Motion-Secondary: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                1 | MARK S. KANNETT (SBN 104572)
EMILY D. BERGSTROM (SBN 191395)
2 MARCIA RAYMOND (SBN 215655) ELECTRONICALLY
3 | LYSLE J. KAPP (SBN 223907) FILED
BECHERER KANNETT & SCHWEITZER Superior Court of California,
4 | 1255 Powell Street County of San Francisco
Emeryville, CA 94608 MAR 15 2010
5 || Telephone: (510) 658-3600 Clerk of the Court
Facsimile: (510) 658-1151 BY: ALISON AGBAY
6 Deputy Clerk
7 | Attorneys for Defendant
DILLINGHAM CONSTRUCTION N.A., INC.
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10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
1 COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION
12 | JOYCE JUELCH and NORMAN JUELCH, CASE NO. CGC 09-275212
SR.,
13 REPLY IN SUPPORT OF DEFENDANT
Plaintiffs, DILLINGHAM CONSTRUCTION N.A.,
14 ING.’S MOTION FOR SUMMARY
15 | vs. JUDGMENT
16 | ASBESTOS DEFENDANTS (B“P) As Date: March 18, 2010
Reflected on Exhibits B, B-1, C; and DOES Time: 9:30 a.m.
17 | 1-8500, Dept.: 220
Judge: Hon. Harold E. Kahn
18 Defendants. Triat Date: April 5, 2010
19 Complaint May 20, 2009
Filed:
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I
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22 I
INTRODUCTION
23 Plaintiffs do not dispute any of the facts set forth in the Separate Statement of
Kennett & 24 Undisputed Material Facts filed by defendant Dillingham Construction, N.A., Inc.
Schweitzer
m 25 (‘Dillingham’) except for Fact No. 8, which states that plaintiffs’ discovery responses
Pry CA 26 | were factually devoid. Plaintiffs’ discovery responses failed to identify any witnesses
$20-658-3600
27 | other than plaintiffs, who admitted they were unable to identify the asbestos content of
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REPLY IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC.’S MOTION FOR SUMMARY JUDGMENTBecherer
Kannett &
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1255
Powell St.
Emeryville, CA
94608
510-658-3600

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any products removed or installed by Dillingham in 1982 and 1983. Plaintiffs’ discovery
responses failed to contain any facts from which one could determine the asbestos
content of such products. Plaintiffs’ responses were devoid of facts that would
demonstrate that plaintiffs could establish the necessary element of causation.
Dillingham has satisfied its initial burden on summary judgment. In response, plaintiffs
have submitted for the first time two declarations in an effort to create a triable issue of
material fact as to the asbestos content of gaskets removed and installed by Dillingham
at the Sheil and Tosco oi refineries in 1982 and 1983. The declarations are
inadmissible and fail to create a triable issue of material fact. Dillingham is entitled to

summary judgment as a matter of law and its motion should be granted.

I.
ARGUMENT

The courts have repeatedly recognized that the purpose of summary judgment is
to eliminate sham claims and avoid the considerable time and expense of needless

trials:

Summary judgments took behind the pleadings to determine if the claims

or defenses of a party are sham or without any evidence to support the

claim... We recognize that summary judgment procedures are viewed as

‘drastic’; however, the purpose of a summary judgment is to expedite

litigation by avoiding needless trials.

Gitano Group, inc. v. Kemper Group (1994) 26 Cal.App.4"" 49 (citations

omitted); see also Starkman v. Mann Theaters Corp. (1991) 227

Cal.App.3d 1491, 1496.
“A summary judgment is proper to avoid sham and baseless claims and pleadings.
Scherer v. Mark (1976) 64 Cal.App.3d 834, 843.

“A motion for summary judgment must be granted if all of the papers submitted
show there is no triable issue as to any material fact and the moving party is entitled to a
judgment as a matter of law.” Andrews v. Foster Wheeler, (2006) 138 Cal.App.4" 96,
101. A defendant seeking summary judgment can satisfy its burden of production by

making a prima facie showing of the nonexistence of any triable issue of material fact.

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REPLY IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC.’S MOTION FOR SUMMARY JUDGMENTBecherer
Kannett &
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Andrews, 138 Cal.App.4" at 101 citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4"
826, 854. Once a defendant has satisfied its burden through reliance upon affirmative
evidence, such as deposition testimony, or through factually devoid discovery responses,
the burden shifts to the opposing party, which is then subjected to a burden of production
of his own to make a prima facie showing of the existence of a triable issue of material

fact. Id. If the opposing party fails to meet this burden, summary judgment is proper.

A. Dillingham has satisfied its initial burden on summary judgment.

Plaintiffs’ Response to Dillingham’s Separate Statement of Undisputed Facts
concedes that there is only one fact in dispute: whether plaintiffs’ answers to
Dillingham’s discovery were factually devoid. See Plaintiffs’ Response to Defendant
Dillingham Construction, N.A., Inc.’s Separate Statement of Undisputed Material Facts,
Undisputed Material Facts and Supporting Evidence & Plaintiffs’ Response/Evidence
(‘Plaintiffs’ SS Response”) ff] 1-8.

A review of plaintiffs’ responses to special “all facts” discovery propounded by
Dillingham evidences that plaintiffs’ responses are, in fact, factually devoid. For
instance, Special Interrogatory No. 12 requests that plaintiffs identify each and every
witness who has knowledge to support their allegations of exposure to asbestos-
containing products removed or installed by Dillingham. First Set of Special
Interrogatories to Plaintiff(s) by Defendant Dillingham Construction, N.A., Inc. (“Spec
Rogs’), Special Interrogatory No. 12 [5:13-22], attached as Exhibit E to Declaration of
Marcia L. Raymond filed concurrently with Dillingham’s moving papers. In response,
plaintiffs identified only themselves. Plaintiffs’ Response to Defendant Dillingham
Construction, N.A., Inc.’s Special Interrogatories (“Plaintiffs’ Rog Responses”),
Response to Interrogatory No. 12 [4:23-25], attached as Exhibit G to Declaration of
Marcia L. Raymond. Plaintiffs concede their inability to identify the asbestos content of
products that they observed Dillingham remove or install. Plaintiffs’ SS Response, If] 1-
6. ‘Similarly, Dillingham’s Special Interrogatory No. 11 requested plaintiffs “state all facts”

in support of their exposure claims against Dillingham. Spec Rogs”, Special
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REPLY IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC.’S MOTION FOR SUMMARY JUDGMENTBecherer
Kannett &
Schweitzer

1255
Powell 8
Emeryville, CA
94608

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Interrogatory No. 11 [5:7-12]. Plaintiffs’ response is devoid of facts establishing that
plaintiff was exposed to asbestos-containing products removed or installed by
Dillingham. The response failed to identify the manufacturer of any of material removed
or installed by Dillingham. Plaintiffs’ Rog Responses, Response to Interrogatory No. 11
[4:8-15]. It failed to indicate any facts by which one could determine whether that the
gasket materials referenced were asbestos-containing products. It failed to even state
that plaintiffs believed that any such products contained asbestos! It also failed to state
how plaintiff became exposed to asbestos while wearing breathing protection at Shell
and Tosco in 1982 and 1983. Special Interrogatory No. 8 propounded by Dillingham
requested that plaintiff identify the manufacturer of the products to which plaintiff was
allegedly exposed as a result of work performed by Dillingham employees. Spec Rogs,
Special Interrogatory No. 8 [4:17-22]. Plaintiffs’ response dated February 2010, well
after plaintiff's depositions had concluded, stated that plaintiffs did not recall the
manufacturer of any such products. Plaintiffs’ Rog Responses, Response to Special
Interrogatory No. 8 [3:14-15]. Such responses are clearly devoid of facts sufficient to
demonstrate that plaintiffs can prove the necessary element of causation.

Plaintiffs have to produce a single document evidencing that plaintiff was exposed
to an asbestos-containing product removed or installed by Dillingham in discovery.
Plaintiffs’ SS Response, ff] 1-6. Counsel for Dillingham had reviewed the documents
provided by plaintiffs prior to filing the instant motion for summary judgment. Plaintiffs’
Opposition fails to point to a single document that they produced or referenced and that
they contend supports their claims against Dillingham. Instead, for the first time,
plaintiffs produced the Declaration of Joyce Juelch and Charles Ay in support of their
claims. Such documents do not negate the fact that plaintiffs’ prior discovery responses.
Indeed, as addressed below, these two declaration are insufficient to support plaintiffs’
claims. Plaintiffs’ factually devoid discovery responses and their admissions made in
deposition and written discovery were sufficient to satisfy Dillinghar’s initial burden on
summary judgment. The burden has shifted to plaintiffs to create a triable issue of

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REPLY IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC.’S MOTION FOR SUMMARY JUDGMENTBecherer
Kannett &
Schweitzer

1255
Powell St.
Emeryville, CA
94608
510-658-3600

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material fact. Plaintiffs have failed to do so and Dillingham is entitled to summary

judgment as a matter of law.

B. Plaintiffs’ purported evidence is inadmissible and insufficient to create a
triable issue of material fact as to the issue of causation.

The courts have recognized the declarations that lack adequate foundation

and contain little more than speculation fail to create a triable issue of fact:

An expert's speculations do not rise to the status of contradictory evidence,
and a court is not bound by expert opinion that is speculative or
conjectural. Plaintiffs cannot manufacture a triable issue of fact through
use of an expert opinion with self-serving conclusions devoid of any basis,
explanation, or reasoning.

McGonnell, 98 Cal.App.4"" at 1106.

. Indeed, plaintiff's expert Charles Ay has conceded that non-asbestos-containing

gaskets were being used in refineries in the late 1970’s, before plaintiff worked at the
Shell oil refinery in 1982 and the Tosco refinery in 1983. Deposition of Charles Ay
dated February 17, 2005, 111:3-9, attached as Exhibit 1 to Declaration of Lysle J. Kapp
In opposition to likely summary judgment, plaintiff has produced for the first time
the Declarations of Joyce Juelch and Charles Ay. Dillingham has objected to the
admission of these declarations. See DEFENDANT DILLINGHAM CONSTRUCTION
N.A, INC.'S OBJECTIONS TO DECLARATION OF JOYCE JUELCH and DEFENDANT
DILLINGHAM CONSTRUCTION N.A., INC.’S OBJECTIONS TO DECLARATION OF
CHARLES AY, each of which is incorporated by reference as if set forth at length

herein. These declarations are inadmissible and fail to create a triable issue of fact.

Ub.
CONCLUSION
Plaintiffs’ factually devoid discovery responses and undisputed admissions in
deposition are sufficient to satisfy Dillingham’s burden on summary judgment. Plaintiffs’
Opposition papers and accompanying declaration fail to create a triable issue of material

fact. Plaintiffs have failed to meet their burden as the conclusory declarations they

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REPLY IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC.’S MOTION FOR SUMMARY JUDGMENT1 | provided are inadmissible and contain pure speculation. Plaintiffs cannot show that the
2 | gasket materials they contend were removed and installed by Dillingham on one occasion
3 | at the Shell oil refinery in 1982 and on one occasion at the Tosco refinery in 1983
4 1 contained asbestos. Absent such a showing, Dillingham is entitled to summary judgment
5 | as a matter of law. Dillingham’s summary judgment should be granted.
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7 Dated: March 15, 2010 BECHERER KANNETT & SCHWEITZER
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By: o
10 Lysie(. Kapp
1 Attorneys for Defgngdant
1 DILLINGHAM C STRUCTION N.A., INC.
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REPLY IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A,, INC.’S MOTION FOR SUMMARY JUDGMENTBecherer
Kannett &
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1255,
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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

|, Sonjua R. Fisher, declare that | am, and was at the time of service of the
documents herein referred to, over the age of 18 years, and not a party to the action;
and | am employed in the County of Alameda, State of California. My business address
is 1255 Powell Street, Emeryville, California 94608.

On March 15, 2010, | electronically served the document(s) via LexisNexis File &
Serve described as:

REPLY IN SUPPORT OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S
MOTION FOR SUMMARY JUDGMENT

on the recipients designated on the Transmission Receipt located on the LexisNexis File
& Serve website.

| declare under penaity of perjury pursuant to the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on March
15, 2010, at Emeryville, California.

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REPLY IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC.’S MOTION FOR SUMMARY JUDGMENT