Motion,Ex Parte: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                NOVATO, CALIFORNIA 94948-6169

oem NY KD he BY

10

ALAN R. BRAYTON, ESQ., 8.B. #73685
DAVID R. DONADIO, ESQ., S.B. #154436

SARAH N. BENDON, ESQ., 8.B. #267525 ELECTRONICALLY
BRAYTON&PURCELL LLP
Attorneys at Law sopekr IL ED,
5 Rush Fanding Road County of San Francisco ‘
Novato, California 94948-6169 JUL 10 2012
(415) 898-1555 Clerk of the Court
Tentative Ruling Contest Email: contestasbestasTR@braytonlaw,com BY: ALISON AGBAY

Deputy Clerk

Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ASBESTOS
No. CGC-10-275731

ROBERT ROSS and JEAN ROSS,

Plaintiffs,
PLAINTIFFS' EVIDENTIARY
OBJECTIONS TO DEFENDANT COSCO
FIRE PROTECTION, INC.’S MOTION
FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY
ADJUDICATION

vs.

C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit |
attached to the Summary Complaint

herein; and DOES 1-8500.

eee

Date: July 24, 2012

Time: 9:30 a.m.

Dept: 503, Hon. Teri L. Jackson
Trial Date: TBD

Action Filed: December 17, 2010

Plaintiffs respectfully request that this Court rule on plaintiffs’ evidentiary objections in
accordance with California Rules of Court, Rules 3.1352 and 3.1354, Vineyard Springs Estates,
LLC v. Super. Ct. (Wyatt) (2004) 120 Cal.App.4th 633, 635; Sambrano v. City of San Diego

(2001) 94 Cal.App.4th 225, 235; Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727,

736, and Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group
2005) 10:301.1, ch. 10-F.

The testimony of a lay witness concerning a particular matter is inadmissible unless and
until it is shown that the witness has personal knowledge of the matter. (California Evidence

Code § 702(a).) If a witness is offered to testify as an expert, the witness must first demonstrate

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special knowledge, skill, experience, training, or education sufficient to qualify as an expert in
the subject of his or her testimony. (Ev. Code § 720{a).) Defendant does not offer James
Crossley as an expert witness. His declaration evidences his lack of any personal knowledge of
the matters on which his testimony is offered, namely knowledge concerning the contractors
whose duties it was to apply fireproofing, the dangers that result from disturbing asbestos-
containing fireproofing, the amount of asbestos-containing dust that is created when
fireproofing or other asbestes-containing materials are disturbed, and what information
concerning the dangers of asbestos were known to defendant, COSCO FIRE PROTECTION,
INC. (hereinafter “COSCO FIRE”). Mr. Crossley does not provide any information regarding
his persenal experience with fireproofing or how he came to learn about asbestos-containing
fireproofing. Mr. Crossley’s declaration is conclusory and without foundation. It is based on
hearsay and must be stricken from the record.

Plaintiffs object to and move to strike defendant’s proffered evidence as follows:

1. Objections to Paragraph 6 of the Declaration of James Crossley in Support of

Defendant Cosco Fire Protection, Inc.’s Motion for Summary Judgment, or in the

Alternative, Summary Adjudication (“Crossley Declaration”), which states:

“Fireproofing was applied by the fireproofing contractor. Cosco was never

retained to apply fireproofing and the application of fireproofing was not part of

our job duties. We never purchased fireproofing as a part of our business. As far
as I know, fireproofing became asbestos-free in the very 1970s.”

Material Objected To:

1. Crossley Declaration §] 6.

Grounds for Objection:

1, This testimony lac!

s foundation and

competence, is speculative, states

unsupported legal con
and immaterial. (Evi

clusions, is irrelevant,
_ Code §§ 210, 350,

403, 405, and 702.) It is not enough for the

affiant simply to state
personal knowledge o

the affiant has
f the facts stated.

Rather, the declaration itself must contain

facts showing the dec’

jaration’s connection

with the matters stated therein, thereby
establishing the source of his or her
information. Otherwise, the declarant’s
testimony that he or she has such
Knowledge is purely a conclusion.

(Osmond vy. EWAP, Inc. (1984)

153 Cal App.3d 842, 851; Brown & Weil,
Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) ¥ 9:59, ch.
951-B; and Evid. Code § 702.) Code of Civ.

