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BRAY TON® PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD
PO ROX 6159
NOVATO, CALIFORNIA 94948-6169
1415) 898-1555
26
ALAN R. BRAYTON, ESQ., S.B. #73685
DAVID R. DONADIO, ESQ., SBS B. #154436
B.
SIDDHARTH JHANS, ESQ., #254165 ELECTRONICALLY
BRAYTON PURCELL LE FILED
Attorneys at Law . LF
222 Rush Landing Road Superior Court of California,
P.O. Box 6169 County of San Francisco
Novato, California 94948-6169 MAR 11 2010
(415) 898-1555 Clerk of the Court
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw. cOMBY: LUCIA RAMOS
Deputy Clerk
Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCE JUELCH and ASBESTOS .
NORMAN JUELCH, SR., No. CGC-99-275212
Plaintiffs, PLAINTIFFS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT .
DILLINGHAM CONSTRUCTION, N.A.,
INC.’S MOTION FOR SUMMARY
JUDGMENT
vs.
ee
ASBESTOS DEFENDANTS (B“*P)
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
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION,
N.A,, INC.’S MOTION FOR SUMMARY JUDGMENTTABLE OF CONTENTS
PAGE
I. INTRODUCTION 22 oo. o ete nent e nets 1
I. STATEMENT OF FACTS «0.0.0.0 ccc ener eee 7
Ti. LEGAL ARGUMENT 1.00.00. eer eee ene 3
THE SCOPE OF DILLINGHAM’S MOTION IS LIMITED TO THE ISSUES
PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED MATERIAL
PACTS oe ee eee teen e eee e eee 3
A. DEFENDANT, DILLINGHAM, AS THE MOVING PARTY, FAILED TO SHIFT ITS
BURDEN OF PROOF 20. een eee 5
1. Defendant has not shown that Plaintiff's Discovery Responses Are
Factually Devoid... 2.0 eens 7
2. Defendant’s Motion Is Based on Irrelevant Issues .......---00. 000005 8
B. TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING JOYCE JUELCH’S
EXPOSURE TO ASBESTOS FROM DILLINGHAM |... «2.020... e eee eee 9
CONCLUSION 2.0... nee renee ene t tennant beeen ees 12
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CORE TRUCTION,
N.A., INC.’S MOTION FOR SUMMARY JUDGMENTBRAYTON®PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD
PO BOX 6169
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TABLE OF AUTHORITIES
CASES oO / PAGE
Aguilar v. Atlantic Richfield Company (2001) 25 Cal 4th 826 0.00.00... 0200 cee cease 5,
Bunzel v. Am. Academy of Orthopedic Surgeons (1980) 107 Cal. App.3d 165 ...0..20002.... 3
Conn y, National Can Corp. (1981) 124 Cal. App.3d 630 2.00.00.
Fleet v. CBS, Inc. (1996) 50 Cal. App.4th 1911 00. ene n eee |
Hayman v. Block (1986) 176 Cal.App.3d 629 0002 ccc cee 4
Juge v, County of Sacramento (1993) 12 Cal. App4th 59 2.022 3,
North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal_App.4th 22 vec eee e eee 4
San Diego Watercrafts. Inc. v. Wells Fargo Bank. N.A. (2002) 102 Cal. App.4th 308 «0.0.0... 4
STATUTES
California Cade of Civil Procedure Section 437¢ 02.0.0 cc eee 3-6, 9, 1
California Rules of Court, Rule 342(d) 2.0.0... fee cece beet eee
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION,
NLA, INC’S MOTION FOR SUMMARY JUDGMENT
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INTRODUCTION
Defendant DILLINGHAM CONSTRUCTION, N.A., INC. (“DILLINGHAM”) has failed to
show that plaintiff does not have, and cannot obtain, a prima facie case against it. Defendant has
failed to shift its burden of production. Further, triable issues of material fact exist as to
plaintiff's claims against DITIINGIAM. Therefore, defendant is not entitled to summary
judgment as a matter of law.
