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  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview 
						
                                
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                                1 || Edward R. Hugo [Bar No. 124839]
P.M. Bessette [Bar No. 127588]
21) Josette D. Johnson [Bar No. 195977]

BRYDON HUGO & PARKER ELECTRONICALLY
3 || 135 Main Street, 20th Floor FILED
San Francisco, CA 94105 Superior Court of California,
41| Telephone: (415) 808-0300 County of San Francisco
Facsimile: (415) 808-0333 MAY 03 2013
5 || Email: service@bhplaw.com Clerk of the Court
6 || Attorneys for Defendant BY: ALISON ae puty Clerk
A. TEICHERT & SON, INC.
7
8
SUPERIOR COURT - STATE OF CALIFORNIA
9
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
0
1
ROBERT ROSS and JEAN ROSS, (ASBESTOS)
2 Case No. CGC-09-275731
Plaintiffs,
3 VS. REPLY TO PLAINTIFFS’ OPPOSITION TO

A. TEICHERT & SON, INC.’S MOTION
4 1| C.C. MOORE & CO. ENGINEERS, et al, | FOR SUMMARY JUDGMENT, OR IN THE

ALTERNATIVE, SUMMARY
5 Defendants. ADJUDICATION
6
Date: May 9, 2013
7 Time: 9:30 a.m.
Dept: 503
8 Judge: Hon. Teri L. Jackson
9 Complaint Filed: | December 17, 2010
Trial Date: June 10, 2013
20
21 A. Teichert & Son, Inc. (“Teichert”) hereby submits its reply to plaintiffs’

22 |) opposition to Teichert’s motion for summary judgment.

23 Teichert’s motion for summary judgment was made on two grounds: that there is
24 |) no evidence that Teichert exposed plaintiff to asbestos, and also that under Johnson v.

25 || American Siandard (2008) 43 Cal.4* 56, Teichert owed no duty of care to plaintiff.

26 In opposition, plaintiff has failed to produce any evidence that Teichert exposed
27 || plaintiff to asbestos. First, plaintiffs have produced no evidence establishing that

28 || Teichert was present on the Sacramento Convention Center project. But, assuming that

BRYDON
Huco & PARKER 1

eho REPLY TO PLAINTIFFS’ OPPOSITION TO A. TEICHERT & SON, INC.’S MOTION FOR SUMMARY
Ser Francisco, CA 9415 JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION1 || Teichert was present, plaintiff's own testimony is not sufficent to establish that any
2 || activity by Teichert caused plaintiff to be exposed to asbestos.
3 In opposition to Teichert’s motion for summary judgment, plaintiffs also claim

4 || that Johnson v. American Standard (2008) 43 Cal.4t 56, does not apply to a negligence

5 || cause of action, but even if it did, Teichert has not shown plaintiff's individual

6 || sophistication regarding asbestos, such that Johnson should not apply. Neither

7 || argument is correct. Under Johnson, Teichert is not required to show plaintiff's

8 || individual, subjective level of sophistication. Rather, Teichert need only show the

9 || subjective sophistication of the members of plaintiff’s trade - asbestos workers.
0 || Moreover, Johnson explicitly states that it applies to negligence causes of action.

1 A. There Is No Evidence That Teichert Exposed Plaintiff To Asbestos.

2 Teichert was not present at the Sacramento Convention Center job site. Plaintiffs
3 || have produced no evidence contradicting the certified construction documents Teichert
4 || submitted in support of its motion. Moreover, since the motion was filed, Teichert has
5 || deposed the custodian of records for the City of Sacramento, who authenticated the

6 || documents. (See Declaration of Josette D. Johnson In Support Of Reply To Plaintiffs’

7 {| Opposition To A. Teichert & Son, Inc.’s Motion For Summary Judgment (“Johnson

8 || Reply Decl.), at Exhibit A at 13:12-21, 18:24-21:20, 24:4-13, and Exhibit B at 10:18-11:15,

9 || 26:3-20, 32:21-33:5, 33:9-22, 34:13-35:24, 40:2-8, 43:3-9.) Teichert has also obtained

20 |) additional “as built” drawings showing that the general contractor for the City of

21 |) Sacramento was Nielson- Nickles Co. (Johnson Reply Decl., Exhibit C.)

22 Moreover, even if the court were to disregarding the uncontroverted.

23 || documentary evidence submitted by Teichert, and assume that Teichert was at the

24 |) project, there is no evidence that any work done by Teichert exposed plaintiff to

25 |) asbestos. Plaintiffs have produced no expert evidence to support the claim that the

26 || sweeping allegedly done by Teichert employees would have exposed plaintiff to

27 |) asbestos. There is no evidence regarding the distance of plaintiff to the alleged sweeping

28 |) activity, and there is no evidence establishing the whether the sweeping would have

BRYDON
HuGo & PARKER 2
eho REPLY TO PLAINTIFFS’ OPPOSITION TO A. TEICHERT & SON, INC.’S MOTION FOR SUMMARY

Ser Francisco, CA 9415 JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATIONcaused asbestos dust to migrate to plaintiff's location.

2 B. As A Sophisticated User of Asbestos, Teichert Did Not Owe Duty Of Care
5 To Robert Ross.

4 Plaintiffs argue that Teichert has failed to show that Robert Ross was a

5 || sophisticated user of asbestos. This argument ignores the testimony of Robert Ross

6 || wherein he admitted to being a member of Asbestos Workers Local 16, to attending

7 || union meetings, to receiving the Asbestos Workers magazine, and to wearing a mask

8 || throughout his career. Regardless, it is beyond dispute that in Johnson, the Supreme

9 || Court adopted an objective standard in determining whether the plaintiff possessed
0 || sufficient knowledge to qualify as a “sophisticated user.” (Johnson v. American Standard,
1 |] Inc. (2008) 43 Cal.4® 56, 71.) Thus, it is not the knowledge of the individual that matters,

2 || but rather the knowledge of the trade or group to which the individual belongs that

3 || determines the application of the sophisticated user defense. The focus of inquiry is

4 || “whether the danger in question was so generally known within the trade or profession
5 || that a manufacturer should not have been expected to provide a warning specific to the
6 || group to which [the plaintiff] belonged.” (Johnson, supra, 43 Cal 4* at 74.) Here, there is
7 {| no doubt that Robert Ross himself, and the union to which he belonged, Local 16, were

8 || sophisticated users of asbestos who were fully aware of the dangers of exposure to

9 || asbestos.

20 C. As A Sophisticated User of Asbestos, Teichert Did Not Owe Duty Of Care
To Robert Ross.

21

22 Plaintiffs contend that even if the sophisticated user defense applies, it is limited

23 || to the strict liability/failure to warn cause of action, which they have agreed to

24 |) dismissed. Put another way, they argue that Johnson should apply only to

25 |) manufacturers of products, and not contractors. Plaintiffs are wrong. A fundamental
26 |) element of any cause of action for negligence is the existence of a legal duty of care

27 |) running from the defendant to the plaintiff. The existence and scope of any such legal

28 |) duty are legal questions for the court. “’[D]uty’ is not an immutable fact of nature but

BRYDON
HuGo & PARKER 3
eho REPLY TO PLAINTIFFS’ OPPOSITION TO A. TEICHERT & SON, INC.’S MOTION FOR SUMMARY

Ser Francisco, CA 9415 JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION1 || only an expression of the sum total of those considerations of policy which lead the law to
2 || say that the particular plaintiff is entitled to protection.” (Campbell v. Ford Motor

3 || Company (2012) 206 Cal.App.4* 15, 26 [emphasis in original].)

4 The Johnson court explained that it is the policy of California that, "[I[ndividuals

5 || who represent that they are trained or are members of a sophisticated group of users are
6 || saying to the world that they possess the level of knowledge and skill associated with

7 || that class." (Johnson, supra, 43 Cal.4® at 71.) Thus, anyone in the "world" should be

wo

absolved from providing a warning to a member of the sophisticated group. Otherwise,
9 || under plaintiffs theory, the product's designer and manufacturer, which incorporated
0 || the asbestos, has no duty to warn, while the law would impose such a duty on a person
1 || performing a service by installing controls. Under Johnson, such is not the law. The

2 || member of the sophisticated group, i.e., plaintiff - is deemed to have the same

3 || knowledge in both situations, whether it be with respect to a product manufacturer or

4 || with respect to a company like Teichert installing piping for plumbing. It is the actual or
5 || constructive knowledge of the plaintiff that is determinative, not the relation of the

6 || defendant to the plaintiff.