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Proc. § 437c(d) requires affidavits or
declarations in support of a motion for
summary judgment to be made on the basis
of “personal knowledge,” and not
information and belief. (Brown & Weil,
Calif, Practice Guide: Civil Procedure
Before Trial (The Rutter Group) fff 9:60.8
and 10:114; and Code of Civ. Proc.

§ 437c(d).) “Declarations based on
information and belief are insufficient to
satisfy the burden of ... the moving ... party
on @ motion for summary judgment...”
(emphasis added) (Lopez v. University
Partners (1997) 54 Cal App.4th 1117,
1124.) Furthermore, an affidavit based on
“information and belief” is hearsay and
must be disregarded, and it is “unavailing
for any purpose.” (Star Motor Imports, Inc.
v. Sup. Ct, (Shake) (1979) 88 Cal.App.3d
207, 204)

Here, James Crossley states the
following conclusions: (1) Fireproofing was
applied by a fireproofing contractor; (2)
Defendant, COSCO FIRE was never
retained to apply fireproofing and applying
fireproofing was not a part of its job duties;
(3) that defendant never purchased
fireproofing as a part of its business; and (4)
that Mr. Crossley believes that fireproofing
became asbestos-free in the very early
1970s. Mr. Crossley fails to assert factually
how he has foundation and competence to
arrive at the above conclusions, other than
the fact he worked for COSCO FIRE at
least up until 1984. These statements are
not supported by any foundational facts
explaining how Mr. Crossley would know
them. Nowhere in the declaration does it
state that Mr. Crossley was present when
any COSCO FIRE sprinklerfitters ever
performed sprinklerfitter work, that he has
any knowledge regarding the purchasing of
products that were used by any COSCO
FIRE employees, nor does Mr. Crossley’s
declaration say what documents or records
he reviewed to support his statements.

There is no foundational showing
that Mr. Crossley has any personal
knowledge or expertise to support his
statement that fireproofing was installed by
fireproofing, let alone that fireproofers
installed the fireproofing at the jobsites
where plaintiff, ROBERT ROSS, testified
he worked in close proximity to COSCO
FIRE employees disturbing asbestos-

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containing fireproofing. There is no
foundational showing that Mr. Crossley has
any personal knowledge or expertise to
support his statement that COSCO FIRE
was never retained to apply fireproofing.
There is no foundational showing that Mr.
Crossley has any personal knowledge or
expertise to support his statement that
COSCO FIRE never purchased fireproofing
in the course of its business, nor is there any
foundational showing that Mr. Crossley has
any personal knowledge or expertise to
support his statement that, “As far as [he]
know{s],” fireproofing became asbestos-
free in the early 1970s.

The Court should note that COSCO
FIRE, by admitting that “fireproofin
became asbestos-free in the very early
1970s,” it is conceding that fireproofing
contained asbestos before the “very early

1970s.”
COURT’S RULING ON OBJECTION NO. 1:
Dated: Sustained:
Overruled:

2. Objections to Paragraph 7 of the Declaration of James Crossley in Support of
Defendant Cosco Fire Protection, Inc.’s Motion for Summary Judgment, or in the
Alternative, Summary Adjudication (“Crossley Declaration”), which states: “I did
not learn that shooting studs for the purposes of installing hanger and support for
sprinkler pipe could create a hazard until the 1980s, when building specifications
began requiring contractors to take precautions regarding work with fireproofing.
Prior to that, we did not believe shooting studs for hanger and supports for the
sprinkler pipe could create a health hazard.”

Material Objected To: Grounds for Objection:
2. Crossley Declaration § 7. 2, This testimony lacks foundation and

competence, is speculative, states
unsupported legal conclusions, is irrelevant,
and immaterial, (Evid. Code §§ 210, 350,
403, 405, and 702.) It is not enough for the
affiant simply to state the affiant has
personal knowledge of the facts stated.
Rather, the declaration itself must contain
facts showing the declaration’s connection
with the matters stated therein, thereby
establishing the source of his or her
information. Otherwise, the declarant’s
testimony that he or she has such
knowledge is purely a conclusion.
(Osmond v. EWAP, Inc. (1984)

153 Cal.App.3d 842, 851; Brown & Weil,

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PLAINTIFFS' EVIDENTIARY OBJECTIONS TO DEFENDANT COSCO FIRE PROTECTION, INC.'S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY

10

Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) J 9:39, ch.
OI-B; and Evid. Code § 702.) Code of Civ.
Proc. § 437c(d) requires affidavits or
declarations in support of a motion for
summary judgment to be made on the basis
of “personal knowledge,” and not
information and belief. (Brown & Weil,
Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) §f] 9:60.8
and 10:114: and Code of Civ. Proc.