Ik.
STA’ ENT OF F, Ss
The plaintiff, Joyce Juelch, worked at the Shell Oil Refinery in Martinez, California (Shell)
around 1982 and at the Tosco Oil Refinery in Avon, California (Tosco) in 1983, soon after she
became an apprentice insulator (Plaintiff's Separate Statement of Disputed Material Facts
(hereinafter “PSS*), No. 1.) Defendant admits that at both of these refineries, the plaintiff
worked around other trades, including pipefitters. (PSS No.2.) The plaintiff recalls that on these
occasions in 1982 and 1983 at the Shell and Tosco refineries, respectively, the pipefitters she sa
worked for DILLINGLIAM. (PSS No.2.) She knew these pipefitters worked for DILLINGHAM
because their clothing, hard hat and, and vehicles had the name “Dillingham” on them. (PSS
No.2.) At both the Shell and Tosco refineries, the plaintiff saw DILLINGHAM pipefitters
removing two existing gaskets from a valve (PSS No. 3.)
At Shell in 1982, the plaintiff recalls that the valve that the DILLINGHAM pipefitters
were removing gaskets from was itself insulated and was connected to a high-pressure pipe that
was also insulated. (PSS No. 4.) The reason the plaintiff knew that the pipe this valve was
connected to was a high-pressure pipe because on one occasion she heard the pipe shake heavily
as material moved through it (PSS No. 4.) The Plaintiff saw the DILLINGHAM pipefitters at
Shell remove the gaskets both by hand and by using a electric-powered wheel wire to scrape the
rest of the gasket off the flange. (PSS No. 5.) She recalls the process of scraping the gasket off
using the wheel wire created a lot of dust. (PSS No. 5.) She was between three and ten feet from
the Dillingham pipefitters when they performed this work. (PSS No. 5.). Plaintiff also saw
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION,
N.A., INC.’S MOTION FOR SUMMARY JUDGMENTowe NOH BW N
Dillingham pipefitters replace the gaskets they removed on this valve at the Shell refinery in
1982 with new gaskets. (PSS No. 6.) She recalls Dillmgham pipefitters cut gaskets from a sheet
gasket material with the name Garlock printed on it and then put a piece of this material on the
flange of the valve and then used a soft hammer to pound the gasket into the shape and size of
the flange. (PSS No. 6.} Plaintiff was between three and ten feet from the Dillingham pipefitters
when they performed this work (PSS No. 6.)
At Tosco in 1983, plaintiff recalls Dillingham pipefitters performing work similar to that
she observed them perform at Shell in 1982: She recalls that the valve that the Dillingham
pipefitters were removing gaskets from was itself insulated and was connected to a high-pressure
pipe that was also insulated. (PSS No. 7.) The reason the plaintiff knew the pipe was a high-
pressure pipe was because, on one occasion she heard the pipe shake heavily as material moved
through it (PSS No. 7.) Plaintiff saw the Dillingham pipefitters at Tosco remove the gaskets bot!
by hand and by using a electric-powered wheel wire to scrape the rest of the gasket off the flange]
(PSS No. 8.) She recalls the process of scraping the gasket off using the wheel wire crated a lot
of dust. (PSS No. 8.) Plaintiff was between three and ten feet from the Dillingham pipefitters
when they performed this work (PSS No. 8.) Plaintiff also saw Dillingham pipefitters replace the|
gaskéts they removed on this valve at the Tosco refinery in ]983 with new gaskets. (PSS No. 9.)
She recalls Dillingham pipefitters cutting material from a sheet gasket material with the name
Garlock printed on it and then putting a piece of this material on the flange of the valve and using]
a soft hammer to pound the gasket into the shape and size of the flange. (PSS No. 9.) Plaintiff
was between three and ten feet from the Dillingham pipefitters when they performed this work
(PSS No. 9.)
