On December 17, 2010 a Motion,Ex Parte was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Preview
28 Walsworth, Franklin, Bevins & McCall, LLP arvoanessar Lait JENNIFER A. CORMIER, State Bar No. 177109 jcormier@wfbm.com HILLARY H. HUTH, State Bar No. 215536 hhuth@wfbm.com ELECTRONICALLY WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP FILED 601 Montgomery Street, Ninth Floor Superior Court of California, San Francisco, California 94111-2612 County of San Francisco Telephone: (415) 781-7072 FEB 20 2013 Facsimile: (415) 391-6258 Clerk of the Court Attorneys for Defendant BY CAROL oa sepuly clerk DURO DYNE CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY FOR SAN FRANCISCO ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731 Plaintiffs, Date: May 8, 2013 Time: 9:30 a.m. v. Dept.: 503 Judge: Hon. Teri L. Jackson C.C. MOORE & CO. ENGINEERS; et al., SEPARATE STATEMENT OF Defendants. UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT DURO DYNE CORPORATION'S MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS' CLAIM FOR PUNITIVE DAMAGES Pursuant to California Code of Civil Procedure section 437c(b), defendant Duro Dyne Corporation (“Duro Dyne”) hereby submits the following Separate Statement of Undisputed Material Facts in support of its Motion for Summary Adjudication of Plaintiffs’ punitive damages claim: UNDISPUTED MATERIAL FACTS AND OPPOSING PARTY’S RESPONSE AND SUPPORTING EVIDENCE: SUPPORTING EVIDENCE: 1, On December 30, 2011, Robert Ross and Jean Ross (“plaintiffs”) amended their Second Amended Complaint for personal injury and loss of consortium in California Superior Court for the County -1- SEPARATE STATEMENT OF UNDISPUTED MATERIAL PACTS IN SUPPORT OF DEFENDANT DURO DYNE CORPORATION'S MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS! CLAIM FOR 2277995.1 3413-3294]yD o 8 13 15 28 Walsworth, Franklin, Bevis & MeCalt, LLP UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE: OPPOSING PARTY’S RESPONSE AND SUPPORTING EVIDENCE: of San Francisco alleging that Robert Ross (“plaintiff”) developed an asbestos- related illness from asbestos exposure through the actions of various defendants to substitute Duro Dyne for “Doe” defendants 13 and 1013. Plaintiffs’ Amendment to Second Amended Complaint, attached to Declaration of Hillary H. Huth (hereinafter referred to as the Huth Declaration) as Exhibit A. Plaintiffs allege that plaintiff sustained injury as a result of asbestos exposure and asserts causes of action for negligence and strict liability as well as punitive damages as to all defendants. Plaintiff’s Complaint; a Request for Judicial Notice is filed herewith. On March 2, 2012, Duro Dyne answered the causes of action alleged against Duro Dyne contained in plaintiffs’ complaint. Duro Dyne’s Answer, attached to the Huth Declaration as Exhibit B. On April 9, 2012, Duro Dyne served plaintiffs with a set of 33 Special Interrogatories. Duro Dyne’s Special Interrogatories to Plaintiffs, attached to the Huth Declaration as Exhibit C. Plaintiffs claim Mr. Ross was exposed to asbestos from products manufactured by Duro Dyne when he worked as an insulator at various jobsites between 1967 and 1977. Exhibit C No. 1, Plaintiffs’ Responses -2- SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT DURO DYNE CORPORATION'S MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS’ CLAIM FOR 2277995 1 3413-3.29411 UNDISPUTED MATERIAL FACTS AND OPPOSING PARTY’S RESPONSE AND 2 SUPPORTING EVIDENCE: SUPPORTING EVIDENCE: 3 to Duro Dyne’s Special Interrogatories, No. 1, attached to the 4 Huth Declaration as Exhibit D. 5 6. Duro Dyne asked plaintiffs to identify all | 6. 6 witnesses who support their claim for punitive damages. In response, plaintiff 7 identified himself and Persons Most Knowledgeable of Duro Dyne, past and 8 present. 9 Exhibit C No. 14. Exhibit D, No. 14. 10 7. Although requested, plaintiffs failed to 7. i identify the contact information for any alleged witness with information to 2 support their punitive damages claim as 1B they did not identify any specific living witnesses other than Mr. Ross. 4 5 Exhibit C No 14. Exhibit D No. 14. 6 8. Duro Dyne asked plaintiffs to describe 8. each alleged violation of any statute, q ordinance or regulation by Duro Dyne, but in response plaintiffs listed all 8 applicable statutes, ordinances and regulations without providing any 9 specific information regarding the alleged 20 violations. 21 Exhibit C No 15. Exhibit D Nos. 1 and 15. 22 9, Although asked, plaintiffs failed to 9, 23 identify by name and titled the person 24 who violated any statute, ordinance or regulation, and the specific conduct in 25 violation of the statute. 26 Exhibit C No 21, Exhibit D Nos. 1 7 and 21, 28 Mecal LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT DURO arvoaneisartsir DYNE CORPORATION'S MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS' CLAIM FOR 22779951 3413-3.294)Bw N 28 Walsworth, Franklin, Bevins & McCall, LLP arruaveys aria UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE: OPPOSING PARTY’S RESPONSE AND SUPPORTING EVIDENCE: 10. Although asked, plaintiffs failed to identify by name and title each officer or agent of Duro Dyne who plaintiffs claim had advanced knowledge and acted in conscious disregard such that plaintiffs are entitled to punitive damages. Exhibit C No 17. Exhibit D No. 17. 10. 11. Although requested, plaintiffs failed to identify any specific documents which support their claim for punitive damages against Duro Dyne, and instead include a laundry list of documents allegedly relevant to the case as a whole. Exhibit C No 18. Exhibit D Nos. 8 and 18. 11. 12. Although requested, plaintiffs failed to identify by name and title the officer, director agent of Duro Dyne who made any representations to plaintiff regarding the safety of any Duro Dyne products. Exhibit C No 19. Exhibit D No. 19. 12. 13. Plaintiffs did not provide any specific facts or details that supports their punitive damages claim; that Duro Dyne engaged in deceptive acts to plaintiff's detriment or in conscious disregard of his safety; or that Duro Dyne failed to warn plaintiff of any dangers or hazards that Duro Dyne knew of at the time of plaintiff's exposure. Exhibits C and D, Nos. 14 to 33. 13. 14, On April 9, 2012, Duro Dyne served plaintiffs with Requests for Production of Documents. Duro Dyne’s Request for Production 14. 4. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT DURO DYNE CORPORATION'S MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS' CLAIM FOR 2277995.4 3A413-3.294128 Walsworth, Franklin, Bevins & MeCall, LLP UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE: OPPOSING PARTY’S RESPONSE AND SUPPORTING EVIDENCE: of Documents, attached to the Huth Declaration as Exhibit E. 15. Requests for Production Nos. 15 through 22 request that plaintiffs produce any and all documents that support their contention that Duro Dyne either acted in conscious disregard of his safety or support his cause of action for fraud, conspiracy and/or concert of action that entitles plaintiffs to punitive damages from Duro Dyne. Duro Dyne’s Request for Production. of Documents, attached to the Huth Declaration as Exhibit E. 15. 16. In response to Requests for Production Nos. 15 through 22, plaintiffs referred to their response to Request for Production No. 1, which stated a generic laundry list of documents that purportedly support all of their claims, but failed to actually identify any specific document that supports their claim for punitive damages. Exhibit E. Plaintiffs’ Responses to Duro Dyne’s Request for Production of Documents, attached to the Huth Declaration as Exhibit F. 16. 17. On April 9, 2012, Duro Dyne served plaintiffs with Judicial Council Form Interrogatory 17.1. Form Interrogatory 17.1(b)-(d) requires plaintiffs to state all facts, witnesses, and documents serving as the basis to all Requests for Admission responses which do not amount to an unqualified admission. Duro Dyne’s Form Interrogatories, attached to the Huth Declaration as 17. Se SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT DURO DYNE CORPORATION'S MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS' CLAIM FORWalworth, Feaaklin, Bevins & ‘McCall, LL. arvionansa? Line OPPOSING PARTY'S RESPONSE AND | SUPPORTING EVIDENCE 18. In-response to Dura Dyne’s Form 18. Interragatories, plaintiffs’ responses consisted of a restatement of the allegations contained in their responses to Special Interrogatories. Although Form Interrogatory. 17.1(b) seeks tacts, plaintiff's responses supplied little more. | than hyperbolic accusation and bald assertions. In a conclusory fashion, plaintiffs insist that Duro Dyne knew of ihe potential hazards associated with asbestos, but intentionally failed to warn plaintiff, Plaintiffs submit-no factual support for this position. Moreover, the numerous articles and studies.that plaintiffs cite relating to heath hazards associated with exposure to asbestos which have appeared in the medical and scientific literatures since the turn of the century are not identified, specified or defined, Plaintiffs’ Responses te Duro Dyne’s Form Interrogatories, attached to the Huth Declaration as Exhibit H. 19. In response to Duro Dyne’s 19, comprehensive written discovery efforts, plaintiffs have provided no admissible evidence which supports their-claim for punitive damages against Duro Dyne. Exhibits AHL | Dated: February 19, 2013 m dullcd BEVINS & McCALL, LLP aN A. CORMI HILLARY H. HUTH Attomeys for Defendant DURO DYNE CORPORATION Ge ep SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DLFENDANT DURO DYNE CORPORATION'S MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS' CLAIM FORWalnworth, Franklin, STrURNEEE AT GE PROOF OF SERVICE Lam employed in the County of San Francisco, State.of California. T anvover the age of 18 and not a party to the within action. My business address is 601 Montgomery Street; Ninth Floor, San Francisco, California. 94111-2612. On February 20, 2013, J served the within document(s) deseribed as: SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT DURO DYNE CORPORATION'S MOTION FOR SUMMARY ADIUDICATION OF PLAINTIFFS' CLAIM FOR PUNITIVE DAMAGES on the interested parties in this action as stated below: Brayton Purcell LLP ALL DEFENSE COUNSEL 222 Rush Landing Road P.O. Box 6169 Novato, CA 94948 i] (BY ELECTRONIC FILING/SERVICE) I provided the document(s) listed above electronically to the LexisNexis. File & Serve Website to the parties on the Service List maintained on the LexisNexis Pile & Serve Website for this case. If the document is provided to LexisNexis electronically by 3:00 p.m., then the document will be deemed served.on the date that it was provided to LexisNexis. A copy of the "LexisNexis File & Serve Filing Receipt" page will be maintained with the original document(s) in our office. 1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 20, 2013, at San Francisco, California. B277995.4 S4E333.2947