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

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                                GABRIEL A. JACKSON, State Bar No. 98119
ANTHONY C. CHIOSSO, State Bar No, 209014
achiosso@jjr-law.com

TODD M. THACKER, State Bar No. 199506
tthacker@jjr-law.com

JACKSON JENKINS RENSTROM LLP

55 Francisco Street, 6th Floor

San Francisco, CA 94133

Tel: 415.982.3600

Fax: 415.982.3700

Attorneys for Defendant
COSCO FIRE PROTECTION, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

APR 19 2012

Clerk of the Court
BY: VANESSA WU
Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS AND JEAN ROSS,
Plaintiffs,
v.
C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit 1
attached to the Summary Complaint
herein; and DOES 1-8500,, et al.

Defendants.

Case No CGC-10-275731

SEPARATE STATEMENT IN SUPPORT OF
DEFENDANT COSCO FIRE PROTECTION, INC. 'S
MOTION FOR SUMMARY JUDGMENT AND/OR
SUMMARY ADJUDICATION

DATE:
TIME:
DEPT: 503
TRIAL: None
COMPLAINT FILED: 12/17/10

July 10, 2012
9:30 a.m.

Pursuant to Code of Civil Procedure section 437c(b), Defendant Cosco Fire Protection,

Inc. (hereinafter “Cosco”) submits this separate statement of undisputed material facts in

support of its motion for summary judgment:

MOVING PARTY’S UNDISPUTED MATERIAL
FACTS

1. Plaintiff has complained against Cosco for
contractor liability, loss of consortium, and
punitive damages. (Chiosso Decl., Exh. “A.”)

2. Cosco requested that Plaintiff identify each
fact supporting his contention that Cosco is

liable to him as alleged in his complaint and/or
supporting his contention that he was exposed

OPPOSING PARTY’S RESPONSE AND
SUPPORTING EVIDENCE1 i to asbestos-containing products disturbed by
Cosco. (Chiosso Decl., Exh. “E,” Special

2 }) interrogatory No. 2, p. 3:3-5; No. 5, p. 3:12-
14,)

3. In response, Plaintiff identifies four jobsites 3.
4 | at which he claims to have worked around

Cosco employees in the 1970s. Plaintiff adds

5 || further details and references his deposition

to support them, but the testimony at the

6 || citations he references has nothing to do with

any work around Cosco employees. (Chiosso

7 || Dect., Exh. “F,” Response to Special

interrogatory No. 2, p. 2:2-28.)

4, Cosco requested that Plaintiff identify each 4.
9 || site or location where he alleges exposure to
asbestos as a result of Cosco’s activities and

10 || the dates when the alleged exposures

occurred. (Chiosso Decl., Exh. “E,” Special

1 || Interrogatory Nos. 6-7, p. 3:15-21.)

2 | 5. Plaintiff identified: Highland Hospital in 5.
Oakland, CA, for one month on and off in the

13 1967-72 time period; UCSF Medical Center for
nine days in 1977 and four months, on and off,

4 |) inthe 1977-79 time period; and University of
California, Berkeley's Warren Hall for 2 weeks

5 | in 1979. (Chiosso Decl., Exh. “F,” Response to
Special Interrogatory Nos. 6-7, p. 9:16-10:25.)

6

6. Cosco requested that Plaintiff identify the 6.
7 || type of work or activity in which he was
engaged when he alleges exposure to asbestos
8 |) asaresult of Cosco’s activities. (Chiosso Decl.,
Exh. “E,” Special interrogatory No. 9, p. 3:26-
9 | 4:1)

20 | 7. Plaintiff responded that he worked as an 7.
insulator, working with asbestos-containing

21 | insulation products, on each of the projects

where he alleges seeing Cosco employees.

22 || (Chiosso Decl., Exh. “F,” Response to Special
Interrogatory No. 9, p. 11:5-12:7,}

8. Cosco requested that Plaintiff identify each 8.
24 | person with knowledge regarding each alleged
exposure for which he believes Cosco is

25 || responsible, and each and every fact relevant

to the alleged exposures known to those

26 | persons. (Chiosso Decl., Exh. “E,” Special
Interrogatory Nos. 12-13; 15-17, p. 4:9-19;

27 | 4:26-5:8.)

28 | 9. Plaintiff did not identify anyone otherthan 9.

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himself who might have knowledge regarding
any exposures for which Cosco might be
responsible. (Chiosso Decl., Exh. “F,”
Response to Special interrogatory Nos. 12-13;
15-17, p, 13:5-21; 14:6-28.)

