Motion-Secondary: 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

JACKSON JENKINS RENSTROM LLP ELECTRONICALLY

55 Francisco Street, 6th Floor FILED

San Francisco, CA 94133 Superior Court of California,

Tel: 415.982.3600 County of San Francisco

Fax: 415.982.3700 FEB 06 2012
Clerk of the Court

Attorneys for Defendant BY: ALISON AGBAY

COSCO FIRE PROTECTION, INC. Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS AND JEAN ROSS, Case No CGC-10-275731
Plaintiffs, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF DEFENDANT
v. COSCO FIRE PROTECTION, INC. 'S MOTION
FOR SUMMARY JUDGMENT AND/OR
C.C. MOORE & CO, ENGINEERS; SUMMARY ADJUDICATION
Defendants as Reflected on Exhibit 1
attached to the Summary Complaint DATE: March 20, 2012
herein; and DOES 1-8500., et al. TIME: 9:30 a.m.
DEPT: 503
Defendants. TRIAL: May 21, 2012

Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
JudgmentA.
8.

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TABLE OF CONTENTS

PLAINTIFFS’ CLAIM FOR CONTRACTOR LIABILITY

NO INFORMATION WAS AVAILABLE TO SPRINKLERFITTERS IN THE 1970s
INDICATING THAT SHOOTING STUDS FOR THE PRUPOSES OF INSTALLING
HANGERS WAS A HEAZARDOUS ACTIVITY vsscsessssesssnessstensenensseseereenessesigasseenseesscepeee 5

LEGAL ARGUMENT ..........:csssscssessssesessescesnesssnatsonsssnesncsssseesseserneneeacansngnessenseaceieassaenenneaseasee 7

A.

COSCO'S PRESENTATION OF AFFIRMATIVE EVIDENCE AND SHOWING OF
PLAINTIFFS’ FACTUALLY DEVOID DISCOVERY RESPONSES REQUIRES

PLAINTIFFS TO ESTABLISH A TRIABLE ISSUE OF FACT IF THEY WISH TO

AVOID SUMMARY JUDGMENT.........cccccssesssseessrsseesenessersneeseseeneseereneesearessanenceresesenses 7

PLAINTIFFS DO NOT HAVE SUFFICIENT EVIDENCE TO SHOW THAT THE
SPRINKLERFITTERS MR. ROSS BELIEVES WERE EMPLOYED BY COSCO WERE
ACTUALLY EMPLOYED BY COSCO........scscssssesssssseesenesssrsseeecsneeesesteneeseasessnneseetenesenees 8g

COSCO IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’
NEGLIGENCE CLAIM BECAUSE IT HAD NO DUTY TO ROBERT ROSS...

1. The Existence of a Duty is a Question of Law for this Court..
2. Cosco Had No Duty to Prevent Robert Ross’ Unforeseeable Injuries......... 9

COSCO'S ACTIONS WERE NOT A "SUBSTANTIAL FACTOR" IN THE DEVELOPEMTN
OF MR. ROSS' ILLNESS... sotesenetes sore dD

PLAINTIFFS HAVE NOT PROVIDED ANY EVIDENCE SHOWING THAT THEY ARE
ENTITLED TO PUNITIVE DAMAGES IN THIS

ACTION. soe dd

ICONCLUSION .......eseecsessesscsssssessesnssenssenseceesseansatsnnesenesiqssneeneacsesneasengenqacnssnenneactensseeeceneneess 16TABLE OF AUTHORITIES
Page

Cases
Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.Ath 826 ...cccssscssssssssssssssssesessececeseecessssssstsssssessesssecsensssserssassssssesssvasvsssessnvasarvsenesseceees 7
Bell v. Sharp Cabrillo Hosp.

(1989) 212 Cal. App.3d 1034, 1044..........ssssssssssssssssssssvsssscesssseeesssssssssssssssesssssvvsssvssssassseseveeseeseees 14
Chaknova v. Wilbur Ellis Company

(1999) 69 Cal App.4th 962 ...cecccssssccsssssssscscossssssssssseesssssssssssssssnecssssssraseessseseetessseteenseetssestsseaseesesss 7

College Hosp., Inc. v. Super.Ct. (Crowell)
(1994) 8 Cal.4th 704
Dumin v. Qwens-Corning
(1994) 28 Cal.App.4th
Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co.
(1986) 185 Cal.App.3d 1149, 1155
Hoch v, Allied-Signal, Inc./Ben
(1994) 24 Cal.App.4th 48.......
Hunter v. Pacific Mechanical Corp.
(1995) 37 Cal.App.4th 1282 ...
Jacobs v. Fire Insurance Exchange

(1995) 36 Cal App.4th 1258 oo. sccssssessssssscececesseeseessstesessscssssessesesseesssnsssseceeessrerseseususserscaeesece 7
Lineaweaver v. Plant Insulation Company
(1995) 31 CalADp.4th ....scsscssesssssssssessssssssssssssssssceeesessesssssssssssesessssecssessssssecsssssessesssseensssssasssenevase 12

McGonnell v. Kaiser Gypsum Company, Inc., et al.
{2002} 98 Cal.App.4th 1098
Richardson v. Employers Liability Assur. Corp.

