Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                Eugene C. Blackard Jr. (Bar No. 142090)
Jocelyn M. Soriano (Bar No. 201169)
Jasun C. Molinelli (Bar No. 204456)
jmolinelli@archernorris.com

ARCHER NORRIS

A Professional Law Corporation

2033 North Main Street, Suite 800
Walnut Creek, California 94596-3759
Telephone: 925.930.6600

Facsimile: 925.930.6620

Attorneys for Defendant
ALBAY CONSTRUCTION COMPANY

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAY 03 2013

Clerk of the Court
BY: CAROL BALISTRERI
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY O

ROBERT ROSS and JEAN ROSS,
Plaintiff,
vy.
C.C. MOORE & CO. ENGINEERS, et al.,

Defendants.

F SAN FRANCISCO

Case No. CGC-10-275731

ALBAY CONSTRUCTION COMPANY’S
REPLY TO PLAINTIFF’S OPPOSITION
TO MOTION FOR SUMMARY
JUDGMENT

Date:

Time:
Dept.:
Judge:

May 9, 2013

9:30 am,

503

Hon. Teri L. Jackson

Action Filed: December 17, 2010

Trial Date: June 10, 2013

iL INTRODUCTION

The burden has shifted to Plaintiffs to show the existence of a triable issue of fact based

on Plaintiff's factually-devoid responses to oral and written discovery and defendant’s affirmative

evidence submitted in support of this motion. Albay Construction Company’s (“Albay”)

affirmative evidence by itself, and when coupled with Plaintiff's factually devoid discovery

responses, shift the burden to Plaintiffs. Plaintiffs attempt to meet their burden, by relying on the

“newly refreshed” testimony of witnesses Robert Ross coupled with an unfounded hearsay

Declaration of Richard Cohen.

First, Albay objects to Plaintiffs Declaration and his “newly refreshed” testimony that he

ALBI91/1S79756-1

REPLY TO PLAINTIFE’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTobserved Albay employees working with certain materials in his presence. Plaintiffs “newly
refreshed testimony” is unfounded, based on speculation, and in fact contradicts his prior
testimony.

In Opposition, Plaintiffs have presented the declaration of Dr. Richard Cohen, to refute
Albay’s contention that they did not have a duty of care to plaintiff, Dr. Cohen opines that Albay
should have known about the dangers of asbestos during the subject timeframe. Dr. Cohen’s
opinions are complete speculation with no foundation, If his opinions are accurate, then plaintiff
himself should have known that asbestos was dangerous during the times he worked in the
presence of Albay. Therefore, the burden having been shifted to Plaintiffs, Summary Judgment in
favor of Albay is mandated.

Tt. ARGUMENT

A. The Burden Shifted To Plaintiffs To Prove Albay Is Liable For Plaintiff's
Alleged Asbestos-Related Injury

Plaintiff's reliance on the testimony Plaintiff presented about working at refineries on.
three occasions in the presence of Albay at Standard Oil, Shell Oil and Hewlett Packard in the
1960s did not shift the burden of proof is misplaced, as any exposure from his activities as an
Albay employee does not create a triable issue of fact in this case. Any such exposure is not
subject to recovery in this matter, as a matter of law. Plaintiff has not the proper foundation to
opine that any materials he observed Albay using was in fact asbestos containing.

In response to written discovery, Plaintiff did not provide any admissible evidence that he

worked around Albay while they were using asbestos containing materials to which he was
exposed. (SS Nos, 8-10.)

In California, a defendant need not present affirmative evidence to negate all elements of a
Plaintiff's cause of action. This is because, as the Supreme Court stated in the seminal case of
Aguilar v. Atlantic Richfield Company et al. (2001) 25 Cal. 4" 826, 853-857, “given the difficulty
of proving a negative, .. . a test requiring conclusive negation is often impossibly high.” Thus, a
moving defendant may meet its burden on a motion for summary judgment by showing the

plaintiff does not possess, and cannot reasonably obtain, the necessary evidence to prove a

ALBIOI/I579756-1 1

REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTnecessary element of a claim. Jd, at 854.

Here, in response to written discovery seeking a listing of all jobsites where Plaintiff
claimed asbestos exposure attributable to Albay, and further sought all documents, facts and
witnesses fo support that claim, Plaintiff mimicked his deposition testimony that he subsequently
testified to. Furthermore, during that testimony, he provided NO testimony that would tend to
prove that Albay was using any materials in his presence that contained asbestos. Thus, in effect,
Plaintiff has presented no admissible evidence that Albay was actually present at a jobsite
alongside of Albay, and that he was actually exposed to asbestos containing materials.