10. Cosco also requested that Plaintiff identify 10.
every document relating to each alleged

exposure. . (Chiosso Decl., Exh. “E,” Special
Interrogatory No. 18, p. 5:9-17.)

11, Plaintiff was unable to identify any 11.
document showing either that Cosco was

present on any site or that sprinklerfitters

should have known that shooting studs for the
purpose of hanging supports and hangers

might be hazardous to anyone, much less

insulators working on asbestos-containing
materials in the area. (Chiosso Decl., Exh. “F,”
Response to Special Interrogatory No. 18, p.
15:1-16:24.)

12. Cosco requested that Plaintiff identify 12.
each fact supporting his allegation that Cosco
should be liable for punitive damages.

(Chiosso Decl., Exh. “E,” Special Interrogatory

No. 22, p. 6:3-5.)

13. Plaintiff was unable to provide any 13.
information responsive to this request.

(Chiosso Decl., Exh. “F,” Response to Special
Interrogatory No. 22, p. 18:1-7.

14. Plaintiff believes that he worked around 14.
Cosco employees at: Highland Hospital; UCSF
Medical Center; and University of California
Berkeley, Warren Hall. (Chiosso Decl., Exh.

“G,” p. 1371:9-18.)

15. Plaintiff worked at Highland Hospital from 15.
1967 to 1972 for around a total of one month,
when he was with Consolidated. (Chiosso
Decl., Exh. “G,” p. 1371:22-24; 1372:6-9.) He
worked at UCSF Medical Center from 1977-79
on an off for about four months total.
(Chiosso Decl., Exh. “G,” p. 1371:25-1372:5;
1388:7-15.} He also worked at USCF for nine
days in 1977. (Chiosso Decl., Exh. “G,” p.
1374:4-6.) He worked at UC Berkeley, Warren
Hall for a couple of weeks in 1979. (Chiosso
Decl., Exh. “G,” p. 1372:10-18.)

16. The only reason he associated any 16.
workers with Cosco at any of these jobsites is
that they had “Cosco” on their hardhats; he

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could not recall what they wore and did not
recall any logos on their clothes. (Chiosso
Decl., Exh. “G,” p. 1375:22-1376:18; p.
1389:21-1390:2; p. 1396:4-6; 1402:25-1403:2.)

17. Mr. Ross saw these workers that he
associated with Cosco installing sprinkler pipe.
(Chiosso Decl., Exh. “G,” p. 1377:24-25.) They
were right across from him on ladders, or
twenty feet away. (Chiosso Decl., Exh. “G,” p.
1376:21-1377:1.} He believes those
employees penetrated fireproofing, but
cannot estimate how many times that
occurred. (Chiosso Decl., Exh. “G,” p. 1378:21-
1379:9.)

18. Mr. Ross did not know the brand name or
manufacturer of the fireproofing these
employees penetrated. (Chiosso Deci., Exh.
“G,” p. 1379:17-20.)

19. He believes these employees exposed him
to asbestos by shooting studs into the ceilings
in order to hang sprinkler pipe. (Chiosso Decl.,
Exh. “G,” p. 1378:1-8; 1386:3-8.)

20, According to Mr. Ross, these employees
performed the same work each time he
observed them at the various jobsites.
(Chiosso Decl., Exh. “G,” p. 1390:19-1391:6; p.
1396:24-1397:4; p. 1404:4-9.)

21. Mr. Ross does not know who applied the
fireproofing at these jobsites. (Chiosso Decl.,
Exh. “G,” p. 1380:16-18; p. 1391:25-1392:5; p.
1397:20-25; p. 1405:4-8.}

22. Mr. Ross does not have any information
showing that Cosco knew the fireproofing they
disturbed contained asbestos; The Cosco
employees did not wear masks, although Mr.
Ross did. (Chiosso Decl., Exh. “G,” p, 1381:3-
1381:8; p. 1392:9-1392:14; p. 1398:7-19; p.
1405:19-1406:3.)

23. Mr. Ross was himself insulating pipe and
wrapping duct at these jobsites.

24, Laborers not employed by Cosco cleaned
up the fireproofing at these jobsites. (Chiosso
Decl., Exh. “G,” p.1382:6-13; p. 1393:1-15; p.
1399:13-24.)

25. Mr. Ross does not know when Cosco
learned the hazards of asbestos. (Chiosso

17.

18.

19.

20.

21.

22.

23.

24,

25.

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Decl., Exh. “G,” p. 1385:17-19,}

26. 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. Cosco never purchased fireproofing
as a part of its business. Fireproofing became
asbestos-free in the very early 1970s. (Chiosso
Decl., Exh. “H,” 416, p.2:9-12.}

27. Cosco did not learn that shooting studs for
the purposes of installing hanger and supports
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, Cosco did not believe shooting studs for
hanger and supports for the sprinkler pipe
could create a health hazard. (Chiosso Deci.,
Exh. “H,” 7, p.2:13-17.)

28. 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 Cosco to
believe that this action created a hazard for its
sprinklerfitters, much less for any insulators
working in the area. (Chiosso Deci., Exh. “H,”
98, p.2:18-20.)

29. 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 of installing hangers
and supports for sprinkler pipes. Cosco is not
aware that any of these trades took any
precautions with respect to disturbing
fireproofing in the 1970s. (Chiosso Deci., Exh.
“Hy? 49, p.2:21-24,)

30. Cosco is aware of no literature available 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 regulations 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

26.

27.

28.

29.

30.

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concerned concentrations much higher than
that caused by the shooting of studs for the
purposes of installing hangers and supports
for sprinkler pipes. (Chiosso Decl., Exh. “H,”
10, p.2:25 -3:4.)

31. Cosco is aware of no sprinklerfitter
company in the 1970s that took any
precautions regarding possible health hazards
from shooting studs for the purposes of
installing hangers and supports for sprinkler
pipes. (Chiosso Decl., Exh. “H,” 911, 9.3:5-7.)

32. Cosco did not provide hardhats with logos
until the 1990s. (Chiosso Decl., Exh. “H,” 912,
p.3:8.)

33, 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, (Chiosso Decl., Exh. “H,” 4113,
p.3:9-10.)

31.

32.

33.

Pursuant to Code of Civil Procedure section 437c(b), Cosco hereby submits this Separate

Statement of Undisputed Material Facts in support of its Motion for Summary Adjudication of

the following issues:

1. Issues One and Two: Summary Adjudication of Plaintiffs’ Causes of Action for
Contractor Liability and Loss of Consortium Are Proper, As They Cannot
Establish the Requisite Elements.

2. Cosco requested that Plaintiff identify each
fact supporting his contention that Cosco is
liable to him as alleged in his complaint and/or
supporting his contention that he was exposed
to asbestos-containing products disturbed by
Cosco. (Chiosso Decl., Exh. “E,” Special
Interrogatory No. 2, p. 3:3-5; No. 5, p. 3:12-
14.)

3. In response, Plaintiff identifies four jobsites
at which he claims to have worked around
Cosco employees in the 1970s. Plaintiff adds
further details and references his deposition
to support them, but the testimony at the
citations he references has nothing to do with
any work around Cosco employees. (Chiosso
Decl., Exh. “F,” Response to Special
Interrogatory No. 2, p. 2:2-28.}

4. Cosco requested that Plaintiff identify each
site or location where he alleges exposure to

2.

4.

6

OBJECTION TO STIPULATION OF HEARING BY COMMISSIONER1 | asbestos as a result of Cosco’s activities and
the dates when the alleged exposures

2 |) occurred. (Chiosso Decl., Exh. “E,” Special
Interrogatory Nos. 6-7, p. 3:15-21.)

5. Plaintiff identified: Highland Hospital in 5.
4 || Oakland, CA, for one month on and off in the
1967-72 time period; UCSF Medical Center for

5 ]| nine days in 1977 and four months, on and off,

in the 1977-79 time period; and University of

6 | California, Berkeley’s Warren Hall for 2 weeks

in 1979. (Chiosso Decl., Exh. “F,” Response to

7 || Special Interrogatory Nos. 6-7, p. 9:16-10:25.)

& |) 6. Cosco requested that Plaintiff identify the 6.
type of work or activity in which he was

9 || engaged when he alleges exposure to asbestos

as a result of Cosco’s activities. (Chiosso Decl.,

10 i) Exh. “E,” Special Interrogatory No. 9, p. 3:26-

4:1)

7. Plaintiff responded that he worked as an 7.
2 | insulator, working with asbestos-containing
insulation products, on each of the projects

13 | where he alleges seeing Cosco employees.
(Chiosso Decl., Exh. “F,” Response to Special

4 jj) tnterrogatory No. 9, p. 11:5-12:7,)

5 j) 8. Cosco requested that Plaintiffidentify each 8.

person with knowledge regarding each alleged

6 | exposure for which he believes Cosco is
responsible, and each and every fact relevant

7 || tothe alleged exposures known to those

persons. (Chiosso Decl., Exh. “E,” Special

8 | Interrogatory Nos. 12-13; 15-17, p. 4:9-19;

4:26-5:8.)

9. Plaintiff did not identify anyone otherthan 9.
20 | himself who might have knowledge regarding

any exposures for which Cosco might be

21 responsible. (Chiosso Decl., Exh. “F,”

Response to Special Interrogatory Nos. 12-13;

22 15-17, p. 13:5-21; 14:6-28.)

23 | 10. Cosco also requested that Plaintiff identify 10.
every document relating to each alleged

24 || exposure. . (Chiosso Decl., Exh. “E,” Special
Interrogatory No. 18, p. 5:9-17.)

11. Plaintiff was unable to identify any 11.
26 || document showing either that Cosco was

present on any site or that sprinklerfitters

27 | should have known that shooting studs for the
purpose of hanging supports and hangers

28 || might be hazardous to anyone, much less

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insulators working on asbestos-containing
materials in the area. (Chiosso Decl., Exh. “F,”
Response to Special Interrogatory No. 18, p.
15:1-16:24,)

12. Cosco requested that Plaintiff identify 12.
each fact supporting his allegation that Cosco
should be liable for punitive damages.

(Chiosso Decl., Exh. “E,” Special Interrogatory

No. 22, p. 6:3-5.)

13, Plaintiff was unable to provide any 13.
information responsive to this request.

(Chiosso Decl., Exh. “F,” Response to Special
Interrogatory No, 22, p. 18:1-7.

14. Plaintiff believes that he worked around 14.
Cosco employees at: Highland Hospital; UCSF
Medical Center; and University of California
Berkeley, Warren Hall. (Chiosso Decl., Exh.

“G,” p. 1371:9-18.)

15. Plaintiff worked at Highland Hospital from 15.
1967 to 1972 for around a total of one month,
when he was with Consolidated. (Chiosso
Decl., Exh. “G,” p. 1371:22-24; 1372:6-9.} He
worked at UCSF Medical Center from 1977-79
on an off for about four months total.
(Chiosso Decl., Exh. “G,” p. 1371:25-1372:5;
1388:7-15.) He also worked at USCF for nine
days in 1977. (Chiosso Decl., Exh. “G,” p.
1374:4-6.) He worked at UC Berkeley, Warren
Hall for a couple of weeks in 1979. (Chiosso
Decl., Exh. “G,” p. 1372:10-18.)

16. The only reason he associated any 16.
workers with Cosco at any of these jobsites is

that they had “Cosco” on their hardhats; he

could not recall what they wore and did not

recall any logos on their clothes. (Chiosso

Deci., Exh. “G,” p. 1375:22-1376:18; p.
1389:21-1390:2; p. 1396:4-6; 1402:25-1403:2.)

17. Mr. Ross saw these workers that he 17.
associated with Cosco installing sprinkler pipe.
(Chiosso Decl., Exh. “G,” p. 1377:24-25.) They

were right across from him on ladders, or

twenty feet away. (Chiosso Decl., Exh. “G,” p.
1376:21-1377:1.) He believes those

employees penetrated fireproofing, but

cannot estimate how many times that

occurred. (Chiosso Decl., Exh. “G,” p. 1378:21-
1379:9.)

18. Mr. Ross did not know the brandname or 18.
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manufacturer of the fireproofing these
employees penetrated. (Chiosso Deci., Exh,
“G,’ p. 1379:17-20.)

19, He believes these employees exposed him 19.
to asbestos by shooting studs into the ceilings

in order to hang sprinkler pipe. (Chiosso Decl.,

Exh. “G,” p. 1378:1-8; 1386:3-8.)

20. According to Mr. Ross, these employees 20.
performed the same work each time he

observed them at the various jobsites.

(Chiosso Decl., Exh. “G,” p. 1390:19-1391:6; p.
1396:24-1397:4; p, 1404:4-9.)

21. Mr. Ross does not know who applied the 21.
fireproofing at these jobsites. (Chiosso Decl.,

Exh. “G,” p. 1380:16-18; p. 1391:25-1392:5; p.
1397:20-25; p. 1405:4-8.}

22, Mr. Ross does not have any information 22.
showing that Cosco knew the fireproofing they
disturbed contained asbestos. (Chiosso Decl.,

Exh. “G,” p. 1381:3-1381:8; p. 1392:9-1392:14;

p. 1398:7-19; p. 1405:19-1406:3.)

23, The Cosco employees did not wear masks, 23.
although Mr. Ross did. (Chiosso Dect., Exh.

“G,” p. 1381:3-1381:8; p. 1392:9-1392:14; p.
1398:7-19; p. 1405:19-1406:3.)

24, Laborers not employed by Cosco cleaned = 24.
up the fireproofing at these jobsites. (Chiosso

Decl., Exh. “G,” p.1382:6-13; p. 1393:1-15; p.
1399:13-24.)

25. Mr. Ross does not know when Cosco 25.
learned the hazards of asbestos. (Chiosso
Decl., Exh. “G,” p. 1385:17-19.}

26. Fireproofing was applied by the 26.
fireproofing contractor. Cosco was never

retained to apply fireproofing and the

application of fireproofing was not part of our

job duties. Cosco never purchased fireproofing

as a part of its business. Fireproofing became
asbestos-free in the very early 1970s. (Chiosso
Decl., Exh. “H,” 46, p.2:9-12.}

27. Cosco did not learn that shooting studs for 27.
the purposes of installing hanger and supports

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

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that, Cosco did not believe shooting studs for
hanger and supports for the sprinkler pipe
could create a health hazard. (Chiosso Decl.,
Exh. “H,” 47, p.2:13-17.)

28. Shooting studs for the purposes of 28.
installing hangers and supports for sprinkler

pipes created only a little bit of dust. During

the 1970s, there was no reason for Cosco to

believe that this action created a hazard for its
sprinklerfitters, much less for any insulators
working in the area. (Chiosso Decl., Exh. “H,”

18, p.2:18-20.}

29. During the 1970s, trades such as 29.
plumbers, HVAC workers, and electricians

would create much larger disturbances of
fireproofing than that caused by the shooting

of studs for the purposes of installing hangers

and supports for sprinkler pipes. Cosco is not
aware that any of these trades took any
precautions with respect to disturbing

fireproofing in the 1970s. (Chiosso Decl., Exh.

“H,” 49, p.2:21-24.)

30. Cosco is aware of no literature available in 30.
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 regulations 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 sprinkler pipes. (Chiosso Decl., Exh. “H,”
110, p.2:25 -3:4.)

31. Cosco is aware of no sprinklerfitter 31.
company in the 1970s that took any

precautions regarding possible health hazards

from shooting studs for the purposes of

installing hangers anc supports for sprinkler

pipes. (Chiosso Decl., Exh. “H,” 911, p.3:5-7.)

32, Cosco did not provide hardhats with logos 32.

until the 1990s. (Chiosso Decl., Exh. “H,” 412,
p.3:8.)

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33, Cosco was a very small outfit, especially in 33.
the early 1970s. Cosco would not have had

the capability of doing a hospital project until

1977 or later. (Chiosso Decl., Exh. “H,” 913,

p.3:9-10.)
2. Issue Three: Summary Adjudication of Plaintiffs’ Claim for Punitive Damages is
Proper, As They Cannot Establish That Cosco Acted with the Malice, Fraud, or
Oppression Necessary to Justify Invocation of Such Damages.
MOVING PARTY’S UNDISPUTED MATERIAL OPPOSING PARTY’S RESPONSE AND
FACTS SUPPORTING EVIDENCE
12. Cosco requested that Plaintiff identify 12.

each fact supporting his allegation that Cosco
should be liable for punitive damages.
(Chiosso Decl., Exh. “E,” Special Interrogatory
No. 22, p. 6:3-5.)

13. Plaintiff was unable to provide any 13.
information responsive to this request.

(Chiosso Decl., Exh. “F,” Response to Special
interrogatory No. 22, p. 18:1-7.

22. Mr. Ross does not have any information 22.
showing that Cosco knew the fireproofing they
disturbed contained asbestos. (Chiosso Deci.,

Exh. “G,” p, 1381:3-1381:8; p. 1392:9-1392:14;

p. 1398:7-19; p. 1405:19-1406:3.)

25. Mr. Ross does not know when Cosco 25.
learned the hazards of asbestos. (Chiosso
Decl., Exh. “G,” p. 1385:17-19.}

27. Cosco did not learn that shooting studs for 27.
the purposes of installing hanger and supports

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, Cosco did not believe shooting studs for
hanger and supports for the sprinkler pipe

could create a health hazard. (Chiosso Decl.,

Exh. “H,” 47, p.2:13-17.)

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Dated: April 19, 2012 JACKSON JENKINS RENSTROM LLP

By: /s/ ANTHONY C. CHIOSSO.

ANTHONY C. CHIOSSO.
Attorneys for Defendant
COSCO FIRE PROTECTION, INC.

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