(1972) 25 Cal.App.3d 232, 102 Cal.Rptr. 547 ..ccccsssssssssssssssesesescsssssensssssssssssssssssssssssssnsensasssenssess 15
Rutherford v. Owens-lllinois, Inc.

(1997) 16 CAlAth....ccsssssssesssssssssssseecesesesssssssnnssssnsssssssssssessseeseseessssstssasseressevvensrmsseeensenseesesees 12, 13
Taylor v. Super.Ct. (Stille)

(1979) 24 Cal. 3d 890, 157 Cal. Rptr. 693 ....cesscesssssessescseseessessecoeeserssssesserssessuesssesssneesserscsaeessees 15

Tibbs v. Great American ins. Co.
(9th Cir. 1985) 755 F.2d 1370.
Union Bank v. Superior Court
(1995) 31 Cal. App.4th 573 o....scccccssseecssssssssesssssecsssssessssssssssevsessssscssssvsessnescesessaseceseesssuveserssusessaneees 7
Villa v, McFerren
(1995) 35 Cal.App.4th 733 vocccccccccsssssssessessessessssssesssssssssecssessssssssesssssssseesecesssnssensssseeteesasenetteseers 7
Weisman v. Blue Shield
(1984) 163 Cal.App.3d 61, 209 Cal.Rptr. 169.....sssecccssesssssssscssssesssssesssssssvssecsaseessssssseseeessasecsnesces 15

Statutes
CCP §437c....

CCP §437c(p)(2).
Civ. Code § 3294Co Oe ND HW BF WwW YN =

RNR YN YN NR YD DY HB eB Se Be ee a ee
ey GF WF Oo NY =F SB & IAN AH BF YW NY EF oO

I.
INTRODUCTION

Plaintiffs claim that Cosco, a sprinklerfitting contractor that never used asbestos-
containing products, is liable for plaintiff Robert Ross’ asbestos-related injuries. According to
Plaintiffs, these injuries resulted in part from exposure to asbestos-containing fireproofing Cosco
employees disturbed when they shot studs into the ceiling area around Mr. Ross while he was
performing insulation work.

To establish their case against Cosco, Plaintiffs must show three things: a) that the
sprinklerfitters Mr. Ross saw were actually employed by Cosco; b) that the Cosco employees
acted negligently; and c) that this negligence was a substantial factor in the development of Mr.
Ross’ disease.

Mr. Ross’ method of identifying Cosco employees is problematic. Mr. Ross claims to
have worked around Cosco employees at three different jobsites over an aggregate period of
several weeks in the 1970s, but the only reason he believes these employees worked for Cosco
is because they wore hardhats emblazoned with the word “Cosco.” He did not see any other
indication that these employees worked for Cosco. He did not see trucks. He did not see any
indications on their uniforms. He just saw the hardhats.

Cosco employees did not begin wearing company-logo hardhats until the 1990s.
Whoever the hardhat-wearing sprinklerfitters Mr. Ross saw in the 1970s were, they were not
employed by Cosco.

Mr. Ross claims that he saw these hardhat-wearing sprinklerfitters working at Highland
Hospital in the early 1970s. But Cosco did was a very small company in the early 1970s; it did
not have the capability to perform jobs on a hospital scale until, at the earliest, 1977. Again, the
sprinklerfitters Mr. Ross observed at these jobsites must have been employed by a company
other than Cosco; Cosco simply did not have the capability to be the sprinklerfitting contractor
at this jobsite.

Even if Mr. Ross could establish that Cosco employed these sprinklerfitters, he cannot

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Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
Judgmentwa

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make a showing of negligence without establishing that: a) Cosco knew it was disturbing
asbestos-containing fireproofing and b) either had actual knowledge of the dangers of
paraoccupational asbestos exposure or should have known that such exposure was dangerous.

The information available during the time period that Mr. Ross allegedly worked around
Cosco employees did not allow Cosco to foresee any injury from asbestos to its own workers as
a result of its sprinklerfitting activities, much less to an insulator working in the vicinity. Cosco
never used any asbestos-containing products as part of its sprinklerfitting work. Neither did it
have any knowledge that the work it performed could in any way result in a hazardous level of
asbestos exposure, much less a hazardous level of asbestos exposure to an insulator working
directly with asbestos-containing insulation somewhere in the vicinity of Cosco’s employees.

