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

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                                BRAYTON*PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD

PO BOX 6169
NOVATO, CALIFORNEA 94948-6169

4415) 808-1585

oem NY KD A BY

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ALAN R. BRAYTON, ESQ., 8.B. #73685
DAVID R. DONADIO, ESQ., 8.B. #154436
OREN P. NOAH, ESQ., S.B. #136310 ELECTRONICALLY
ASHLEY J, BENSON, ESQ., S.B. #276326

BRAYTON#PURCELL LLP FILED.
Superior Court of California,

Attorneys at Law County of San Francisco

222 Rush Landing Road

P.O. Box 6169 APR 25 2013
Novato, California 94948-6169 Clerk of the Court
(415) 898-1555 BY: ALISON AGBAY
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com Deputy Clerk

Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, ) ASBESTOS
) No. CGC-10-275731
Plaintiffs, )
) PLAINTIFFS' MEMORANDUM OF
Vs. ) POINTS AND AUTHORITIES IN
) OPPOSITION TO DEFENDANT S.J.
C.C. MOORE & CO. ENGINEERS; ) | AMOROSO CONSTRUCTION CO.,
Defendants as Reflected on Exhibit | ) INC.’S MOTION FOR SUMMARY
attached to the Summary Complaint herein; ) © JUDGMENT OR, IN THE
and DOES 1-8500. ) ALTERNATIVE, SUMMARY
ADJUDICATION
Date: May 9, 2013
Time: 9:30 a.m.
Dept: 503, Hon. Teri L, Jackson
Trial Date: June 10, 2013
Action Filed: December 17, 2010
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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT S.J. AMOROSO CONSTRUCTION
€O., INC."S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONTABLE OF CONTENTS

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1 INTRODUCTION. .. 2.00222. eee 1
ul STATEMENT OF FACTS. 2.000.000.0000 eects 2
Hl. LEGAL ARGUMENT... .. 0.00000 e nee n eee ee 5

CONCLUSION

A. THE SCOPE OF DEFENDANT'S MOTION IS LIMITED TO THE
ISSUES PRESENTED IN ITS SEPARATE STATEMENT OF

UNDISPUTED MATERIAL FACTS, 0000.00.00 cee cece eee

B. DEFENDANT AMOROSO OWES A DUTY TO PLAINTIFF TO
EXERCISE REASONABLE CARE IN HANDLING AND

DISTURBING ASBESTOS-CONTAINING MATERIALS... ..........--

cC. DEFENDANT HAS FAILED TO MEET ITS BURDEN THAT THE
SOPHISTICATED USER DEFENSE PRONOUNCED IN JOHNSON v.
AMERICAN STANDARD, INC. (2008) 43 CAL.ATH 56 APPLIES TO

THE CASE AT BAR... cee tenet eens

D. THE UNION HAS NO EXPRESS DUTY TO PROVIDE FOR SAFETY

IN THE WORKPLACE... 00. cece eee eee

E. THE SOPHISTICATED USER DEFENSE IS NOT A COMPLETE

DEFENSE TO PLAINTIFFS’ NEGLIGENCE CAUSE OF ACTION..... .

F DEFENDANT’S ALTERNATIVE REQUEST FOR SUMMARY

ADJUDICATION SHOULD BE DENIED... 0. eee ee

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT S.J. AMOROSO CONSTRUCTION
€O., INC."S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY

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TABLE OF AUTHORITIES
CASES
Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49.00.00. eee 7
Conn. v, National Can Corp, (1981) 124 Cal. App.3d 630.......0. 000.0. c eee eee eee ee 5
Fleet v. CBS, Inc. (1996) 50 Cal-App.4th 1911... 0s 5,6

International Brotherhood of Electrical Workers, AFL-CIO v. Hechler (1987) 481 U.S. 851. 12