§ 437c(d).) “Declarations based on
information and belief are insufficient to
satisfy the burden of ... the moving ... party
on a motion for summary judgment....”
(emphasis added) (Lopez vy. University
Partners (1997) 54 Cal. Pp Ht 7,
1124.) Furthermore, an affidavit based on
“mformation and belief” is hearsay and
must be disregarded, and it is “unavailing
for any purpose.” (Star Motor Imports, Inc.
vy. Sup. Ct, (Shake) (1979) 88 Cal. App.3

There is no foundational showing
that Mr. Crossley has any personal
knowledge or expertise establishing that his
knowledge as to when COSCO FIRE
learned that shooting studs into fireproofing
created a health hazards. Mr. Crossley’s
declaration does not state that COSCO
FIRE did not learn that shooting studs was
hazardous until the 1980s. Rather, Mr.
Crossley states that, “J did not learn that
shooting studs...could create a hazard until
the 1980s...” [Emphasis added.] Mr.
Crossley’s personal knowledge of when he
learned that shooting studs into asbestos-
containing fireproofing was hazardous is
irrelevant to either prove or disprove any
facts involved in this case. Mr. Crossley
fails to provide any support that his
knowledge or lack of knowledge is
attributable to COSCO FIRE’s knowledge.
Tellingly, defendant fails to identify the
building specifications to which it is
referring. This statement is purely
conclusory and should, therefore, be
stricken.

COURT’S RULING ON OBJECTION NO. 2:

Dated: Sustained:
Overruled:
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3. Objections to Paragraph 8 of the Declaration of James Crossley in Support of
Defendant Cosco Fire Protection, Inc.’s Motion for Summary Judgment, or in the
Alternative, Summary Adjudication (“Crossley Declaration”), which states:
“Shooting studs for the purposes of installing hangers and supports for sprinkler
pipes created only a little bit of dust. During the 1970s, there was no reason for us
to believe that this action created a hazard for our sprinklefitters, much less for

any insulators working in the area.”

Material Objected To:
3. Crossley Declaration 8.

K:Alnjureds 592.405 ldiovid abjs-COSFIR-ingswpd

Grounds for Objection:

3. This testimony lacks foundation and
competence, is speculative, states
unsupported legal conclusions, is irrelevant,
and immaterial. (Evid. Code §§ 210, 350,
403, 405, and 702.) It is not enough for the
affiant simply to state the affiant has
personal knowledge of the facts stated.
Rather, the declaration itself must contain
facts showing the declaration’s connection
with the matters stated therein, thereby
establishing the source of his or her
information. Otherwise, the declarant’s
testimony that he or she has such
knowledge is purely a conclusion.
(Osmond v. EWAP, Inc, (1984)

153 Cal App.3d 842, 851; Brown & Weil,
Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) 4 9:59, ch.
OLB; and Evid. Code § 702.) Code of Civ.
Proc. § 437c(d) requires affidavits or
declarations in support of a motion for
summary judgment to be made on the basis
of “personal knowledge,” and not
information and belief. (Brown & Weil,
Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) {ff 9:60.8
and 10:114; and Code of Civ, Proc.

§ 437c(d).) “Declarations based on
information and belief are insufficient to
satisfy the burden of ... the moving ... party
on a motion for summary judgment...”
(emphasis added) (Lopez v. University
Partners (1997) 54 Cal. App.4th 1117,
1124.) Furthermore, an affidavit based on
“information and belief” is hearsay and
must be disregarded, and it is “unavailing
for any purpose.” (Star Motor Imports, Inc.
v. Sup. Ct. (Shake) (1979) 88 Cal_App.3d
201, 204.)