Therefore, Plaintiff's lack of evidence to establish asbestos exposure attributable to Albay
in response to extensive written discovery and at deposition is sufficient, by itself, to shift the
burden to Plaintiff to demonstrate the existence of triable issues of fact. And, once shifted,
Plaintiffs are required to put forth admissible evidence to show he was actually exposed to
asbestos by Albay personnel.

The Declaration testimony of Plaintiff based on “Refreshed Facts” lacks foundation,

constitutes nothing more than speculation and conjecture, and does not raise a
triable issue of material fact.

It is well-settled that in order to support an opposition to summary judgment, a declaration
must (a) show the declarant’s personal knowledge and competency to testify; (b) state evidentiary
facts, not conclusions; (c) and not contain inadmissible hearsay or opinions. Hayman v. Block
(1986) 176 Cal. App. 3d 629, 638-639.

In his deposition, Plaintiff testified that he worked in the presence of Albay on three
particular occasions which he alleges they disturbed asbestos in his presence. (SS No. 3)
Plaintiff testified that he worked around Albay at Hewlett Packard in 1959 but Albay did not exist
until 1961, (SS No. 4.) Plaintiff has offered NO evidence that Albay worked with asbestos
containing products at any location and is not qualified to offer any opinions regarding the chemical
composition of the products that other contractors worked with in his proximity and has not provided
any foundational basis for any such knowledge. (SS No. 5). Plaintiff is not qualified and lacks

foundation to opine regarding the composite materials in the products that Albay may have used

ALBI9I/1579756-1 2

REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTew oN

~

10

in his presence. Riverview Fire Protection Dist. v. Workers’ Comp. Appeals Bd. (1994) 23
Cal.App.4th 1120.

Despite not offering such testimony at deposition, in his subsequent declaration in support
of his opposition, Plaintiff testifies as to the type of products that he observed but failed to offer
that testimony at deposition. (See Declaration of Robert Ross at paragraphs 4-9, attached to his
Opposition as Exhibit “A.”)

Plaintiff has now come with a self-serving declaration, improperly adding the speculative
and incredible claims that Albay used materials certain. This “new” testimony amounts to little

more than speculation and lacks foundation to overcome summary judgment. Itis a clear, but

unfounded, attempt to bolster plaintiff's foundation to opine that the subject insulation is asbestos

containing. Plaintiff has provided no basis for this new testimony.
Plaintiff's declaration is a self serving attempt to bolster his claims against Albay and
comes without foundation. It should not be considered by this Court in contemplation of this

motion.

Either way, at most all that is created is a mere possibility that it was asbestos containing.
A mere possibility of exposure to asbestos is insufficient to establish the “proximate cause”
element of plaintiff's causes of action. (Morgenroth v. Pacific Medical Center, Inc. (1976) 54
Cal.App.3d 521, 533; Johnston y. Brother (1961) 190 Cal. App.2d 464, 473; Pacific Employers
Ins. Co. v. Industrial Accident Commission (1960) 182 Cal.App.2d 162, 165.) Rather, “the
evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor
of the party opposing the motion for summary judgment.” -(MeGonnell, supra, at 1419-1421.)

Albay Had No Duty to Prevent Plaintiff’s Unforeseeable Injuries.

Albay did not owe a duty of care to plaintiff at Tosco or Shell in 1978 and 1982.
Regardless of whether Albay caused plaintiff to be exposed to asbestos as a result of their work in
plaintiff's presence, it was unforeseeable that it would cause plaintiff to be injured. Duty, being a
question of law, is particularly amenable to resolution by summary judgment. Juarez v. Boy
Scouts of America, Inc. (2000) 81 Cal.App.4" 377, 402; Parsons y. Crown Disposal Co. (1997)

15 Cal.App.4", 456; Ballard v. Uribe (1986) 41 Cal.3d 564, 572; Nola M. v, University of
ALBI91/1579756-L 3

REPLY TO PLAINTIFE’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTNu

a

Southern California (1993) 16 Cal.App.4" 421, 426.

In California, the Courts have routinely applied the factors set forth in the Rowand
decision in determining the imposition of common law tort duty.

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, 188-119, Ifthe harm is unforeseeable,
there can be no duty. Rowland, supra, 69 Cal.2d at 113.

While the first of the Rowand considerations is foreseeability, it is more than a mere

consideration. If the Court concludes the injury alleged is not foreseeable, there can be no duty.
Sturgeon v. Curnutt (1994) 29 Cal.App.4" 301, 306; Ann M. y. Pacific Plaza Shopping Center
(1993) 6 Cal.4" 666, 679-680.