Johnson v, American Standard, Inc, (2008) 43 Cal 4th 56. 0.0.0... .0.. 000 eee ee 9-11, 13,14
Juge v. County of Sacramento (1993) 12 Cal App.4th 59.00.0200 eee 5
Nazir v. United Airlines, Inc. (2009) 178 Cal-App.4th 243.00... 000. cee cece ee 6
North Coast Business Park v, Nielsen Construction Co. (1993) 17 Cal.App.4th 22.......... 6
Peter W. v. San Francisco Unified School District (1976) 60 Cal. App.3d 814............ 6.7
Rowland v. Christian, 69 C.2d 108. 0.0. cece eee eee nee tenn eee 8
San Diego Watercrafts, Inc, v, Wells Fargo Bank, N.A, (2002) 102 Cal App.4th 308...... 5,6
Scott v. Chevron U.S.A. (1992) 5 Cal App.4th S10. 22 eee 7
Steelworkers v. Rawson (1990) 495 U.S. 362... cee eee eeee 12
Vaca v, Sipes (1967) 386 U.S. 7b. cen eens 12
Warner v. Santa Catalina Island Co. (1955) 44 C.2d 310... eee 8
STATUTES

California Civil Code § 1714(a). 0. ccc nett ene nee 7
California Code of Civil Procedure § 4370... eee eee eens 5,6
California Code of Civil Procedure § 437c(a).. 000... 6
California Code of Civil Procedure § 437c(b)(1). o.oo cee eee eee ee 5
California Code of Civil Procedure § 437e(p)(2). occ eens 9
California Code Regulations, tit. 8, §. 519, subd. (Hh)... 66. eee ee il
California Code Regulations, tit. 8, § 5194, subd. (g)...0 00. eee eee ll
California Code Regulations, tit. 8, § 5194, subd. (g)(1), (2). 60. eee eee 1
California Code Regulations, tit. 8, § 5194, subd. (h)(2)(c). . 6 ee eee ee i
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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT S.J. AMOROSO CONSTRUCTION
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TABLE OF AUTHORITIES (Cont'd.)

STATUTES (cont’d.)

California Code Regulations, tit. 8, § 5194, subd. (h)(2)(c), (D), (E), (FJ... ee 12
OTHER AUTHORITY

California Rules of Court 3.1350. 00000 eee eee eee eee 6
California Rules of Court 3.3150(d). 0. eee eee ee rene eeree 5
Restatement Second of Torts, section 388..........02.0000202000 50020 cece eee eee 13
Witkin, § 833.00 cece eter been tenet e teens 7

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT $.1. AMOROSO CONSTRUCTION
CG., INC."S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY

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L
INTRODUCTION

Defendant S.J. AMOROSO CONSTRUCTION CO., INC. (‘AMOROSO”) asserts two
(2) arguments in its Motion for Summary Judgment and/or Adjudication: (1) that it did not
have and shouldn’t have known about the hazards of asbestos and therefore cannot be liable to
plaintiff, and (2) the affirmative defense that Mr. ROSS was a sophisticated user and thus
AMOROSO had no duty to warn Mr. ROSS of the hazards of which he was already aware.

As to its first argument AMOROSO ignores the state of the art available at the time it
exposed Mr. ROSS to asbestos. Plaintiffs’ discovery responses include facts, references to
extensive documents, and expert testimony supporting plaintiffs’ claims that a contractor such
as AMOROSO should have know asbestos was hazardous.

Defendant's second argument that it is shielded from liability on account of a purported
affirmative defense of sophisticated user fails on two grounds, First, defendant fails to establish
that plaintiff was a sophisticated user under applicable California law. Second, even if plaintiff
were considered to be a sophisticated user, the sophisticated user defense does not amount to a
complete defense and contrary to the defendant’s erroneous assertion does not absolve
defendant of a duty to exercise due care.

As to its showing of plaintiff's supposed sophistication, defendant presented no
evidence regarding what plaintiff knew about hazards of asbestos at any time. Defendant has
merely suggested there are articles and there were meetings that would have informed plaintiff
of the hazards of asbestos. Defendant made no showing that plaintiff had read the articles or
attended any meetings , that there was any requirement or expectation that plaintiff had read the
articles or attend any meetings, or even that plaintiff had the opportunity to read the articles.
The defendant's effort to stack inference upon inference fails to demonstrate that plaintiff knew
or ought to have known of asbestos hazards at the time defendant’s employees negligently
exposed him to asbestos.

Even had defendant successfully demonstrated plaintiff to have been sophisticated, the

sophisticated user defense, when it applies at all, applies ONLY to the duty to warn. It does not

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relieve the defendant from its duty to exercise reasonable care to avoid injuring others by other
means. It provides no immunity for the negligence of its employees in exposing plaintiff to
asbestos.