California does not impose any duty on contractors in a situation where an injury is not
foreseeable. Cosco did not actively seek to harm Mr. Ross; it did not use asbestos-containing
materials and did not even realize Mr. Ross could be harmed by its activities in his vicinity. The
burden to contractors should liability be imposed on these facts is immense, as it would require
every contractor (no matter how small) to become an expert in the dangers of any and all
materials used by any contractor in the vicinity, and institute stringent, costly, and possibly
unnecessary safeguards without a firm scientific showing that a risk existed. The costs to the
community would be large; contractors would have to divert significant resources to gain and
constantly update such expertise.

Plaintiffs do not have any evidence that Cosco’s activity was a “substantial factor” in the
development of Mr. Ross’ illness. Cosco shot studs into ceiling areas at interval in order to hang
sprinkler pipe. Again, Cosco did not use any asbestos-containing material; at most it slightly
disturbed whatever fireproofing might have existed in the area where it shot the studs. But
stud-shooting is not a dusty process, and does not need to be done very often. Plaintiffs have
no evidence that shooting studs around a mask-wearing insulator who is himself working
directly with asbestos-containing insulation could have provided a threshold exposure to a
hazardous level of asbestos, much less that a few weeks of such exposure could be a

“substantial factor” in the development of a carger insulator’s asbestos-related disease,

Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
JudgmentSo Oo we SN DN HR BR YD

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Finally, Plaintiffs have requested punitive damages against Cosco. But Plaintiffs have
failed to even properly plead the requisite “fraud, malice, or oppression” the Civil Code requires
for the imposition of such damages, much less provide any evidence that Cosco has engaged in
such conduct. Cosco respectfully requests that this Court grant its motion for summary
judgment or, in the alternative, summary adjudication of the issues.

Ik
FACTUAL BACKGROUND

Plaintiffs complained against Cosco for contractor liability, loss of consortium, and
punitive damages. (UMF No. 1.) Cosco subsequently sought, through written discovery and
deposition, any evidence Plaintiffs might have showing that Casco should be held liable for Mr.
Ross’ exposure to asbestos-containing product. Plaintiff was unable to provide any such
evidence. In fact, Plaintiffs deposition testimony and discovery responses suggest he has no
such evidence and that Cosco should correspondingly be dismissed from this litigation.

A. Plaintiffs’ Claim for Contractor Liability

Cosco requested that Plaintiffs identify each fact supporting their contention that Cosco
should be liable to him as alleged in his complaint and/or supporting his contention that he was
exposed to asbestos-containing products disturbed by Cosco. (UMF No. 2.) In response,
Plaintiffs identifies four jobsites at which Mr. Ross claims to have worked around Cosco
employees in the 1970s. Plaintiffs added further details and referenced Mr. Ross’ deposition to
support them, but the testimony at the citations they reference has nothing to do with any work
around Cosco employees. (UMF No. 3.)

in his deposition, Mr. Ross testified that he worked around Cosco employees at Highland
Hospital from 1967 to 1972 for around a total of one month, when he was with Consolidated.
He worked at UCSF Medical Center from 1977-79 on an off for about four months total. He also
worked at USCF for nine days in 1977. He worked at UC Berkeley’s Warren Hall for a couple of
weeks in 1979. (UMF No. 15.) 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. (UMF

No. 33.)
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Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
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The only reason Mr. Ross associated any 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. (UMF No. 16.) But these could not have been Cosco employees;
Cosco did not provide hardhats with logos to its employees until the 1990s. (UMF No. 32.)

Cosco requested that Plaintiffs identify the type of work or activity in which Mr. Ross was
engaged when he alleges exposure to asbestos as a result of Cosco’s activities. (UMF No. 6.)
Plaintiffs responded that Mr. Ross worked as an insulator, installing and removing asbestos-
containing insulation products, on each of the projects where he alleged seeing Cosco
employees. (UMF No. 7.) Mr. Ross testified that he insulated pipe and wrapped duct at these
jobsites. (UMF No. 23.)

Mr. Ross saw workers that he associated with Cosco installing sprinkler pipe. They were
right across from him on ladders, around twenty feet away. He believes those employees
penetrated fireproofing, but cannot estimate how many times that occurred. (UMF No. 17.)
Mr. Ross did not know the brand name or manufacturer of the fireproofing these employees
penetrated. (UMF No. 18.) He believes these employees exposed him to asbestos by shooting
studs into the ceilings in order to hang sprinkler pipe. (UMF No. 19.) According to Mr. Ross,
these employees performed the same work each time he observed them at the various jobsites.
(UMF No. 20.) Laborers not employed by Cosco cleaned up the fireproofing at these jobsites.
(UME No. 24.)