Foreseeability will support a finding of duty only to the extent the foreseeability is
reasonable. Juarez v. Boy Scouts of America, Inc, (2000) 81 Cal.App.4” 377, 402; Sturgeon v.
Curnutt, supra, 29 Cal.App.4" at 306; Rowland, supra, 69 Cal.2d at 113. By invoking a
subjective reasonableness standard, the courts bring imposition of duty in line with practical
conduct. An injury is only reasonably foreseeable if it “is likely enough in the setting of modern
life that a reasonably thoughtful person would take account of it in guiding practical conduct.”
Bighee v. Pacific Tel. & Tel. Co. (1983) 34 Cal. 3d 49, 57.

Albay has presented affirmative evidence that it did not and had no reason to know that
any of its work in the proximity of plaintiff at the alleged locations could have exposed the

plaintiff to danger or could cause him injury. Albay and its employees had no knowledge that

asbestos was dangerous just as plaintiff did not have knowledge of that fact. They, along with all

the other similar contractors, such as plaintiff's employer Fluor Company, had no reason to know

or understand that working with asbestos posed anyone a danger of injury.
ALBIOI/1579756-1 4

REPLY TO PLAINTIFF’S OPPOSITION TO DEEENDANT’S MOTION FOR SUMMARY JUDGMENTSo © 6 ID Hh BB Ww YN

RMN YN NR NN RN Rm em ema
SS AHA BW YH = S&C ew DW PB WwW YD mm

Without knowledge of the dangers of asbestos, Albay could not have reasonably foreseen
any risk of injury that their work may have posed to themselves or to plaintiff. (SS Nos. 6-7, 9.)
Thus, under the foregoing authorities, Albay owed no duty of care to plaintiff to protect him from
asbestos during their work in the 1960’s because it was not reasonably foreseeable that such work
would cause plaintiff an injury and is entitled to summary judgment as a matter of law.

Plaintiff offers the testimony of Dr. Richard Cohen to provide the ultimate opinion that
Albay should have known that asbestos was dangerous in the 1960’s. Dr. Cohen cites that such
information was available to the “scientifiec and medical” communities at said time. But he
offers no reasonable basis to show that a contractor such as Albay or Mr. Ross’ employer during
the subject time period actually had that knowledge or reasonabley should have had that
knowledge. None of Dr. Cohen’s declaration establish that he had the special knowledge, skill,
experience, training or education sufficient to qualify him as an expert on the industry standard
for small contractors ability to know the dangers of asbestos in the 1960’s, issues which is the
essence of his opinions. Evidence Code §§ 210, 350, 720. The courts have an obligation to
require adequate foundation for an expert opinion. Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.
App. 4th 1516, 1523. Matters which “reasonably may be relied upon" by the expert in forming
her opinion depend upon the circumstances but cannot be speculation or conjecture, Jd, at 1524.
When an expert has no training or personal research that would inform him about a subject
maiter, that expert's opinion with regard to the subject matter is mere speculation and must be
excluded. Jd, at 1526-27.

Mr. Cohen's declaration lacks foundation in that he relies on evidence that is irrelevant
and misleading. If an expert's opinion is not based on facts otherwise provided, it is not
admissible evidence. Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, at 338-339. See also,
Garza v, Workmen's Compensation Appeals Board (1970) 3 Cal.3d. 312, 318, (where an expert
did not completely examine the petitioner and the expert's opinion appears to be based on

tangential information, the opinion is based on "guess, surmise or conjecture, rather than relevant

probative fact" and cannot constitute substantial evidence.)

Moreover, there is no evidence that Dr. Cohen has ANY understanding or information to

ALBI91/1579756-1 3

REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTsupport his conclusions that is related directly to Albay. He provides no foundation that he has
any understanding of the sophistication level or ability of Albay to have known about the
potential dangers of asbestos in the 1960’s. His conclusion is totally unfounded and in error.
(Evidence Code §§ 401, 403, 720; Bozzi v. Nordstrom (2010) 186 Cal.App.4th 755, 762
(opinions of an expert are nothing more than syllogistic reasoning and have no probative value
where the expert has not seen or inspected the jobsite at issue.). (See also, Jennings v. Palomar
Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 (“an expert's opinion that
something could be true if certain assumed facts are true, without any foundation for concluding
those assumed facts exist in the case before the jury, does not provide assistance to the jury
because the jury is charged with determining what occurred in the case before it, not
hypothetical possibilities"..)