Plaintiff was provided a 3M paper mask with a single band when she became an
apprentice insulator in 1982. (PSS No. 10.) She recalls these 3M masks were not equipped with a|
canister that would segregate the air. (PSS No. 10.) She further recalls that these 3M paper
masks were not fitted to conform to her face and would sit loosely on her face. (PSS No. 10)
She also recalls air coming in from the sides of the mask whenever she wore it (PSS No. 10.)
The single band 3M paper dust masks that plaintiff was provided were not designed for use
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION,
NA, INCS MOTION FOR SUMMARY JUDGMENToe 6B I DW Fw Nw
around asbestos dust. (PSS No. 11.) Such a mask would not impede the breathing of asbestos
containing dusts (PSS No. 11.)
The piping that the valves connected to at the Shell and Tosco Refineries, which plaintiff
described as “high pressure” were indeed high-pressure pipes. (PSS No. 12.) Plaintiff's
description of these pipes and valves as covered with insulation and of hearing the pipe shake
heavily when material passed through the pipe is consistent with a high-pressure system (PSS
No. 12.) The gaskets that were removed by Dillingham Construction pipefitters in connection
with valves that were connected to the high pressure piping, at the Shell Oil Refinery in
Martinez, California in 1982 and the Tosco Oil Refinery in Avon, California in 1983, more
likely than not contained asbestos. (PSS No. 13.) The “Garlock” sheet gasket material used by
Dillingham pipefitters to make gaskets for the valves that were connected to the high pressure
piping at the Shell Oil Refinery in Martinez, California in 1982 and at the Tosco Oil Refinery in
Avon, California in 1983 more likely than not, contained asbestos (PSS No. 14.)
The 3M paper mask with a single band that plaintiff was wearing at the time she saw
Dillingham pipefitters doing work around her would not have prevented her from breathing
respirable asbestos fibers. (PSS No. 15.) Given the statements plaintiff makes regarding her
work around Dillingham Construction pipefitters at the Shell and Tosco refineries, in 1982 and
1983, respectively, where these pipefitters were removing existing flange gaskets on a valve
comnecied to a high pressure pipe and making gaskets using “Garlock” sheet gasket material, it
is, more likely than not, plaintiff was exposed to respirable asbestos dust and fibers (PSS No. 16.
Til.
LEGAL ARGUMENT
THE SCOPE OF DILLINGHAM’S MOTION IS LIMITED TO THE ISSUES
PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT:
California Code of Civil Procedure § 437¢ 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
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION,
NA, INC.’S MOTION FOR SUMMARY JUDGMENTSP OMY DA eR Ww HN =
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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.” (luge, 12 Cal App-4th
at 67.)
Specifically, “[t]he Separate Statement of Undisputed Material Facts in support of a
motion must separately identify each 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 342(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.App4th 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. § 437e(b)(1).) “Facts stated elsewhere [other than in the
separate statement] need not be considered by the court.” (Fleet v. CBS. Inc, (1996) 50
Cal. App.4th 191 1, 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 )
Here, defendant does not dispute that the plaintiff testified to seeing DILLINGHAM.
pipefitters at the Shell Refinery in 1982 and the Tosco Refinery in 1983. The defendant also
does not dispute that the plaintiff saw these DILLINGHAM pipefitters removing existing gaskets
off an insulated valve. (Defendant’s Separate Statement of Undisputed Material Facts,
hereinafter, “DSS,” No. 2, attached to Defendant’s Moving Papers.) Defendant also does not
dispute that the plaintilf saw DILLINGHAM pipefitters cut and install two gaskets manufactured
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PLAENTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION,
NA, INCOS MOTION FOR SUMMARY JUDGMENTCe HW DW & WN
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by Garlock (DSS No. 2) Defendant further does not dispute that the plaintiff was working three ~
to ten feet away from this work that was performed by DILLINGIIAM pipefitters. The only
issues raised by defendant is that plaintiff and Norman Juelch have not heard of C. Norman
Peterson, that her ex-husband, John Chambers cannot stipulated he had no information pertaining
to DILLINGHAM or C. Norman Peterson; that her knowledge that asbestos was hazardous in
some way removed DILLINGHAM’s duty to take adequate precautions, and that the mask she
wore would have protected her from asbestos. No other issues are properly before the Court to
decide.