There is no foundational showing
that Mr. Crossley has any personal
knowledge or expertise pertaining the
amount of dust that is created when
sprinklerfitter scrape away asbestos-
containing fireproofing generally, nor is

PLAINTIFFS' EVIDEN’

IARY OBJECTIONS TO DEFENDANT COSCO FIRE PROTECTION, INC.'S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY

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there any foundational showing that Mr.
Crossley has any personal knowledge or
expertise regarding the amount of asbestos-
containing dust that was created when
COSCO FIRE sprinklerfitters scraped away
and disturbed asbestos-containing
fireproofing in ROBERT ROSS’s presence.
Nor does Mr. Crossley provide any
foundational showing supporting his claim
that “there was no reason” for him to
believe that the disturbance of asbestos did
not create a hazard; Mr. Crossley’s
declaration fails to say what documents or
records - if any - he reviewed to support this
claim.

Further, Mr. Crossley’s use of the
vague and ambiguous term “only a little bit
of dust” calls for a legal conclusion. As
such this term is misleading and prejudicial.
This statement is purely conclusory and
should, therefore, be stricken.

COURT'S RULING ON OBJECTION NO. 3:

Dated: Sustained:

Overruled:

4, Objections to Paragraph 9 of the Declaration of James Crossley in Support of
Defendant Cosco Fire Protection, Inc.’s Motion for Summary Judgment, or in the
Alternative, Summary Adjudication (“Crossley Declaration”), which states:
“During the 1970s, trades such as plumbers, HVAC workers, and electricians
would create much larger disturbances of fireproofing than that caused by the
shooting of studs for the purposes for installing hanger and supports for sprinkler
pipes. | am not aware that any of these trades took any precautions with respect to
disturbing fireproofing in the 1970s.”

Material Objected To: Grounds for Objection:
4. Crossley Declaration 9. 4, This testimony lacks foundation and

competence, is speculative, states
unsupported legal conclusions, is irrelevant,
and immaterial, (Evid. Code §§ 210, 350,
403, 405, and 702.) It is not enough for the
affiant simply to state the affiant has
personal knowledge of the facts stated.
Rather, the declaration itself must contain
facts showing the declaration’s connection
with the matters stated therein, thereby
establishing the source of his or her
information. Otherwise, the declarant’s
testimony that he or she has such
knowledge is purely a conclusion.
(Osmond v. EWAP, Inc. (1984)

153 Cal.App.3d 842, 851; Brown & Weil,

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10

Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) J 9:39, ch.
OI-B; and Evid. Code § 702.) Code of Civ.
Proc. § 437c(d) requires affidavits or
declarations in support of a motion for
summary judgment to be made on the basis
of “personal knowledge,” and not
information and belief. (Brown & Weil,
Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) §f] 9:60.8
and 10:114: and Code of Civ. Proc.

§ 437c(d).) “Declarations based on
information and belief are insufficient to
satisfy the burden of ... the moving ... party
on a motion for summary judgment....”
(emphasis added) (Lopez vy. University
Partners (1997) 54 Cal. Pp Ht 7,
1124.) Furthermore, an affidavit based on
“mformation and belief” is hearsay and
must be disregarded, and it is “unavailing
for any purpose.” (Star Motor Imports, Inc.
vy. Sup. Ct, (Shake) (1979) 88 Cal. App.3

1

Here, Mr. Crossley attempts to make
a qualitative comparison between the
amounts of asbestos Mr. ROSS would have
been exposed to by sprinklerfitters
disturbing asbestos versus other trades
disturbing asbestos. There is no indication
within the declaration that there exists any
admissible facts or evidence to consider
with regard to the opportunities for
exposure during Mr. ROSS’s work. Thus,
Mr. Crossley merely relies solely on
speculation and conjecture to opine on how
much asbestos Mr. ROSS would have been
exposed to during his career as an insulator.
Furthermore, Mr. Crossley’s declaration
does not state that COSCO FIRE was not
aware of any other trades taking precautions
against disturbing fireproofing in the 1970s.
Rather, Mr. Crossley states that, “/ am not
aware that any of these trades took any
precautions with respect to disturbing
fireproofing in the 1970s.” [Emphasis
added.] Mr. Crossley’s lack of knowledge
regarding precautions other trades took in
tegards to disturbed fireproofing in the
1970s is irrelevant to either prove or
disprove any facts involved in this case as
Mr. Crossley fails to provide any support
that his knowledge or lack of knowledge is
attributable to COSCO FIRE’s knowledge.
Further, Mr. Crossley’s use of the
vague and ambiguous term “much larger