Mr. Ross does not know who applied the fireproofing at these jobsites. (UMF No. 21.)
Mr. Ross does not have any information showing that Cosco knew the fireproofing its employees
disturbed contained asbestos; the Cosco employees did not wear masks, although Mr. Ross did.
(UMF No. 22.) Mr. Ross does not know when Cosco learned the hazards of asbestos. (UMF No.
25.)

Fireproofing was applied by the fireproofing contractor. Cosco was never retained to
apply fireproofing and the application of fireproofing was not part of its job duties. Cosco never
purchased fireproofing as a part of its business. Fireproofing became asbestos-free in the very

early 1970s. (UMF No. 26.) 4

Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protectian, Inc.'s Motion for Summary
JudgmentNY DH WA FF BN

Cosco requested that Plaintiff identify each person with knowledge regarding each
alleged exposure for which he believes Cosco is responsible, and each and every fact relevant to
the alleged exposures known to those persons. (UMF No. 8.) Plaintiff did not identify anyone
other than himself who might have knowledge regarding any exposures for which Cosco might
be responsible. (UMF No. 9.)

Cosco also requested that Plaintiff identify every document relating to each alleged
exposure. (UMF No. 10.) Plaintiff was unable to identify any 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. (UMF No. 11.) While Plaintiffs
referenced several federal regulations, the earliest of these regulations was promulgated in
1986; they have little to say about whether Cosco should have considered its sprinklerfitting

activities hazardous in the 1970s.

B. No Information Was Available to Sprinklerfitters in the 1970s Indicating That Shooting
Studs for the Purposes of Installing Hangers Was a Hazardous Activity

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. (UMF No. 27.)

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. (UMF No. 28.)

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. (UMF
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Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
JudgmentWw w WN

No. 29.)

Casco 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 concerned concentrations much higher than that caused by the shooting
of studs for the purposes of installing hangers and supports for sprinkler pipes. (UMF No. 30.)

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. (UMF No. 31.} In short, Cosco’s actions were not those of a
negligent sprinklerfitter.

Cc Cosco Should Not Be Held Liable for Punitive Damages

Cosco requested that Plaintiff identify each fact supporting his allegation that Cosco
should be liable for punitive damages. (UMF No. 12.) Plaintiff was unable to provide any
information responsive to this request. (UMF No. 13.) Mr, Ross does not have any information
showing that Cosco knew the fireproofing they disturbed contained asbestos. (UMF No. 22.) Mr.
Ross does not know when Cosco learned the hazards of asbestos. (UMF No. 25.) Plaintiffs have
provided no evidence showing that Cosco ever acted in a malicious, oppressive, or fraudulent
manner towards them.

Cosco has presented affirmative evidence showing that it is not liable for Mr. Ross’
injuries. Cosco has also continually attempted to ascertain the facts supporting Plaintiffs’ claims
against Cosco. Plaintiffs have, despite ample opportunity to do so, failed to provide any such
facts, This shifts the burden to Plaintiffs and, absent their showing of a prima facie case, entitles

Cosco to summary judgment.

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Memorandum of Points & Authorities in Support af Defendant Cosco Fire Protection, Inc.’s Motion for Summary
Judgment- WN

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LEGAL ARGUMENT

A. Cosco’s Presentation of Affirmative Evidence and Showing of Plaintiffs’ Factually
Devoid Discovery Responses Requires Plaintiffs to Establish a Triable Issue of Fact if
They Wish to Avoid Summary Judgment

“Any party may move for summary judgment in any action or proceeding if it is
contended that the action has no merit or that there is no defense to the action or proceeding.”
{Cal. Civ. Proc., § 437c, subd. (a).) Summary judgment provides courts with a mechanism to
determine whether, despite the parties’ allegations, trial is necessary to resolve a dispute.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Motions for summary judgment
shall be granted if the undisputed facts establish that the moving party is entitled to judgment
as a matter of law. (V/acobs v. Fire Insurance Exchange (1995} 36 Cal.App.4th 1258, 1268; Cal.
Civ. Proc., §437¢, sudb. (c).} Alternatively, the Court may grant summary adjudication on any
meritless cause of action or claim for damages. (Cal. Civ. Proc., §437c, subd. (f)(1).)

Section 437c requires the moving party to make an initial prima facie showing that the
material facts upon which its motion relies are undisputed. (Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at 851). A defendant may meet this requirement by showing that plaintiffs
cannot establish one or more elements of their causes of action. (McGonnell v. Kaiser Gypsum
Company, Inc., et al, (2002) 98 Cal.App.4th 1098, 1103-1104.)