A. DEFENDANT, DILLINGHAM, AS THE MOVING PARTY, FAILED TO SHIFT
ITS BURDEN OF PROOF
Defendant failed to meet its burden of showing plaintiff's cause of action has no merit. AJ
motion for summary judgment is a drastic measure which deprives the losing party of a trial on
the merits, and should therefore be used only with caution. (Bunzel_v. Am. Academy of
Orthopedic Surgeons (1980) 107 Cal.App.3d 165, 169.) Because of the drastic nature of
summary judgment procedure, any doubts as to whether summary judgment is proper must be
resolved against the moving party. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) The
motion must not be granted unless the evidence brought forth by the moving party establishes
that there is no triable issue of material fact to be decided and that the moving party is entitled to
judgment as a matter of law. (C.C.P. § 437c (n) (0).) Absent this narrow finding, summary
judgment is not warranted,
Defendant fails to carry its threshold burden of producing competent evidence
establishing facts negating plaintiff's claims. In Aguilar v. Adantic Richfield Company (2001)
25 Cal.4th 826, the California Supreme Court “clarified the law that courts must apply in ruling
on motions for summary judgment.” The Aguilar court held that “from commencement to
conclusion, the party moving for summary judgment bears the burden of persuasion that there is
no triable issue of material fact and that he is entitled to judgment as a matter of law." (Id, at
845.) "A defendant bears the burden of persuasion that ‘one or more elements of the ‘cause of
He
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action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Id. at
849, quoting C.C.P. § 437c(0)(2).)
“Summary judgment law in this state, however, continues to require a defendant moving
for summary judgment to present evidence, and not simply point out through argument, that the
plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at
least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with
evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions,
and matters of which judicial notice ’ must or may ‘be taken..." (Id, at 855., quoting C.C.P.
§ 437c(b), italics in original.)
Specifically, Aguilar ends any notion that defendants may somehow obtain summary
judgment simply by asserting, without proof, that plaintiff has no evidence to support his cause
of action. "Language in certain decisions purportedly allowing a defendant moving for summary
judgment simply to ‘point[]’ out, through argument, ‘an absence of evidence to support’ an
element of the plaintiff's cause of action (e.g., Hunter v. Pacific Mechanical Corp. (1995)
37 Cal.App.4th 1282, 1288, italics in original) does not reflect summary judgment law as it has
ever stood, and is accordingly disapproved." (id, fp 23.) +
DILLINGHAM, as the moving party, has the burden of demonstrating through the
presentation of facts and evidence that plaintiff cannot establish one or more elements of his
causes of action. “The moving party must show that under no possible hypothesis within the
reasonable purview of the allegations of the complaint is there a material question of fact which
requires examination by trial.” (Chevron U.S.A. Inc. v. Super. Ct, (Cobb) (1992) 4 Cal.App.4th
544, 548.) “If the defendant does not satisfy its burden as the moving party, the motion must be
denied, and it is unnecessary for the court to consider the plaintiff’s opposition, if any.” (Id.,
emphasis added.)
In ruling on the motion, the court must “consider all of the evidence” and “all” of the
“inferences” reasonably drawn therefrom, and must view such evidence in the light most
favorable to the opposing party. (Aguilar v. Atlantic Ritchield Company, supra 25 Cal.4th 826,
843.)
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION,
NA, ING."S MOTION FOR SUMMARY JUDGMENT1. Defendant has not shown that Plaintiff's Discevery Responses Are
Factually Devoid
A defendant moving for summary judgment may rely on a nonmoving party’s factually
devoid writtén discovery responses to shift the burden of proof to the nonmoving party. (Union
Bank v. Super, Ct, (Demetry) (1995) 31 Cal. App.4th 573, 580-81.) Discovery in the Union Bank
case involved written Request for Admissions and Judicial Council Form Interrogatory answers.