Plaintiffs produce herewith competent evidence demonstrating that a disputed issue of
material fact exists regarding what defendant ought to have known about the presence of
asbestos in the materials disturbed by its employees and the hazards posed thereby. Specifically
Richard Cohen, M.D.’s declaration articulates that there was a longstanding general
understanding of workplace dusts as posing a hazard decades before the events at issue in the
instant matter, creating a concurrent obligation on the part of an employer to determine if
hazardous materials are present. Dr. Cohen also articulates additional specific reasons why, by
the mid1970's, regulations of the Environmental Protection Agency and OSHA, should have
further alerted contractors in industrial settings to the potential hazards posed by thermal
insulation materials and spray-on fireproofing. From the facts presented by Dr. Cohen’s
declaration, a reasonable finder of fact could conclude that AMOROSO ought to have known of
the presence of asbestos, or at the very least dust in general, the hazard posed thereby and
should therefore have conducted itself in a manner so as not to expose Mr. ROSS.

AMOROSO has neither shown that plaintiffs’ evidence is deficient nor proffered
sufficient evidence to establish the affirmative defense of sophisticated user as a complete
defense. Thus, AMOROSO’s arguments fail,

I.
STATEMENT OF FACTS

ROBERT ROSS, a career insulator, suffers from colon cancer, asbestosis and asbestos-
related pleural disease. (Complaint, Ex. A.) He and his wife filed a Third Amended Complaint
for Personal Injury and Loss of Consortium action on May 11, 2012 against various defendants
responsible for his exposure to asbestos, including AMOROSO.

In this Motion, AMOROSO acknowledges that the claims herein arise from
AMOROSO's laborers exposing Mr. ROSS to asbestos at four sites: San Francisco International
Me

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Airport, UCSF Medical Center, Kaiser San Francisco Medical Center, and the University of
California Berkeley. (AMOROSO’s Separate Statement No. 8.)

Defendant AMOROSO acknowledges that the evidence shows that:

. In the late 1960s Mr. ROSS worked in the presence of a AMOROSO employees
at San Francisco international Airport and that these employees penetrated and
removed existing drywall and swept up construction related debris.
(AMOROSO’s Separate Statements Nos, 10 and 11.)

: in 1977 Mr. ROSS worked in the presence of a AMOROSO employees during a

remodel project at a building on the campus of UCSF Medical Center in 1977
and that these employees penetrated and removed existing drywall and swept up
construction related debris. (AMOROSO’s Separate Statements Nos. 12 and
14.)
. Between 1977 and 1979, Mr. ROSS worked around laborers employed by
AMOROSO during a remodel project at Long Hospital at UCSF Medical Center.
These AMOROSO employees swept up construction debris in Mr. ROSS’s
presence. (AMOROSO’s Separate Statement Nos. 17 and 18.)
. Between 1977 and 1980, Mr. ROSS worked around laborers employed by
AMOROSO during a remodel project at Kaiser San Francisco Medical Center .
These AMOROSO employees swept up construction debris in Mr. ROSS’s
presence. (AMOROSO’s Separate Statement Nos. 21 and 22.)
. In 1992 or 1993, Mr. ROSS worked around laborers employed by AMOROSO
during a remodel project at University of California Berkeley . These
AMOROSO employees swept up construction debris in Mr. ROSS’s presence.
(AMOROSO’s Separate Statement Nos. 24 and 25.)
In this Motion, AMOROSO does not contend that plaintiffs cannot prove that the
fireproofing, thermal insulation and drywall disturbed by AMOROSO employees in plaintiff's
presence did not contain asbestos, or that he was not exposed to asbestos. (AMOROSO’s

Separate Statement of Facts.)

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT S.J. AMOROSO CONSTRUCTION
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With regard to AMOROSO’s contentions that it owed no duty to prevent Mr. ROSS

from breathing in the asbestos dust that its employees created, the facts are that:

.

Extensive literature, dating back a century, recognized the potential hazards
posed by toxic substances leaving the work place on the clothing or person of
workers. (Declaration of Richard Cohen, M.D., M.P.H.)

Literature dating back as early as1898 recognized the hazards posed by asbestos
and by the late 1940s, it came to be understood that asbestos could cause cancer.
(id.)

Extensive studies and literature indicate that well recognized practices were
available to reduce or eliminate the exposure to asbestos in the workplace. (Id.)
By the 1960s a company working in construction and on jobsites where
contractors and laborers were working alike should have been aware of potential
health hazards associated with exposure to certain occupational dusts generally.
in view of this, to the extent that any contractor was unaware of the composition
of dust which might be created or encountered, it ought to have sought out such

information. (Id.)

Likewise, by the 1960s a company, working in construction and on jobsites
where contractors and laborers were working alike, should have been aware of
health hazards associated with exposure to asbestos dust. Information was
readily available prior to the 1960s concerning the health hazards of not only
exposure to certain occupational non-asbestos dusts, but also to asbestos dust
and the associated increased risk of developing an asbestos-related disease.
Information regarding the substantial health risks associated with exposure to
airborne asbestos was readily available by the 1960s, and only became more
readily available over the course of time. (Id.)

Equally available was information about measures to reduce the creation of dust
and eliminate or reduce the exposure to dust that was created. By the 1960s,

contractors, including defendant, located in California and subject to California

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General Industry Safety Orders, had ready access to information regarding
methods for mitigating exposures and could have implemented them. (Id.)
‘ Contractors such as defendant should have been educating their employees and
implementing procedures to mitigating dust in at least the 1960s. (1d.)
iil.
LEGAL ARGUMENT
A, THE SCOPE OF DEFENDANT'S MOTION IS LIMITED TO THE ISSUES

PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS

California Code of Civil Procedure § 437c imposes “on the moving party both a
pleading requirement and a substantive burden in order to prevail on a motion for summary

judgment.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66.) “[T]he initial duty

to define the issues presented by the complaint and to challenge them factually is on the
defendant who seeks a summary judgment.” (Conn. v, National Can Corp. (1981)
124 Cal.App.3d 630, 638.) This duty requires a defendant seeking summary judgment to set

forth in its moving papers “with specificity (1) the issues tendered by the complaint or answer

which are pertinent to the summary judgment motion and (2) each of the grounds of law upon
which the moving party is relying in asserting that the action has no merit or there is no defense
to the action.” (Juge, 12 Cal.App.4th at 67.)

Specifically, “[t]he Separate Statement of Undisputed Material Facts in support of a
motion must separately identify cach cause of action, claim, issue of duty or affirmative
defense, and each supporting material fact claimed to be without dispute with respect to the
cause of action, claim, issue of duty, or affirmative defense. (Cal. Rules of Court, rule
3.3150(d), emphasis added.) “The due process aspect of the separate statement requirement is

self-evident, to inform the opposing party of the evidence to be disputed to defeat the motion.”

(San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A, (2002) 102 Cal.App.4th 308, 316.)

“Failure to comply with this requirement of a separate statement may in the court’s discretion
constitute a sufficient ground for denial of the motion.” (C.C.P. § 437ce(b)(1)) “Facts stated

elsewhere [other than in the separate statement] need not be considered by the court.” (Fleet v.

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CBS, Inc. (1996) 50 Cal.App.4th 1911, 1916.) Due process further requires the Court to
exclude any evidence which was not timely served in accordance with C.C.P. § 437c(a). (San
Diego Watercrafts, Inc., 102 Cal.App.4th at 316.) “Thus, when the ‘fact’ is not mentioned in
the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork
filed with the court, because the statutory purposes are not furthered by unhighlighted facts.”

(North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31.)

Further, defendant cannot expand the scope of its argument or offer new evidence in
response to either plaintiffs’ response to defendant's Separate Statement or to plaintiffs’ own
Separate Statement if one was necessary. There is no provision in either C.C.P. § 437c or
California Rules of Court 3.1350 authorizing or allowing a response to the opposing party’s

Separate Statement. (See, Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253.)

Therefore, any supplemental declarations, documents, or additional evidence presented by
defendant in its reply brief or at the hearing on this motion must be disregarded.

Here, defendant makes two arguments, both erroncous: (1) that defendant didn’t know
and shouldn't have known asbestos dust was hazardous; and (2) even if they had known about
the hazards of asbestos dust, defendant owed no duty to plaintiff because Mr. ROSS was a
sophisticated user.