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disturbances” calls for a legal conclusion
and speculation. As such this term is
misleading and prejudicial. This statement
is purely conclusory and should, therefore,

be stricken.
COURT'S RULING ON OBJECTION NO. 4:
Dated: Sustained:
Overruled:

5. Objections to Paragraph 10 of the Declaration of James Crossley in Support of
Defendant Cosco Fire Protection, Inc.’s Motion for Summary Judgment, or in the
Alternative, Summary Adjudication (“Crossley Declaration”), which states: “Iam
aware of not literature available for Cosco in the 1970s suggesting that the act of
shooting studs for the purposes of installing hangers and supports for sprinkler
pipes could create a hazardous condition for anyone in the area. No sprinklerfitter
organization in the 1970s warned that such actions might be hazardous. No
governmental regulation in the 1970s addressed the shooting of studs for the
purposes of installing hangers and supports for sprinkler pipes or any asbestos
hazards of sprinklerfitting. The government regulations that did exist regarding
asbestos in the 1970s concerned concentrations much higher than that caused by
the shooting of studs for the purposes of installing hangers and supports for
spinkler pipes.”

Material Objected To: Grounds for Objection:

5, Crossley Declaration 4 10. 5. This testimony lacks foundation and
competence, is speculative, states
unsupported legal conclusions, is irrelevant,
and immaterial. (Evid. Code §§ 210, 350,
403, 405, and 702.) It is not enough for the
affiant simply to state the affiant has
personal knowledge of the facts stated.
Rather, the declaration itself must contain
facts showing the declaration’s connection
with the matters stated therein, thereby
establishing the source of his or her
information, Otherwise, the declarant’s
testimony that he or she has such
knowledge is purely a conclusion.

Osmond v. EWAP, Inc, (1984)

153 Cal App.3d 842, 831; Brown & Weil,
Calif, Practice Guide: Civil Procedure
Before Trial (The Rutter Group) ¥ 9:59, ch.
DEB; and Evid. Code § 702.) Code of Civ.
Proc. § 437c(d) requires affidavits or
declarations in support of a motion for
summary judgment to be made on the basis
of “personal knowledge,” and not
information and belief. (Brown & Weil,
Calif, Practice Guide: Civil Procedure
Before Trial (The Rutter Group) 4 9:60.8
and 10:114; and Code of Civ. Proc.

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§ 437¢(d).) “Declarations based on
information and belief are insufficient to
satisfy the burden of ... the moving ... party
on a motion i for summary judgment...”
(emphasis added) (Lopez v. Universit
Partners (1997) 54 Cal App.4th 1117,
1124.) Furthermore, an affidavit based on

“information and belief” is hearsay and
must be disregarded, and it is “unavailing
for any purpose.” (Star Motor Imports, Inc,
vy. Sup. Ct. (Shake) (1979) 88 Cal. App. 3d
Mr, Crossley’s declaration does not
state that COSCO FIRE was not aware of
any literature available to it during the
970s regarding the hazards created when
asbestos-containing materials are disturbed.
Rather, Mr. Crossley states that, “Jam
aware of no literature available to Cosco in
the 1970s...” [Emphasis added.] Mr.
Crossley’s lack of awareness of relevant
literature is irrelevant to either prove or
disprove any facts involved in this case as
r. Crossley fails to provide any support
that his knowledge or lack of knowledge is
attributable to COSCO FIRE’s knowledge.
There is no foundational showing
that Mr. Crossley has any personal
nowledge or expertise pertaining to the
literature available to COSCO FIRE in the
1970s, nor does Mr. Crassley’s declaration
say what documents or records he reviewed
to support his statements. Moreover, Mr.
Crossley alleged without support that the
concentrations of asbestos-containing dust
that existed when COSCO FIRE employees
shot studs into ceilings was in lesser
amounts than the relevant government
regulations pertained. Mr. Crossley makes
this claim without providing the necessary
foundation that COSCO FIRE took any
samples regarding the amount of asbestos-
dust in the air whatsoever, Accordingly,
Mr. Crossly has no basis for making his
claim. This statement is purely conclusory
and should, therefore, be stricken.

COURT’S RULING ON OBJECTION NO. 5:

Dated: Sustained:
Overruled:

it

Mt

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6. Objections to Paragraph 11 of the Declaration of James Crossley in Support of
Defendant Cosco Fire Protection, Inc.’s Motion for Summary Judgment, or in the
Alternative, Summary Adjudication (“Crossley Declaration”), which states: “As
far as I am aware, not sprinklerfitter company in the 1970s took any precautions
regarding possible health hazards from shooting studs for the purposes of
installing hangers and supports for sprinkler pipes.”

Material Objected To: Grounds for Objection:
6. Crossley Declaration § 11. 6. This testimony lacks foundation and

competence, is speculative, states
unsupported legal conclusions, is irrelevant,
and immaterial, (Evid. Code §§ 210, 350,
403, 405, and 702.) It is not enough for the
affiant simply to state the affiant has
personal knowledge of the facts stated.
Rather, the declaration itself must contain
facts showing the declaration’s connection
with the matters stated therein, thereby
establishing the source of his or her
information. Otherwise, the declarant’s
testimony that he or she has such
Knowledge is purely a conclusion.

(Osmond v. EWAP, Ine. (1984)

153 Cal.App.3d 842, 851; Brown & Weil,
Calif, Practice Guide: Civil Procedure
Before Trial (The Rutter Group) ¥ 9:59, ch.
OB; and Evid. Code § 702.) Code of Civ.
Proc. § 437¢(d) requires affidavits or
declarations in support of a motion for
summary judgment to be made on the basis
of “personal Knowledge.” and not
information and belief. (Brown & Weil,
Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) $f 9:60.8
and 10:114; and Code of Civ. Proc.

§ 437c(d).) “Declarations based on
information and belief are insufficient to
satisfy the burden of ... the moving ... party
on a motion for summary judgment...”
(emphasis added) (Lopez v. University
Partners (1997) 54 Cal-App.4th 1117,
1124.) Furthermore, an affidavit based on
“information and belief” is hearsay and
must be disregarded, and it is “unavailing
for any purpose.” (Star Motor Imports, Inc.
vy. Sup. Ct. (Shake) (197 ‘al. Apo.
201, 204.)

There is no foundational showing
that Mr. Crossley has any personal
knowledge or expertise to state that no
sprinklerfitter company in the 1970s took
any precautions regarding health hazards
resultant from disturbing fireproofing when
performing their work. Mr. Crossley does

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not state what documents he is relying on, if
any, to support this statement. Additionally,
Mr. Crossley’s declaration docs not state
that COSCO FIRE was aware of no
sprinklerfitting company taking precautions
against disturbing asbestos-containing
fireproofing. Rather, Mr. Crossley states,
“As far as / am aware...” [Emphasis added.]
Mr. Crossley’s lack of awareness as to what
other sprinklerfitter companies may or may
not have done is irrelevant to either prove or
disprove any facts involved in this case as
Mr, Crossley fails to provide any support
that his knowledge or lack of knowledge is
attributable to COSCO FIRE’s knowledge.
As such, Mr. Crossley’s statement is purely
conclusory and should, therefore, be

stricken.
COURT’S RULING ON OBJECTION NO. 6:
Dated: Sustained:
Overruled:

7. Objections to Paragraph 12 of the Declaration of James Crossley in Support of
Defendant Cosco Fire Protection, Inc.’s Motion for Summary Judgment, or in the
Alternative, Summary Adjudication (“Crossley Declaration”), which states: “Cosco did
not provide hardhats with logos until the 1990s.”

Material Objected To: Grounds for Objection:
7, Crossley Declaration | 12. 7. This testimony lacks foundation and

competence, is speculative, states
unsupported legal conclusions, is irrelevant,
and immaterial. (Evid. Code §§ 210, 350,
403, 405, and 702.) It is not enough for the
affiant simply to state the affiant has
personal knowledge of the facts stated.
Rather, the declaration itself must contain
facts showing the declaration’s connection
with the matters stated therein, thereby
establishing the source of his or her
information. Otherwise, the declarant’s
testimony that he or she has such
knowledge is purely a conclusion.
(Osmond v. EWAP, Ine. (1984)

153 Cal.App.3d 842, 851; Brown & Weil,
Calif, Practice Guide: Civil Procedure
Before Trial (The Rutter Group) 9:59, ch.
OB; and Evid. Code § 702.) Code of Civ.
Proc. § 437c(d) requires affidavits or
declarations in support of a motion for
summary judgment to be made on the basis
of “personal knowledge,” and not

K Ninja 08-9 pl Covid obj COSEIR- ang wpe 12
PLAINTIFPS' EVIDENTIARY OBJECTIONS TO DEFENDANT COSCO FIRE PROTECTION, INC.S MOTION FOR SUMMARY,
JUDGMENT OR. IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY

10

information and belief. (Brown & Weil,
Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) {ff 9:60.8
and 10:114; and Code of Civ, Proc.

§ 437c(d).) “Declarations based on
information and belief are insufficient to
satisfy the burden of ... the moving ... party
on a motion for summary judgment...”
(emphasis added) (Lopez v. University
Partners (1997) 54 Cal App.4th 1117,
1124.) Furthermore, an affidavit based on
“information and belief” is hearsay and
must be disregarded, and it is “unavailing
for any purpose.” (Star Motor Imports, Inc.
v. Sup. Ct. (Shake) (1979) 88 Cal_App.3d
201, 204.)

There is no foundational showing
that Mr. Crossley has any personal
knowledge or expertise to state that
COSCO FIRE did not provide hardhats
with their logos until the 1990s. Mr.
Crossley does not state what documents or
information he is relying on, if any, to
support this statement. As such, it is purely
conclusory and should, therefore, be

stricken.
COURT’S RULING ON OBJECTION NO. 7:
Dated: Sustained:
Overruled:

8. Objections to Paragraph 13 of the Declaration of James Crossley in Support of
Defendant Cosco Fire Protection, Inc.’s Motion for Summary Judgment, or in the
Alternative, Summary Adjudication (“Crossley Declaration”), which states: “Cosco was a
very small outfit, especially in the early 1970s. Cosco would not have had the capability of
doing a hospital project until 1977 or later.”

Material Objected To: Grounds for Objection:
8. Crossley Declaration § 13. 8. This testimony lacks foundation and

competence, is speculative, states
unsupported legal conclusions, is irrelevant,
and immaterial. (Evid. Code §§ 210, 350,
403, 405, and 702.) It is not enough for the
affiant simply to state the affiant has
personal knowledge of the facts stated.
Rather, the declaration itself must contain
facts showing the declaration’s connection
with the matters stated therein, thereby
establishing the source of his or her
information. Otherwise, the declarant’s
testimony that he or she has such
knowledge is purely a conclusion.

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PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO DEFENDANT COSCO FIRE PROTECTION, INC.S MOTION FOR SUMMARY,
JUDGMENT OR. IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY

10

COURT’S RULING ON OBJECTION NO. 8:

Osmond v. EWAP, Inc. (1984)

153 Cal-App. ; Sol; Brown & Weil,
Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) 4 9:59, ch.
9O1-B; and Evid. Code § 702.) Code of Civ.
Proc. § 437c(d) requires affidavits or
declarations in support of a motion for
summary judgment to be made on the basis
of “personal knowledge,” and not
information and belief. (Brown & Weil,
Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) ff 9:60.8
and 10:114; and Code of Civ, Proc.

§ 437¢(d).) “Declarations based on
information and belief are insufficient to
satisfy the burden of ... the moving ... party
on a motion for summary judgment...”
(emphasis added) (Lopez v. University
Partners (1997) 54 Cal. App.4th 1117,
1124-) Furthermore, an affidavit based on
“information and belief” is hearsay and
must be disregarded, and it is “unavailing
for any purpose.” (Star Motor Imports, Inc.
vy. Sup. Ct. (Shake) (1979) 88 Cal App.3
201, 204.)

There is no foundational showing
that Mr. Petersen has any personal
knowledge or expertise pertaining the size
of COSCO FIRE in the early 1970s, nor its
capacity to perform work at a hospital. Mr.
Crossley does not state what documents he
is relying on, if any, to support this
statement. As such, it is purely conclusory
and should, therefore, be stricken.

Dated: Sustained:
Overruled:
Dated: July 10, 2012 BRAYTON*#PURCELL LLP

By: /s/Sarah N. Bendon

K:Alnjureds 592.405 ldiovid abjs-COSFIR-ingswpd

14

Sarah N. Bendon
Attorneys for Plaintiffs

PLAINTIFFS' EVIDEN’

OBJECTIONS TO DEFENDANT COSCO FIRE PROTECTION, INC'S MOTION FOR SUMMARY.

IARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION