Document for JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                BRAYTON@PURCELL LLP

ATTORNEYS AT LAW
222 RUSH LANDING ROAD.

PO ROX 6169
NOVATO, CALIFORNIA 92948-6169

(415) 898-1355

SO we IN KH BR wD =

N ROR; RR NN meee
RBROQREREBE SS SREDR BREAKS

ALAN R. BRAYTON, ESQ,, S.B. #73685
DAVID R. DONADIO, ESQ,, S.B. #154436
SIDDHARTH JHANS, ES SQ., S.B. #254165
BRAYTON’ PURCELL LL

Attorneys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169
wins 898-1555

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAR 11 2010
Clerk of the Court

entative Ruling Contest Email: contestasbestos TR@bravtonlaw.com BY: LUCIA RAMOS

Deputy Clerk

Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCE JUELCH and ) ASBESTOS
NORMAN JUELCH, SR., ; No. CGC-09-275212
Plaintiffs, ) PLAINTIFFS’ RESPONSE TO.
DEFENDANT DILLINGHAM
vs. CONSTRUCTION, N.A., INC,’S
SEPARATE STATEMENT OF
ASBESTOS DEFENDANTS (BP) UNDISPUTED FACTS
Date: March 18, 2010

Time: 9:30 a.m,

Dept: 220, Hon, Harold E. Kahn
Trial Date: April 5, 2010

Action Filed: May 20, 2009

Plaintiffs hereby submit the following responses t0 defendant DILLINGHAM

CONSTRUCTION, N.A., INC.’s Separate Statement of Undisputed Facts in Support of Motion

for Summary Judgment, with reference to plaintiffs’ supporting evidence disputing such

statements.

UNDISPUTED MATERIAL FACTS AND
ALLEGED SUPPORTING EVIDENCE

PLAINTIFFS’ RESPONSE/EVIDENCE

1. The deposition systematically went

| through Plaintiff's Social Security records

and her answers to standard interrogatories
as well as, those of her husband, Norman
Juelch, and her ex-husband, John
Chambers. At each job site, she was
specifically asked to identify her employer,
and any other trades and outside contractors

KAlnjured O8688ipiduss-DILGHM. wed

1, Undisputed but irrelevant. Defendant has
not cited to any specific portion of the
transcript of the plaintiff, Norman Juelch, or

John Chambers in support of this “fact,” in
violation of C.R.C. 3.1350(d), which
mandates that citation to the evidence in
support of each material fact must include

reference to the exhibit, title, page, and line

TIFFS’ RESPONSE TO DEFENDANT DILLINGHAM CONSTRUCTION, N.A., INC.’S SEPARATE STATEMENT OF

PLAIN
UNDISPUTED FACTS.So wm NY DH BF BN

CO we NA DA Fw HK

yey NN MY NN NR LD
aa A A BH VW SE S

she recalls being present at the jobsite. Her numbers. Defendant merely cites to several

husband and ex-husband were asked to sets of documents, those of the attached as a
identify every site they recalled working single an exhibit, without any page, line or
with Joyce and also to name the contractors interrogatory citation in support of this
present at that site. “fact.” Moreover, defendant also cites to
the testimony of Norman Juelch and John
See relevant excerpts from the deposition. Chambers, but Exhibit C has no reference
testimony of Joyce Juelch taken various to testimony by those individuals.
days in 2009, attached as Exhibit C to
Raymond Decl.
2. Ms. Juelch testified that she saw 2. Undisputed, but an incomplete recitation
Dillingham pipefitters perform work at two of the facts. Defendant admits plaintiff was
jobsites: Shel] Oil Refinery in Martinez, within 3 to 10 feet of the work that
California in 1982 and Tosco Oil Refinery defendant’s pipefitters performed with both
in Avon, California in 1983. She was removal and installation of gaskets
employed by Plant Insulation and worked at (Defendant’s Separate Statement, 2.) . The
each jobsite for approximately 2 months. plaintiff need not be present for the “entire
At each jobsite, she saw the Dillingham duration” of the pipefitters work in order for
pipefitters performing work to one valve. defendant to have exposed her to asbestos
She saw them remove two existing gaskets from the work of its pipefitters. Plaintiff
and insulation from the valve. She does also testified that the paper mask that she
not know the brand name, manufacturer, or wore was a 3M paper mask with a single
supplier of the existing gasket or insulation, band that did not keep the air from coming
who installed it, when it was installed or if in around the sides when she wore the mask
either contained asbestos. She saw them (68:9). Moreover even if plaintiff did Jearn
cut and install two gaskets that she believes the hazards of asbestos prior to her working
were manufactured by Garlock. However at the Shell and Tosco refineries, this does
she admits that she does not know if the not mean that Defendant did not have a
askets contained asbestos. She was responsibility to take adequate precautions
tween 3 and 10 feet away from the work when working with asbestos-centaining
being performed by the Dillingham products, especiaily given that plaintiffs
pipefitter. Moreover, she testified that she mask did prevent her from breathing. —~
was not present during the entire duration
of the Dillingham pipefitters’ work at either Moreover, even though the plaintiff does
location. She stated that she was “back and not know whether the gaskets that
forth.” She also testified that she the work Dillingham personnel were removing or
was being performed at both jobsites she installing contained asbestos or not,
wore a paper mask, as was her custom and plaintiffs personal ignorance of this fact is
ractice each time she performed her work not sufficient to demonstrate that such fact
in the 1980s. Ms. Juelch testified that she may not be proven through other evidence
first learned of the hazards of asbestos in and does not even suffice to shift the burden
the late 1960s and researched the issue as a as to any fact. (Weber v. John Crane, Inc.
third year apprentice in 1985. She testified (2006) 143 Cal.App.4th 1433.) :
that at both locations refine: sonnel
cleaned up the debris created by t e work Further, defendant admits that in its
performed by the Dillingham pipefitters. responses to Plaintiff's GO129 San
Francisco Superior Court Standard Asbestos
See Excerpts from the deposition testimony Interrogatories to Defendants, that
of Joyce Juelch at pp. 31:17-25, 32:22-23; “Dillingham Construction contracted to
33:7, 9-12, 15-16; 36:4-9; 37:5-11, 17-21; perform maintenance at the Shell Oil
39;8-16, 21-25; 40:1-4; 42:19-23; 43:1-18; Refinery between 1981-85.”

44:9-12, 24-25; 45:1-5; 65:1-21; 161:9-25;
162:1-12; 163:25; 164:1-13; 165:4-17;
166:5-25: 167: 1-10: 168:1-35; 169:20-25;

K Mpjured\ 0868iptdvse-DILGHM pd 2 sx)
PLAINTIFFS’ RESPONSE, TO DEFENDANT DILLINGHAM CONSTRUCTION, N.A., INC."S SEPARATE STATEMENT OF
UNDISPUTED FACTSCoD ON OH Bw OND Se

Com IQA A RD DN

20

170:1-4; 172:12-23; 173:15-20; 174:6-25;
175:1-25; 176:1-25; 177:1-20; 178:6-8, 13-
14, 19-25; 17921; 180:14-17; 181:1-15;
211:16-25; 212:1-10; 223:2-7; 224:5-13,
226:3-5, 8-25: 227:1-2, 17-25: 228: 5-16;
234:4-20; 254:22-25; 255:3-6; 15-18;
256:2-5, 9-10; 263:1-3; 937:3-11, 21-25;
938:1-9, 15-18, attached as Exhibit C to
Raymond Decl.

3. Ms. Juelch testified that she saw
Dillingham trucks at Shell Oil Refinery in
1984. But, she did not see any Dillingham
employees perform any hands-on work on
that occasion.

See Excerpts from the deposition testimony
of Joyce Juelch at pp. 258:17-25; 259:1-25,
260:1-25; 263:1-3; 267:2-14, attached as
Exhibit C to Raymond Decl.

4. She has never heard of C. Norman
Peterson and has no information that
Norman Juelch ever worked with or around
any employee of C. Norman Peterson.

See Excerpts from the deposition testimony
of Joyce Juelch at pp. 937:21-25; 938:1-18,
attached as Exhibit C to Raymond Decl.

5. Norman Juelch testified that he saw
Dillingham pipefitters remove and install
two gaskets in Joyce’s presence at the Shell
Oil Refinery in 1983 or 1984. He does not
know the brand name, manufacturer, or
supplier of the gaskets, Mr. Juelch testified
that Joyce wore a paper mask the entire
time the work was being performed by the
Dillingham employees. He saw no other
trades he thinks were employed by
Dillingham perform work in Joyce’s
presence, not did he see any Dillingham.
employees work with insulation or packing
material. He also testified that Joyce
cleaned up some of the gaskets the
Dillingham employees discarded. He does
not know how often she did this or how
many gaskets that were discarded by
Dillingham employees she cleaned up. He

KSinjured\ 08 688ipidiess- DILGHM wid,

3. Undisputed for purposes of this motion
only.

4. Undisputed but irrelevant. Plaintiff
never claimed that she worked around
employees of C. Norman Peterson, an
affiliate of Dillingham Construction. The
fact that plaintiff has not heard of C.
Norman Peterson does not in any way make
Dillingham Construction less liable for the
activities of its own personnel exposing her
to asbestos. Defendant does not dispute that
the plaintiff has identified defendant’s
pipefitters working around her at both the
Shell and Tosco refineries and working with
gaskets around plaintiff. (Defendant’s
Separate Statement, §2.)

5. Undisputed, but ari incomplete recitation
of the facts.

Plaintiff, Joyce Juelch, also testified that the
paper mask that she wore was a 3M paper
mask with a single band that did not keep
the air from coming in when she wore the
mask (68:9). Though the plaintiff does not
know whether the gaskets that Dillingham
personnel were removing or installing
contained asbestos or not, plaintiff's
personal ignorance of this fact is not
sufficient to demonstrate that such fact may
not be proven through other evidence and
does not even suffice to shift the burden as
to any fact. (Weber v. John Crane. Inc.
(2006) 143 Cal.App.4th 1433.)

Further, defendant admits that in its

SxI

Kitson encssuices DUCES ugg 3
PLAINTIFFS’ RESPONSE TO DEFENDANT DILLINGHAM CONSTRUCTION, N.A., INC.'S SEPARATE STATEMENT OF

UNDISPUTED FACTSdoes not know the brand name,
manufacturer, or supplier of the gaskets or
if they contained asbestos. He also testified
he worked at Shell Oil Refinery with Joyce
for one month sometime between 1982 and
1986 and saw Dillingham trucks, He did
not see any Dillingham employees any
hands-on work. Other than Shell Oil in
1983 or 1984, he does not recall seeing
Dillingham perform hands-on work at any
other jobsites when Joyce was also present.
Dillingham has never employed Mr. Juelch.

See Excerpts from the deposition testimony
of Norman Juelch at pp. 74:22-25; 75:1-14,
14:

23-25; 76:1-3, 19-25; 79:7-17; 8
81:6-25; 82:1-25: 83:1-25; 213:19-25;
214:1-17; 251:5-25; 252:10-25; 253:1-7,
attached as Exhibit H to Raymond Decl.

6, Norman Juelch has never heard of C.
Norman Peterson.

See Excerpts from the deposition testimony
of Norman Juelch at p. 253:7-10, attached
as Exhibit H to Raymond Decl. ,

7. Joyce Juelch’s ex-husband, John
Chambers, stipulated that he has no
information that either Dillingham or C.
Norman Peterson contributed to Joyce’s
asbestos related illness.

See Excerpts from the deposition testimony
of John Chambers at p. 147:1-14, attached
as Exhibit I to Raymond Decl.

8. Plaintiffs’ answers to Dillingham’s
discovery also provided no specific
information regarding the manner in which
Dillingham may have exposed him to an
asbestos containing material. They merely
set forth general allegations, but do not
provide specifies such as the brand name or
manufacturer of the product or material to
which Dillingham employees allegedly

K Mtnjured J 08688\pidhes5-DILGHM wd

responses to Plaintiff's GO129 San
Francisco Superior Court Standard Asbestos
Interrogatories to Defendants, that
“Dillingham Construction contracted to
perform maintenance at the Shell Oil
Refinery between 1981-85.” (Defendant’s
responses to Plaintiff's GO129 San
Francisco Superior Court Standard Asbestos
Interrogatories, attached as Exhibit D to the
Declaration of Siddharth Jhans, hereinafter,
“Jhans Decl.””)

6. Undisputed but irrelevant. Plaintiff
never claimed that she worked around
employees of C. Norman Peterson, an
affiliate of Dillingham Construction. The
fact that Mr. Jueich has not heard of C.
Norman Peterson does not in any way make
Dillingham Construction less liable for the
activities of its own personnel exposing her
to asbestos. Defendant does not Tispute that
the plaintiff and Mr. Juelch have identified
defendant’s pipefitters working around ber
at both the Shell and Tosco refineries and
working with gaskets around plaintiff
(Defendant’s Separate Statement, §2.)

7. Undisputed but irrelevant. This alleged
fact merely establishes Mr. Chambers lack
of knowledge - it does not establish that
Dillingham Construction did not perform
work the plaintiff. Defendant admits that
plaintiff and Norman Juelch have identified

illingham Construction’s pipefitters
working in close proximity to plaintiff with
gaskets. (Defendant's Separate Statement,
2 & 15.)

8. Disputed. Defendant does not refer to
any specific response by plaintiff to its
Request for Production. of Documents or the
Special Interrogatories in support of this
“fact”, in violation of C.R.C. 3.1350(d),
which mandates that citation to the evidence
in support of each material fact must
include reference to the exhibit, title, page,
and line numbers. Defendant merely cites

PLAINTIFFS’ RESPONSE TO DEFENDANT DILLINGHAM CONSTRUCTION, N_A., INC."S SEPARATE STATEMENT OF

UNDISPUTED FACTSOC OO DD WH Be BN

et
- &

exposed Ms. Juelch.

See Plaintiffs’ Responses to Dillingham’s
Request for Production of Documents, Set
One and Special Interrogatories, Set One,

attached as Exhibits F and G, respectively,
to Raymond Decl.

Dated: 3 frofo. se —_——

KSlnjured\108689\phitres-01,GHM wpd

to two sets of documents, attached as a two
different exhibits, without any page, line or
interrogatory citation in support of this
“fact.

In fact, plaintiff responded that she saw
Dillingham workers removing pipe
insulation and gaskets at the Sheil and
Tosco refineries during the early 1980s and
saw them repairing valves at both the Tosco
and Shell jobsites. Plaintiff further
responded that her co-worker, Norman
Jueich recalled that the pipes from which
Dillingham removed insulation and valve
gaskets were high-pressure pipes and shook
as material flowed through them.
(Plaintiff's Responses to Defendant’s
Special Interrogatories, No. 11, p. 4,
attached as Exhibit F to the Jhans Decl).

BRAYTON**PURCELL LLP

Siddharth J

5

hi
Attorneys HPS adits

sx

PLAINTIFFS’ RESPONSE TO DEFENDANT DILLINGHAM CONSTRUCTION, N.A., INC.’S SEPARATE STATEMENT OF

UNDISPUTED FACTS.