A defendant need not produce affirmative evidence negating a cause of action to
succeed on summary judgment; it may also show the absence of evidence supporting plaintiffs’
claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590; Villa v. McFerren (1995) 35
Cal.App.4th 733, 748-749; Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1286-
1288.) A defendant can show such an absence through plaintiffs’ factually-devoid discovery
responses, as in Union Bank, or in the form of deposition testimony, as in Hunter and Chaknova
v. Wilbur Ellis Company (1999) 69 Cal.App.4th 962. Once such a showing is made, plaintiffs bear
the burden of setting forth specific facts showing that a triable issue of material fact exists. (Cal.
Civ. Proc., §437c, subd. (p)(2).)

In this matter, as set forth infra, Cosco has set forth affirmative evidence showing that it

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Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.'s Motion for Summary
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had no duty to Mr. Ross under the factual circumstances of this case because his injuries were
unforeseeable. Cosco has also shown that Plaintiffs have no evidence it ever acted toward them
in a malicious, oppressive, or fraudulent fashion. As a result, the burden now shifts to Plaintiffs

to set forth triable issues of material fact supporting their claims against Cosco.

B. Plaintiffs Do Not Have Sufficient Evidence to Show that the Sprinklerfitters Mr. Ross
Believes Were Employed By Cosco Were Actually Employed By Cosco

Mr. Ross’ sole reason for believing he worked around Cosco sprinklerfitters in the 1970s
is that he saw those sprinklerfitters wearing hardhats with the word “Cosco” on them. (UMF
No. 16.) Mr. Ross did not see any trucks, or uniforms, or anything else suggesting that these
sprinklerfitters were actually employed by Cosco. This is unsurprising, because these
sprinklerfitters could not have been employed by Cosco. Cosco did not begin issuing logo-
embossed hardhats to its employees until the 1990s. (UMF No. 32.) Whoever these employees
were, their hardhats could not have been issued by Cosco, removing the entire basis for Mr.
Ross’ identification of these sprinklerfitters as Cosco employees.

Not only that, but the sprinklerfitters Mr. Ross identified at Highland Hospital during the
1967-72 time period could not have been employed by Cosco. (See UMF No. 15.) Cosco was an
extremely small company in the early 1970s; it simply did not have the capability of performing
hospital level work until, at the earliest, 1977. (UMF No. 33.)

Mr. Ross has no direct evidence that the sprinklerfitters he observed were employed by
Cosco; he is simply making an inference from the hardhats he observed. But these hardhats are
the very epitome of hearsay testimony; Mr. Ross wishes this Court to accept the hardhats as a
definitive proclamation of their wearers’ employer. As we have seen, these hardhats could not
have been supplied by Cosco, and Cosco simply did not have the resources to perform at least
one of the jobs where Mr. Ross saw these hardhat-wearing sprinklerfitters. The evidence
suggests that these sprinklerfitters were employed by some other company, and that Cosco is

entitled to summary judgment of Plaintiffs’ claims.

c Cosco is Entitled to Summary Judgment on Plaintiffs’ Negligence Claim Because it Had
No Duty to Robert Ross

1. The Existence of a Duty is a Question of Law for this Court

Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
JudgmentThe “foreseeability” concept plays a variety of roles in tort doctrine generally; in some
contexts it is a question of fact for the jury, whereas in other contexts it is part of the calculus to
which a court looks in defining the boundaries of “duty.” (Ballard v. Uribe (1986) 41 Cal.3d 564,
572, fn. 6.; see also Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515-516 [holding that a
landowner’s duty of care to third parties is a question of law for the Court].) In other words,
“while it is the province of the jury ... to determine whether an unreasonable risk of harm was
foreseeable under the particular facts of a given case, the trial court must still decide as a matter
of law whether there was duty in the first place, even if that determination includes a
consideration of foreseeability.” (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1078.)
This Court must therefore determine, as a matter of law, whether Cosco owed Mr. Ross a duty
of care under the factual circumstances presented in this case.

2. Cosco Had No Duty to Prevent Robert Ross’ Unforeseeable Injuries

Imposition of a duty depends on the numerous factors: 1) foreseeability of harm to the
plaintiff; 2) the degree of certainty that the plaintiff suffered injury; 3) the closeness of the
connection between the defendant's conduct and the injury suffered; 4) the moral blame
attached to the defendant's conduct; 5) the policy of preventing future harm; 6) the extent of
the burden to the defendant and consequences to the community of imposing a duty to exercise
care with resulting liability for breach; and 7) the availability, cost, and prevalence of insurance
for the risk involved. (Rowland v. Christian (1968) 69 Cal.2d 108, 118-19. See also Morris v. De
La Torre (2005) 36 Cal. 4th 260, 276.) Foreseeability, alone, does not establish a duty.
(Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 407.) But if the harm is not
foreseeable, there can be no duty. (Rowland, supra, 69 Cal.2d at 113.)

Foreseeability will support a finding of duty only if it is reasonable. (Juarez v. Boy Scouts
of America, Inc. (2000) 81 Cal.App.4th 377, 402.) By invoking a subjective reasonableness
standard, the courts bring imposition of duty in line with practical conduct. The reasonableness
standard is a test determining if, in the opinion of a court, the degree of foreseeability is high
enough to charge the defendant with the duty to act. (Sturgeon v. Curnutt (1994) 29 Cal.App.4th

301, 307-308). An injury is only reasonably foregeeable if it is likely enough in the setting of

Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.'s Motion for Summary
Judgment27

modern life that a reasonably thoughtful [person] would take account of it in guiding practical
conduct." (Bigbee v. Pacific Tel. & Tel. Co. (1983} 34 Cal. 3d 49, 57 [quoting 2 Harper & James,
Law of Torts (1956) § 18.2, p. 1020, brackets in original].)

On a clear day, you can foresee forever. (Thing v. La Chusa (1989) 48 Cal. 3d 644, 668
[attributing the thought to Bernard E. Witkin, Esq.].) It is possible to foresee that a person far
removed might suffer an injury from some toxic substance used on a jobsite. “It is also possible
heavy rainfall will cause the Sacramento and American Rivers to inundate Sacramento. Yet,
[people] continue to visit shopping centers and live and work [there]. Objective foreseeability
(the logical opposite only of impossibility) is tempered by subjective reasonableness, both in our
everyday decisions as individuals and in the decisions of the courts concerning duty.” (Sturgeon,
supra, 29 Cal.App.4th at 307.)

Cosco has presented affirmative evidence that it did not know and had no reason to
know that its work could possibly have injured Mr. Ross. 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 nat believe shooting studs for hanger
and supports for the sprinkler pipe could create a health hazard. (UMF No. 27.)

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. (UMF No. 28.)

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. (UMF
No. 29.)

Cosco is aware of no literature available in the 1970s suggesting that the act of shooting

28 | studs for the purposes of installing hangers and supports for sprinkler pipes could create a

Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
Judgmentwa

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. (UMF No. 30.)

Casco 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. (UMF No. 31.)

On the other hand, Plaintiffs have no evidence that Cosca had any knowledge in the
1970s that its sprinklerfitting activities might be hazardous . (UMF Nos. 2-3, 21-23, 25.) Nor
have Plaintiffs offered evidence to establish that Cosco “should have known” of such dangers.
(UMF Nos. 2-3, 10-11.) While Plaintiffs referenced several federal regulations, the earliest of
these regulations was promulgated in 1986; they have little to say about whether Cosco should
have considered its sprinklerfitting activities hazardous in the 1970s.

If Cosco could not have foreseen Decedent's injury, which under these facts it clearly
could not, it did not owe her a duty, and therefore cannot be liable for negligence. There is no

need for this Court to engage in any further determination. (Rowland, supra, 69 Cal.2d at 113.)

D. Cosco’s Actions Were Not a “Substantial Factor” In the Development of Mr. Ross’
Illness

Plaintiffs have not provided any admissible evidence, in response to comprehensive
discovery requests, that he was ever exposed to asbestos as a result of Cosco’s actions. His only
real allegation is that sprinklerfitters employed by Cosco shot studs into ceilings in his vicinity,
which might have (or might not have) disturbed fireproofing. There is no admissible evidence
that the materials disturbed actually contained asbestos, or that if it did it could possibly be a
“substantial factor” in the development of Mr. Ross’ alleged injury.

It is undisputed that Mr. Ross was himself installing asbestos-containing insulation at the

jobsites where he allegedly observed Cosco employees. Mr. Ross was also wearing a mask or
11

Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
Judgmentrespirator during each of the time periods when he worked around Cosco employees. Mr. Ross
was therefore breathing asbestos-containing dust from the very insulation he himself was
installing. When one considers that Mr. Ross’ entire career consisted of insulation work with
asbestos-containing products, it is difficult to see how the limited time he spent around Cosco
employees, who were not using any asbestos-containing materials whatsoever, could be a
“substantial factor” in contributing to his disease.

Plaintiffs’ evidence is not sufficient to impose liability on Cosco. According to the
California Supreme Court, it is the plaintiffs burden in any asbestos personal injury action to
plead and prove the essential element of “causation” in order to prevail thereon. (Rutherford v.
Owens-Hlinois, inc. (1997) 16 Cal.4th 953, 968.) In order to satisfy this burden of proving
“causation,” plaintiff must “first establish some threshold exposure.” (/d. at 982.) If “threshold
exposure” is established, it is then plaintiffs burden to establish that the exposure was a
“substantial factor” in creating the risk for contracting the disease that plaintiff alleges. (/bid.} In
other words, a plaintiff must preliminarily establish (i.e. produce evidence) that he/she was at
least exposed to asbestos through that defendant's activities in order to prove causation.
{McGonnell v. Kaiser Gypsum Company, Inc. (2002) 98 Cal.App.4th 1098, 1103; Dumin v. Owens-
Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650.) If plaintiff cannot produce such evidence,
then no causation exists and plaintiff's claims against that defendant fail as a matter of law.
(McGonnell v. Kaiser Gypsum Company, Inc., supra, at 1103; Dumin v. Qwens-Corning Fiberglas
Corp., supra, at 655.)

Although the Rutherford court did not expand on what satisfied “threshold exposure” to
a defective asbestos-containing product, it did note that existing California cases had already
addressed the matter. (Rutherford v. Owens-illinois, supra, 16 Cal.4th at 968.) One such
California case is Lineaweaver v. Plant Insulation Company {1995) 31 Cal.App.4th 1409. In
Lineaweaver, the court was faced with the task of determining whether the plaintiffs therein
had presented sufficient evidence of exposure to defendants’ asbestas products/activities to
justify a finding that such exposure had, in fact, caused their injuries. In upholding the judgment

of nonsuit, the Court held that a two-prong test was necessary in order to make its

Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
JudgmentoO oD mI DN OW RB YW NY

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determination as to whether exposure had caused plaintiff's harm: First, a plaintiff must prove
that he/she was exposed to a particular defendant’s product or activity (of whatever duration),
in order to establish that such exposure is a “possible” factor in causing the plaintiff's alleged
asbestos-related injury. Second, if and only if plaintiff has proven such “possible” [i.e. threshold]
exposure, does the court evaluate whether the exposure was a “substantial factor” in causing
plaintiff's injury. (/d. at 1416.)

It is important to note that “threshold exposure” and “substantial factor” are two
entirely different concepts, and that Plaintiffs must show both, Plaintiffs often submit
declarations from various experts opining that any threshold exposure is automatically a
substantial factor in the development of an asbestos-related disease. According to the

California Supreme Court, this is not sufficient to establish liability. (Rutherford v. Owens-Illinois,

supra, 16 Cal.4th at 982.) Every “threshold exposure” cannot possibly be a “substantial factor”
in the development of a plaintiff's injury. Otherwise, there would be only one test (for
“threshold exposure”) rather than two (for “threshold exposure” and “substantial factor.”)

Plaintiffs have not provided any evidence that Mr. Ross was actually exposed to asbestos
as a result of Cosco’s activities. Neither have they shown that any such alleged exposure would
be a “substantial factor” in the development of his injury. If Plaintiffs cannot provide evidence
on both elements of causation, their action must fail and Cosco is entitled to summary

judgment.

E. Plaintiffs Have Not Provided Any Evidence Showing That They are Entitled to Punitive
Damages in this Action
The right to an award of punitive or exemplary damages in California is strictly statutory.
In an action for the breach of an obligation not arising fram contract, where it is
proven by clear and convincing evidence that the defendant has been guilty of

oppression, fraud or malice, the plaintiff, in addition to the actual damages, may
recover damages for the sake of example and by way of punishing the defendant.

(Civ. Code, § 3294, subd. (a).} In a negligence action, conclusory allegations that simply
characterize defendant's conduct as malicious, oppressive, or fraudulent are insufficient and

subject to a dispositive motion. A plaintiff's complaint must allege facts demonstrating these
13

Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
Judgmentfactors. (See Smith v. Super.Ct. (Bucher} (1992) 10 Cal.App.4th 1033, 1036, 1042.) Plaintiffs’
complaint contains no such facts. (See Chiosso Decl, Exh. “A.”)

A defendant's motion for summary adjudication on the issue of punitive damages will
succeed where a plaintiff fails to provide evidence of “oppression, fraud, or malice” that could
be considered “clear and convincing.” (See American Airlines, Inc. v. Sheppard, Mullin, Richter &
Hampton (2002) 96 Cal.App.4th 1017, 1048-1054; Hoch v. Allied-Signal, inc./Bendix Safety
Restraints Division (1994) 24 Cal.App.4th 48.) In this case, Plaintiffs have failed to provide any
evidence, much less “clear and convincing” evidence, that Cosco is guilty of “oppression, fraud,

or malice.” (UMF Nos. 12-13, 22, 25, 27.)

1. Plaintiffs Have Provided No Evidence Showing That Cosco’s Conduct Was
Malicious

Ordinary negligence (mere carelessness or simple failure to exercise due care for
plaintiff's safety) does not amount to "malice" (or "oppression" or "fraud," discussed infra) and
thus does not support a punitive award. Nor, for that matter, is a finding of grossly negligent or
even reckless conduct enough to establish “malice.” (Bel! v. Sharp Cabrillo Hosp. (1989) 212
Cal.App.3d 1034, 1044; Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185
Cal.App.3d 1149, 1155.)

"Malice" for these purposes means "conduct which is intended by the defendant to
cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others." (Cal. Civil, § 3294, subd. (c)(1)
(emphasis added); CACI Nos. 3940, 3941; BAJI Nos. 14.71, 14.72.1; see College Hosp., Inc. v.
Super.Ct. (Crowell) (1994) 8 Cal.4th 704, 725.} The statutory definition of "malice" was amended
in 1987 to introduce the "despicable conduct" qualification in non-intentional tort cases and to
require that such "despicable conduct" be carried on with a willful and conscious disregard.
(Cal. Civil, § 3294, subd. (c)(1)). This amendment clearly shows the legislature’s intent to make
the prove-up of punitive damages in a non-intentional tort case a difficult task indeed.

"Used in its ordinary sense, the adjective ‘despicable' is a powerful term that refers to

circumstances that are 'base,' 'vile,' or ‘contemptible. (College Hosp., inc. v. Super.Ct.
14

Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
Judgment(Crowell), supra, 8 Cal.4th at 725, 34 Cal.Rptr.2d at 911; see American Airlines, Inc. v. Sheppard,
Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050, ("despicable suggests "the
character of outrage frequently associated with crime”).) Accordingly, the California Civil Jury
Instructions define “despicable conduct" as “conduct that is so mean, vile, base, or contemptible
that it would be looked down on and despised by reasonable people." (CACI Nos. 3940, 3941;
see also BAJ! 14.71, 14.72.1.) Essentially, it must appear (by clear and convincing evidence) that
defendant's conduct was so "wanton and willful" that injury to others was a virtual certainty.
(Taylor v. Super.Ct. (Stille), (1979) 24 Cal. 3d 890; see also Weisman v. Blue Shield (1984) 163
Cal.App.3d 61.)

Plaintiffs have not shown that any of Cosco’s conduct was “wanton” or “willful.”
Plaintiffs have provided no evidence that Cosco performed any action out of “malice,” and has
given this Court no reason to believe they could ever provide any evidence supporting such an
allegation.

2. Plaintiffs Have Provided No Evidence Showing That Cosco’s Conduct Was
Oppressive

"Oppression" for purposes of a punitive award means "despicable conduct that subjects
a person to cruel and unjust hardship in conscious disregard of that person's rights." (Cal. Civil, §
3294, subd. (c)(2).) As with subdivision (c}(1) (defining "malice," (see discussion supra}, the
section 3294 definition of "oppression" was amended in 1987 to require a showing of
"despicable conduct.” (Cal. Civil, § 3294, subd. (c}(2); CACI Nos. 3940, 3941; BAJI Nos. 14.71,
14.72.1,)

As a practical matter, “oppression” is little different than “malice.” A quick review
reveals that it is most often applied in insurance bad faith cases. (See, e.g., Richardson v.
Employers Liability Assur. Corp. (1972) 25 Cal.App.3d 232; and Tibbs v. Great American Ins. Co.
(9th Cir. 1985) 755 F.2d 1370.) In the instant case, as discussed above, there is no evidence that
Cosco engaged in the sort of “despicable conduct” envisioned by this statute.

3. Plaintiffs Have Provided No Evidence Showing That Cosco’s Conduct Was
Fraudulent

"Fraud," for purposes of a punitives award, means "an intentional misrepresentation,

Memorandum of Points & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
Judgmentme NWN

so

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il
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deceit, or concealment of a material fact known to the defendant with the intention on the part
of the defendant of thereby depriving a person of property or legal rights or otherwise causing
injury.” (Cal. Civil, § 3294, subd. (c}(3); CACI Nos. 3940, 3941; BAJI Nos. 14.71, 14.72.1.)
Plaintiffs have provided no evidence showing that they ever had any sort of communication with
a representative of Cosco; neither have they shown any intent on the part of Cosco to injure
them. (UMF Nos. 12-13, 22, 25, 27.)

Plaintiffs’ complaint does not show any malice, fraud, or oppression on the part of Cosco.
(UMF No. 21.) Plaintiffs’ discovery responses do not show any malice, fraud, or oppression on
the part of Cosco. (UMF Nos. 12-13, 22, 25, 27.) Since Plaintiffs can show none of malice, fraud,
or oppression on the part of Cosco, their claim for punitive damages must be dismissed.

IV.
CONCLUSION

For the foregoing reasons, Cosco respectfully requests that this Court grant its motion for
summary judgment and/or summary adjudication.

| Dated: February 6, 2012 JACKSON JENKINS RENSTROM LLP

By: /s/ ANTHONY C. CHIOSSO
ANTHONY C. CHIOSSO
Attorneys for Defendant
COSCO FIRE PROTECTION, INC.

1969407

16

Memorandum of Paints & Authorities in Support of Defendant Cosco Fire Protection, Inc.’s Motion for Summary
Judgment