7 Said another way, under Johnson it is the knowledge of the sophisticated user

8 || group or trade that extinguishes any duty from a defendant to any member of the

9 || sophisticated user group, the rationale being that each member is deemed to have all the
20 || knowledge attributable to the group. To wit, whether plaintiff is working with an

21 |) asbestos-containing product from a manufacturer or working in proximity to work by
22 || Teichert, he is deemed to have the same knowledge in both situations. The effect of that
23 || knowledge, ie., there being no duty to warn, should not be affected by the actions or

24 |) status of the individual defendant. To say otherwise is to impose different duties on

25 || different defendants irrespective of the fact that plaintiff's knowledge is the same in all
26 |) situations, which would only produce an unjust result.

27 In essence, plaintiffs argue that Teichert employees should not have been doing

28 |) the job they were contracted to do, if in fact they were contracted to do any job at this

BRYDON
HuGo & PARKER 4
eho REPLY TO PLAINTIFFS’ OPPOSITION TO A. TEICHERT & SON, INC.’S MOTION FOR SUMMARY

Ser Francisco, CA 9415 JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION1 || location. This argument is absurd on its face. Teichert was not responsible for bringing
2 || asbestos block or mud to the job. That was the responsibility of plaintiff's employer.
3 || Plaintiff worked with asbestos on a daily basis, exposing himself to asbestos regardless

4 || of any action of Teichert. Nothing that Teichert could have said or done would have

5 || altered the fact that plaintiff's own job put him into daily contact with asbestos on the

6 || job sites. Thus, plaintiff assumed the particular inherent risk of working with asbestos in
7 || his job as an insulator, a risk of which he was well aware, and Teichert owed him no

8 || duty of care. (See Knight v. Jewett (1992) 3 Cal 4% 296, 314-315 [By virtue of the nature of

9 || the activity and the parties’ relationship to the activity, the defendant owes no legal duty
0 || to protect the plaintiff from the inherent risk of harm that caused the injury.]; Herrle v.

1 || Estate of Marshall (1996) 45 Cal_App.4” 1761 [senile patient in hospital owed no duty of

2 || care to nurse, who by the very nature of nurse’s chosen profession, assumed the danger
3 || of violence by her patients].)

4 Accordingly, this Court should not be persuaded by any contention by plaintiff

5 || that Johnson applies only to strict liability causes of action against manufacturers of

6 || products. Based on the forgoing, Teichert requests summary judgment be granted.

7
8 || Dated: May 3, 2013 BRYDON HUGO & PARKER
9
20 By: _/s/ Josette D. Johnson
Josette D. Johnson
21 Attorneys for Defendant
9 A. TEICHERT & SON, INC.
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BRYDON
Huco & Parker 5
1SSMawn Stier REPLY TO PLAINTIFFS’ OPPOSITION TO A. TEICHERT & SON, INC’S MOTION FOR SUMMARY

Ser Francisco, CA 9415 JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATIONRoss, Robert & Jean
San Francisco County Superior Court Case No. CGC-10-275731

File & ServeXpress Transaction No. 52113026
PROOF OF SERVICE

Tam a resident of the State of California, over the age of 18 years, and not a
party to the within action. My electronic notification address is
service@bhplaw.com and my business address is 135 Main Street, 20 Floor, San
Francisco, ¢ alifornia 94105, On the date below, I served the following:

REPLY TO PLAINTIFFS’ OPPOSITION TO A, TEICHERT & SON, INC'S
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,

SUMMARY ADJUDICATION
on the following:
BRAYTON #PURCELL File & Serve Electronic Service List
222 Rush Landing Road
Novato, CA 9494)

X By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

o By transmitting via facsimile the document(s) listed above to the fax
number(s) set forth above on this date before 5:00 p.m.

o By placing the document(s) listed above in a sealed envelope and placing
the envelope for collection and mailing on the date below following the
firm’s ordinary business practices, I am readily familiar with the firm's
practice of collection and processing correspondence for mailing. Under
that practice it would be deposited with U.S. Postal service on the same
day with postage thereon fully prepaid at San Francisco, California in
the ordinary course of business. I am aware that on motion of party
served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after date of deposit for mailing in
affidavit.

o By placing the document(s) listed above in a sealed envelope designated
for Federal Express overnight delivery and depositing same with fees
thereupon prepaid, in a facility regularly maintained by Federal Express,
addressed as set forth above.

o By causing personal delivery of the document(s) listed above to the
person(s) at the address(es) set forth above.

I declare under penalty of perjury that the above is true and correct.
Executed on May 3, 2013, at San Francisco, California.

Wanda D. Claudio

PROOE OF SERVICE