Additionally, many of the factual contentions set forth in Dr. Cohen’s declaration are not
separately set forth in any opposing separate statement as required by Code of Civil Procedure
section 437¢(b)(3), and therefore cannot be considered evidence at summary judgment. The
court can only consider factual contentions which are set forth in the separate statement because
"if it is not set forth in the separate statement, it does not exist." Roger H. Proulx & Company
v. Crest Linders, Inc. (2002) 98 Cal.App.4" 182, 198 (emphasis added). The Code of Civil
Procedure states that the opposing separate statement" shall set forth plainly and concisely any
other material facts that the opposing party contends are disputed...Failure to comply with this
requirement of a separate statement may constitute a sufficient ground, in the court's discretion,
for granting the motion." Code of Civil Procedure section 437c(b)(3).

Similar to the instant matter, the plaintiff in Casey v. Perini Corporation Sune 13, 2012)
206 Cal. App. 4th 1222, provided a declaration opining that Mr. Casey was exposed to asbestos
as a result of the activities of Perini employees. In that instance the declarant was a hired
Certified Industrial Hygienist, Kenneth Cohen. Nonetheless, as with this case, Mr. Cohen relied
on the years identified for the three job sites associated with Perini and OSHA regulations which
presumed that all surfacing materials in buildings constructed prior fo 1980 contained asbestos.

Casey, supra at 1226. The court found that this expert evidence amounted to speculation in that

ALBIL9I/1579756-1 6

REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTMr, Cohen's opinion relied on OSHA regulations, the purpose of which is to create efficient
regulation, and did not rely on "any factual support for the proposition that the challenged
jobsites contained asbestos during the relevant time period." /d at 1233.

The instant case is directly analogous to Casey. Therefore, Dr. Cohen’s declaration
provides no evidence that would raise a triable issue of material fact.

Plaintiffs Cannot Show That Albay Is Liable For Plaintiff’s AHeged Asbestos-
Related Injury.

It has long been held that a party opposing summary judgment must produce “substantial”
responsive evidence showing some “triable issue” of material fact. Sangster v. Paetkau (1998) 68
Cal.App.4th 151, 162, 166. Bare assertions that a moving party “fabricated” evidence, or
evidence that gives rise to no more than speculation is insufficient to overcome summary
judgment, Jd Conclusory arguments that plaintiffs have evidence to support their claim of
willful misconduct is insufficient to avoid summary judgment as the evidence must actually be
presented in opposition. Uhrich v, State Farm Fire & Cas. Co. (2003) 109 Cal.App.4th 598, 616
(Citations omitted) (“A party cannot defeat summary judgment by the expedient of averring he
has evidence to support a cause of action; instead, such evidence must be presented in
opposition to summary judgment.”) (Emphasis added.)

Here, Plaintiff submitted as evidence in support of their Opposition the inadmissible
declaration of Richard Cohen and the unreliable Declaration of Mr. Ross and the deposition
testimony of Mr. Ross, none of which demonstrates that Plaintiff was in fact exposed to any
asbestos-containing products or materials removed, installed or otherwise disturbed by Albay.
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ALBIOI/£579756-L 7

REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTIl. CONCLUSION
Under Code of Civil Procedure section 437(c), the burden has shifted to Plaintiffs to
present evidence of liability as to Albay, to show that Albay is caused Plaintiff's alleged asbestos-

related disease. As stated above, Plaintiffs simply cannot meet this burden.

Dated: May 3, 2013 “OH NORRIS

Jasun C. Molinelli
Attorneys for Defendant
ALBAY CONSTRUCTION COMPANY

ALBI91/1579756-1 8

REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTPROOF OF SERVICE

Name of Action: Ross v, C.C. Moore & Co. Engineers, et al.
Court and Action No: San Francisco Superior Court Action No. CGC-10-275731

I, Kristen M. Garcia, declare that I am over the age of eighteen years and not a party to
this action or proceeding. My business address is 2033 North Main Street, Suite 800, Walnut
Creek, California 94596-3759. On May 3, 2013, I caused the following document(s) to be
served:

ALBAY CONSTRUCTION COMPANY'S REPLY TO
PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT

Oo by placing a true copy of the document(s) listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices. | am readily familiar
with this business’ practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service with postage fully prepaid.

oO by placing a true copy of the document(s) listed above, in a box or other facility
regularly maintained by Federal Express, an express service carrier, or delivered to a
courier or driver authorized by the express service carrier to receive documents, in an
envelope designated by the express service carrier, with delivery fees paid or provided
for, addressed as set forth below.

I electronically served the above referenced document(s) through LEXIS NEXIS. E-
service in this action was completed on all parties listed on the service list with LEXIS
NEXIS. This service complies with the court’s order in this case.

Service List

I declare under penalty of perjury that the foregoing is true and correct. Executed on May
3, 2013, at Walnut Creek, California.

Kobo Le Lp SD)

Kristen M. Garcia

ALBAY CONSTRUCTION COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR