personal injury and loss of consortium action against D. Zelinsky & Sons, Inc. 13 (“Zelinsky”), alleging that Robert Ross (“plaintiff”) developed colon cancer and 14 asbestosis as a result of exposure to asbestos-containing materials for which 1S Zelinsky is partially liable. 16||Plaintiff's Complaint attached to the Declaration of Alex A. Lozada (Lozada 17 | Declaration”) as Exhibit A (A Request for Judicial Notice is filed herewith). 18 15. Plaintiff asserted causes of action 19 against Zelinsky for negligence, strict Hability, false representation, punitive 20 damages, and premises owner/contractor a liability. Plaintiffs Complaint, attached to Lozada 22 || Declaration as Exhibit A. 23 16. On January 4, 2012, plaintiff dismissed 24 his causes of action for false representation and punitive damages 45 against Zelinsky. 26 Request for Dismissal, filed January 4, 2012, attached to the Lozada Declaration as Exhibit B. 27 28 “vain “5 Mccall LLP DEFENDANT D. ZELINSKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL seroma Tay FACTS IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 3619-3.25951q17. Zelinsky is a contractor that provides painting services. Deposition of James McCloskey, taken August 3 || 9, 2006, attached to the Lozada Declaration as Exhibit C, at 47:3-16. 4 18. Despite Zelinsky’s status as a painting 5 contractor, plaintiff alleges a cause of action against Zelinsky for premises 6 owner/contractor liability. 7 | Plaintiff's Complaint, attached to the Lozada Declaration as Exhibit A. 19. At deposition, plaintiff testified that he 9 observed Zelinsky at several job sites, including the following locations: Kaiser 10 Hospital, the Fairmont Hotel, Lawrence Livermore Labs, San Francisco Airport, 11 Chabot College, Lockheed, Stanford University, IBM, Hewlett-Packard, St. 12 Luke’s Hospital, San Francisco General Hospital, and San Francisco State 13 University. 14 || Relevant portions of plaintiff's deposition testimony, attached to the Lozada Declaration 15 || as Exhibit H at 1339:7-23; 1342:18-1343:13; 1349:1-6; 1600:2-1601:15; 1605:25-1606:9; 16 |, 1784:11-1785:15; 1790:19-1791:6; 1794:25- 1795:10; 1797:15-21; 1800:17-24; and 1803:7- 17 ]] 17; 1805:15-24. 18 1/20. For each of these sites, plaintiff testified that he did not see Zelinsky do anything 19 besides work relating to painting. 20 |] Relevant portions of plaintiff's deposition testimony, attached to the Lozada Declaration 21 Jas Exhibit H at 1365:25-1366:4. 22121. Although requested in Zelinsky’s Special Interrogatory No. 35, plaintiff 23 fails to provide any facts that support his alleged cause of action for premises 24 owner/contractor liability against Zelinsky. 25 Zelinsky’s Special Interrogatories to plaintiff, 26 || Set Two, attached to the Lozada Declaration as Exhibit F at 3:13-15; and plaintiffs responses to 27]| Zelinsky’s Special Interrogatories, Set Two, attached to the Lozada Declaration as Exhibit G at 42:26-43:6. -6- DEFENDANT D. ZELINSKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 22770171 3619-3.259528 Watswvort, Frawldin, Bevin & Metal, LLP laremersayiase 22, Although requested in Zelinsky’s Special Interrogatory No. 36, plaintiff fails to provide the nares and/or. contact information for any ‘individuals with knowledge of facts that support his cause of action for premises owner/contractor. liability. —_ against Zelinsky. Zelinsky’s. Special Interrogatories to plaintiff, Set Two, attached io the Lozada Declaration as Exhibit F at 3:16-18; and plaintif("s responses to Zelinsky’s Special Interrogatories, Set Two, attached to the Lozada Declaration as Exhibit G at 43:7-23. 23, Although in Zelinsky Special Interrogatory No. 37, plainuiff fails to provide information regarding any documents that support his. cause of action for premises owner/contractor liability against Zelinsky. Zelinsky’s Special Interrogatories to. plaintiff, Sei Two, attached to the Lozada Declaration as Exhibit F at 3:19-21; and plaintiff s responses to Zelinsky’s Special interrogatories, Set Two, attached to the Lozada Declaration as Exhibit G at 43:42-44:12, 24. any admissible evidence which supports his. premises owner/contractor liability cause of action against Zelinsky. ‘The pleadings on file in this action and Exhibits A through W of the Lozada Declaration. Dated: Februaty Be{_. 2013 WALSWORTH FRANKLIN BEVINS & McCALL, LLP ALEX A. LOZADA Attorneys for Defendant D. ZELINSEY & SONS, INC, INSKY AND SONS, INC'S SEPARATE STATEM! FACTS IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION DEFENDANT D. 3 B2T7O7S SO1H5.23595Walswardy, Keaiidi, Bevis MoCall LP arraivesnascae | PROOF OF SERVICE Robert Ross and Jean Ross vy. C.C. Moore & Co. Engineers, et al. San Francisco Superior Court Case Number: CGC-10-275731 Our Client: D. Zelinsky & Sons, Inc. [am employed in the County of $an Francisco, State of California, I am over the age of 18 and not.a party to the within action. My business address is 601 Montgomery Street, Ninth Floor, San Franciseo, California 94111-2612. On February 21, 2013, | served the within document(s) described as: DEFENDANT D. ZELINSKY AND SONS, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION onthe interested parties in this action as stated below: Brayton Pureell LLP 222 Rush Landing Road P.O. Box 6169 Novato, CA 94948 X] (BY ELECTRONIC FILING/SERVICE) I provided the document(s) listed above electronically to the LexisNexis File & Serve Website tothe parties on the Service List maintained on the LexisNexis File & Serve Website for this case. If the document is provided to LexisNexis electronically by $:00 p.tn., then the document will be deemed served on the date-that it was provided to LexisNexis. A copy of the "LexisNexis File & Serve Filing Receipt" page will be-maintained with the original document(s) in our office, [X] (BY PERSONAL SERVICE) I caused First Legal Services to deliver a true copy of the foregoing dacumient(s) in a sealed envelope by hand to the offices of the above addressee(s). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 21,2013, at San Francisco, California. ORI ee en ____ Neysa Akila _ (Type or print name} “ (Sighatare) Ce sre ieee DEFENDANT BD. ZELINSKY AND SONS, INC,'S SEPARATE STATE. FACTS IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 2277017. BOLE 2805,