Defendant does not dispute that its employees disturbed and handled fireproofing,
gaskets, and thermal insulation. They merely, erroneously, claim that they owed Mr. ROSS no
duty to exercise reasonable care. Nor does defendant argue any failure of evidence of exposure
or medical causation."

B. DEFENDANT AMOROSO OWES A DUTY TO PLAINTIFF TO EXERCISE

REASONABLE CARE IN HANDLING AND DISTURBING ASBESTOS-
CONTAINING MATERIALS

“According to the familiar California formula, the allegations requisite to a cause of
action for negligence are (1) facts showing a duty of care in the defendant, (2) negligence

constituting a breach of the duty, and (3) injury to the plaintiff as a proximate result.” (Peter W.

! Defendant also seeks summary adjudication of plaintiffs’ claims for strict liability, but plaintiffs have
dismissed this cause of action.

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y. San Francisco Unified School District (1976) 60 Cal. App.3d 814, 131.) Defendant owed a

duty of care to plaintiff in this matter, which it breached. As a result, plaintiff suffered injury.
The foreseability of the harm, though not determinative, has become the chief factor in

duty analysis." (Scott v. Chevron U.S.A, (1992) 5 Cal.App.4th 510, 515.) Our state Supreme

Court discussed the foresceability analysis in Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d

49. In that case, the plaintiff was inside a telephone booth located in a parking lot 15 feet away
from the curb when an intoxicated driver veered off the street and crashed into the booth,
injuring plaintiff. The plaintiff sued the entities that installed and maintained the telephone
booth, alleging that the booth was negligently located too close to the street. The defendants
moved for summary judgment, which the trial court granted, The Supreme Court reversed.
Regarding the issue of foresceability, the court explained: "In pursuing this inquiry, it is well to
remember that ‘foreseeability is not to be measured by what is more probable than not, but
includes whatever is likely enough in the setting of modern life that a reasonably thoughtful
[person] would take account of it in guiding practical conduct.’ [Citation.] One may be held
accountable for creating even "the risk of a slight possibility of injury if a reasonably prudent
[person] would not do so." [Citations.] (id, at pp. 57-58.) As the Scott court explained, in
analyzing duty, the court's task:

is not to decide whether a particular plaintiff's injury was reasonably

foreseeable in light of a particular defendant's conduct, but rather to

evaluate more generally whether the category of negligent conduct

at issue is sufficiently likely to result in the kind of harm experienced

that liability may appropriately be imposed on the negligent party."

[Citation.] Viewed in this light, the question of foreseeability in a

"duty" context is a limited one for the court, and readily contrasted

with the fact-specific foreseeability questions bearing on negligence

(breach of duty) and proximate causation posed to the jury or trier

of fact. [Citation.] (Scott, supra, at p. 516.)

California Civil Code § 1714(a), derived from the common law and unchanged in our

law since 1872, reads in part as follows: "Every one is responsible, not only for the results of

his or her wrongful acts, but also for an injury occasioned by his or her want of ordinary care or

skill in the management of his or her property or person, except so far as the latter has, willfully

or by want of ordinary care, brought the injury upon himself or herself." (Witkin, supra, § 833.)

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In Rowland v. Christian, supra, 69 C.2d 108, the court reexamined negligence liability
and concluded that this general section is the foundation of California negligence law.
Rephrased, it establishes the general principle that "(a)Il persons are required to use ordinary
care to prevent others being injured as the result of their conduct." And, “in the absence of
statutory provision declaring an exception to the fundamental principle..., no such exception
should be made unless clearly supported by public policy." (Id. at 112.)

"The standard of care required of the reasonable person when dealing with ... dangerous
articles is so great that a slight deviation therefrom will constitute negligence.” (Warner v.
Santa Catalina Island Co. (1955) 44 C.2d 310, 317.)

Here, defendant first argues that it owed and breached no duty to plaintiff as plaintiffs
lack evidence of what AMOROSO knew or should have known concerning the presence of
asbestos in the construction-related debris which included thermal insulation, drywall mud, and
fireproofing. Naturally, plaintiffs are not in a position to demonstrate what AMOROSO
actually knew more than 30 years ago, but they are not required to do so. What plaintiffs can
do, and have done, is to produce evidence that AMOROSO ought to have known whether

asbestos was present in the materials it was disturbing and exposing plaintiff to. Dr. Cohen, in

paragraphs 12-15 of his declaration, articulates how there was a widespread understanding,
dating from the 1930's and 1940's and even carlier, that there was a general hazard posed by
dusts in industrial settings and a further recognition that “{t]he only safe way for an employer is
to regard all dusts in industry as a hazard” absent a determination otherwise. In view of this, to
the extent that any contractor was unaware of the composition of dust which might be created or
encountered, it ought to have sought out such information.

Additionally, regardless of the kind of dust, AMOROSO should have protected its own

employees and in the process would also have protected Mr. ROSS. Dr. Cohen explains, in
paragraphs 15, 21 and 22 of his declaration, that the information regarding the hazards
associated with dust exposure was readily available to companies working in the construction
trades, including AMOROSO by at least by the mid-1930s. As a California employer,
AMOROSO was subject to the California General Industry Safety Orders and therefore should

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have educated its employees about the precautions to be taken around workplace dust, by the
1960s at the latest.
A disputed issue of material fact has been demonstrated as to AMOROSO’s duty of care
and its breach.
c. DEFENDANT HAS FAILED TO MEET ITS BURDEN THAT THE
SOPHISTICATED USER DEFENSE PRONOUNCED IN JOHNSON v.

AMERICAN STANDARD, INC. (2008) 43 CAL.4ATH 56 APPLIES TO THE
CASE AT BAR

When asserting an affirmative defense as defendant does here, defendant bears the
burden of producing evidence sufficient to establish all elements of the affirmative defense.
(C.C.P. § 437(p)(2).) AMOROSO failed to produce such evidence as demonstrated below.

The sophisticated user defense was recognized by the California Supreme Court in the

case of Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, (“Johnson”) The case

involved a plaintiff who was a trained and certified heating ventilation and air conditioning
(HVAC) technician. He was injured when heat from a welding torch he was using caused “R-
22"--a refrigerant gas in the air conditioning system he was working on-- to decompose into
phosgene gas, a hazardous toxic substance. Plaintiff sued American Standard, the
manufacturer of the air conditioning system, alleging both strict liability and negligence, with
each cause of action grounded in a claim that the manufacturer failed to provide adequate
warning of the hazard posed by the heating of the R-22 gas. The Johnson court upheld the trial
court’s grant of summary judgment based on a factual determination that plaintiff had been a
sophisticated user with respect to the refrigerant gas and a legal holding that “[a] manufacturer

is not liable to a sophisticated user of its product for failure to warn of a risk harm or danger if

the sophisticated user knew or should have known of that risk harm or danger”. (Id., at 71,
emphasis added.) Here, defendant has produced no evidence whatsoever that Mr. ROSS had
actual knowledge of any risk associated with asbestos at any relevant time.

Johnson of course recognized an alternate means of establishing status as a sophisticated
user-- the “should have known standard.” (Id.) But defendant likewise failed to produce

evidence sufficient to demonstrate that plaintiff “should have known” that there were health

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hazards associated with asbestos generally or, more particularly, that plaintiff “should have
known” that the fireproofing defendant handled and disturbed was hazardous.

The facts of Johnson provide useful illustrations of how it can be demonstrated that a
product user should have known of the hazards of a product. The evidence in Johnson revealed
that the plaintiff was required to have been certified by the EPA and that the EPA required
certified HVAC technicians to understand the decomposition products of refrigerants under
high temperatures, In addition the court noted that the study guide that comprised part of an
HVAC technician’s training contained specific information that refrigerant in contact with high
heat can form dangerous substances, Moreover, there was evidence that the Material Safety
Data Sheets (“MSDS”) for R-22 gas—which plaintiff acknowledged having received and
read~contained explicit warnings that heating the material could lead to the release of phosgene
gas. Finally, the court noted expert testimony, apparently undisputed, that there was wide
knowledge among HVAC technicians that when R-22 is heated it can release phosgene gas.

Defendant here failed to make an evidentiary showing commensurate with any of the
foregoing examples. There was no showing that plaintiff was required by any agency or entity
to have any understanding of the hazards associated with the materials with which he worked.
Defendant, in its examination of plaintiff regarding his training declined to explore what, if
anything, he was taught about asbestos hazards. Although defendant argues the publication,
The Asbestos Worker, contained information about asbestos, it ignores the fact that plaintiff
testified he did not read any of the issues . There was no evidence that MSDS sheets were ever
provided to plaintiff at any relevant time nor any evidence that plaintiff ever received any
information by any other means advising him of health hazards associated with asbestos.

Nor did defendant offer other evidence, as was presented in Johnson, that hazards
concerning the product in question were well known among members of plaintiff’s class. In
Johnson, in addition to evidence regarding training, testing, certification and distribution of
warnings via Material Safety Data Sheets, there was express testimony via declaration of a
defense expert that “it was ‘widely known among HVAC technicians’ that when R-22 is heated

it can decompose into toxic substances including phosgene gas.” (Id., at 74.) Here however,

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION Tt NDANT S.J. AMOROSO CONSTRUCTION
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defendant, rather than making a showing that there was widespread knowledge of hazards on
the part of other workers like plaintiff, defendant instead presented evidence purporting to show
knowledge on the part of third parties, the union with which plaintiff was affiliated and one
higher up individual within the union.

Even accepting defendant’s premise that plaintiffs union had knowledge concerning
asbestos hazards as of at least 1957, defendant failed to demonstrate that the union’s knowledge
was conveyed to its rank-and-file in an effective way. Defendant did not demonstrate that the
union undertook to train, test, or certify its members regarding asbestos hazards. Defendant did
not show that plaintiff's union promulgated work rules addressing asbestos hazards or
negotiated contracts with plaintiff's employers mandating enforcement of safe asbestos
handling practices. The only evidence offered by defendant as to why plaintiff should be
deemed “sophisticated” is that the union produced a few issues of its monthly magazine—-a
magazine plaintiff stated in sworn testimony that he did not read-- and meetings which
defendant does not even attempt to prove plaintiff attended, that spoke to the issue of health
risks associated with asbestos insulation. Defendant failed to demonstrate how plaintiff, or
others situated similarly to him, was to have come to learn of information in articles he never
had an opportunity to read and meetings he never attended.

D. THE UNION HAS NO EXPRESS DUTY TO PROVIDE FOR SAFETY IN
THE WORKPLACE

In Johnson, the Supreme Court emphasized that pursuant to various California Code
Regulations that employers are required to train and educate their employees about the
chemicals and dangers to which they may be exposed on the job, (Id, at 62.)

The dangers and risks associated with R-22 are noted on Material
Safety Data Sheets (MSDS's). (Cal.Code Regs., tit. 8, § 5194, subd.
(g)(1), (2}.) The purpose of MSDS's is to inform those who may
come inte contact with potentially hazardous chemicals about their
dangers. (See, Cal.Code Regs., tit, 8. § 5194, subd. (g).) Employers
are required to use the MSDS to train and educate their employees
about the chemicals and dangers to which they may be exposed on
the job, (See, Cal.Code Regs., tit, 8, § 519, subd. (h).) Among other
things, employers are required to telfemployees where they can. find
the MSDS's, how to read them, how to detect the presence of
dangerous materials, and how to protect against possible health

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hazards from those materials. (Cal.Code Regs., tit, 8, § 5194, subd.
(b)(2)(c), (D), (E), (F).)
But a union has no such obligation or duty.
There is no express duty of care a union owes to its members under a negligence cause
of action. (Steelworkers v. Rawson (1990) 495 U.S. 362, 372-373.) While unions do have a
duty of fair representation (Vaca v. Sipes (1967) 386 U.S. 171, 190), this duty does not
encompass an implied duty of care to furnish a safe workplace.
At most, a union may acquire such a duty if it expressly assumes responsibility for it
under a contractual arrangement with an employer. Only then do claims of negligence have any

possible merit, (International Brotherhood of Electrical Workers, AFL-CIO v. Hechler (1987}

481 U.S. 851, 861.) Additionally, the employee must have relied on that duty. (Rawson,
495 U.S. at 363.) In the absence of an express assumption and reliance, a negligence claim will
not lie.

In International Brotherhood, a union member claimed her union breached a duty of care
to provide her with a safe workplace. The Supreme Court stated that the key inquiry for
ascertaining if a cause of action existed was to look at the contract and determine what duties
were taken on by each of the parties, and the scope of these duties. (International Brotherhood,
481 U.S. 851 at 862.)

In as much as defendant has failed to show that plaintiff knew the hazards of asbestos,
or that he ought to have known because he received training in the subject, defendant’s
argument appears to be that plaintiff ought to have known because the union ought to have
trained him. Defendant offers no evidence that the union by its charter or contract with plaintiff
or by any other means was required to assure that plaintiff became sophisticated about the
hazards of asbestos. Plaintiff cannot be charged with constructive knowledge based merely
upon a judgment regarding what his union, in a perfect world, ought to have done.

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E. THE SOPHISTICATED USER DEFENSE IS NOT A COMPLETE DEFENSE
TO PLAINTIFFS’ NEGLIGENCE CAUSE OF ACTION

Even if Mr. ROSS were considered a sophisticated user, such circumstance provides no
defense other than to a cause of action based upon an alleged failure to warn. A plaintiff's
sophistication does not relieve a defendant from any duty to exercise reasonable care otherwise.

The California Supreme Court, in describing the scope of the sophisticated user defense

in Johnson v, American Standard, Inc, (2008) 43 Cal 4th 56, (“Johnson”), could not have been

more succinct or clear: “A manufacturer is not liable to a sophisticated user of its product for
failure to warn of a risk harm or danger if the sophisticated user knew or should have known of
that risk harm or danger.” (Johnson, supra, at 71, emphasis added.) While the court recognized
that the sophisticated user defense could be applied to both strict liability and negligence, the
basis for so holding was that “there is little functional difference between the two theories in the
failure to warn context.” (ld., emphasis added.)

Not only is the scope of the sophisticated user doctrine plainly and repeatedly stated by
the Johnson court, the court’s discussion of the policy rationale underlying the defense is only
sensible in the context of failure to warn. The Johnson court describes the defense as an
outgrowth from Restatement Second of Torts, section 388 and the obvious danger rule. (Id., at
65.) Each of these doctrinal underpinnings share the identical rationale: there is no need to
warn about risks or dangers that are already known. (Id., at 66.)

It does not follow that the sophisticated user defense relieves a defendant of all duty to
exercise reasonable care outside the context of providing a warning. Plaintiffs’ claim here is
not that Mr. ROSS was injured because defendant failed to warn him of a hazard, but because
defendant’s employees engaged affirmatively in negligent work practices that exposed him to
asbestos: AMOROSO employees failed to isolate their work as they handled and disturbed
asbestos-containing materials either by erecting physical barriers to prevent the movement of
dust or by excluding others from being in proximity and thus exposed plaintiff to the dust they
negligently generated. For defendant’s argument that it is shielded by the “sophisticated user”

defense, to be effective beyond the failure to warn context, would require that the affirmative

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defense be widened to provide that a “sophisticated user” is owed no duty of care in any
circumstance and that defendant had carte blanche to abandon the exercise of reasonable care
and could conduct itself without regard to whether its activities created injurious exposures.
Neither Johnson nor any of its progeny have so defined the sophisticated user defense and such
a wholesale abandonment of the principle of duty to exercise reasonable care, and is not
remotely supported by the policies underlying the limited relief from a duty to warn-- the sole
immunity contemplated by the sophisticated user doctrine.

F. DEFENDANT’S ALTERNATIVE REQUEST FOR SUMMARY
ADJUDICATION SHOULD BE DENIED

Plaintiffs have dismissed claims for negligence (products) and products liability against
defendant leaving only the premises owner/contractor liability claim. Defendant’s argument
with respect to its negligence as a contractor fails for the same reasons argued above. Thus,
defendant’s failure to shift the burden as to this claim necessitates a denial of the motion for
summary adjudication regarding the same.

CONCLUSION

For all of the foregoing reasons, plaintiffs respectfully request this Court deny
AMOROSO's Motion for Summary Judgment or the alternative Motion for Summary
Adjudication.

Dated: April 25, 2013 BRAY TON*#PURCELL LLP

By: /s/ Ashley J. Benson
Ashley J. Benson
Attorneys for Plaintiffs

[To comply with Department 503's rule regarding tentative rulings, you must email
the Court notice if you wish to contest the tentative ruling at the following email address:
contestasbestostr@sftc.org. A copy of any email notification to Department 503 must also

be sent ¢o our firm at contestasbestostr@braytonlaw.com.]

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