(Id. at 577-78.) The court found that the plaintiffs admission, coupled with the party’s response
that “plaintiff believed...” that certain facts occurred constituted factually devoid responses. (Id,
at 578-79.)
Here, defendant claim that plaintiff's discovery responses are factually devoid is
inaccurate. On the contrary, plaintiff's discovery responses provided specific facts describing
plaintiff's work with around DILLINGHAM pipefitters at both the Tosco and Shell jobsites she
testified to. (Plaintif? s Responses to Defendant’s Special interrogatories (Set One), No. 11,
p.4:8-13, attached as Exhibit F to the Jhans Decl). Specifically, plaintiff stated:
“Plaintiff saw DILLINGHAM workers repairing valves at both the Tosco and Shell
jobsites. When the DILLINGHAM workers were repairing the valves, they removed the
pipe insulation and valve gaskets in pieces and dropped the pieces to the ground.
NORMAN JUELCH recalls the pipes from which DILLINGHAM removed insulation
and valve gaskets as being high-pressure pipes.”
Plaintiff also identified numerous documents in support of her contention of exposure to
asbestos from Dillingham, including her own deposition transcripts as well as those of Norman
Juelch. (Plaintiff's Responses to Defendant's Request for Production of Documents (Set One),
No. 1, p. 2:8-2:28, attached as Exhibit E to the Jhans Decl). Plaintiff also identified the
transcripts of several depositions of defendant's Person(s) Most Qualified and Custodian(s) of
Records (Plaintiff's Responses to Defendant's Request for Production of Documents (Set One),
No. L, p. 3:35-3:13, attached as Exhibit E to the Jhans Decl.) Defendant has made no efforts to
review these documents nor has it indicated why these documents are not relevant (DSS No.1-8.)
Instead, defendant presents irrelevant facts in its motion rebutting plaintiff's evidence in his
discovery responses. As such, defendant cannot successfully argue that plaintilf’s discovery
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Tesponses are factually devoid and that its burden of proof shifted to plaintiff based on plaintiff's
discovery responses.
2. Defendant’s Motion Is Based on Irrelevant Issues
Defendant does not provide any affirmative evidence that plaintiff cannot prove his case.
Instead, defendant chooses to rely on irrelevant information in its motion. Defendant focuses on
the fact that plaintiff nor her husband, Norman Juelch have not heard of C. Norman Peterson, an
subsidiary of DILLINGHAM. However, the Plaintiff never claimed that she worked around
employees of C. Norman Peterson. Plaintiff's claim is that she worked around DILLINGHAM
pipefitters. [he fact that plaintiff has not heard of C. Norman Peterson does not in any way make|
DILLINGHAM less liable for the activities of its own personnel exposing her to asbestos.
Defendant admits that the plaintiff has identified DILLINGHAM’s pipefitters working around
her at both the Shell and Tosco refineries and working with gaskets around plaintiff. (DSS, No.
2.) Thus the fact neither her nor Norman Juelch have heard of C. Norman Peterson is irrelevant.
Moreover, the fact that plaintiffs ex-husband, John Chambers, stipulated that he cannat
provide any information regarding DILLINGHAM or C. Norman Peterson is 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 Jueich have identified Dillingham Construction’s pipefitters working in close proximity
to plaintiff with gaskets (DSS, No.2.)
Defendant also highlights the fact that plaintiff had learned of the hazards of asbestos
prior to working at the Shell and Tosco refineries. However, even if plaintiff knew that asbestos
was hazardous, it does not mean that she was actually able to identify an asbestos-containing
product when she saw it or that she understood that the mask that she wore was not in fact
protective.. Defendant admits that plaintiff testified that she did not know whether any of the
gaskets that DILLINGHAM was working with were asbestos-containing (DSS No. 2). Even if
plaintiff knew the gaskets that DILLINGHAM was working with were asbestos-containing,
defendant still had a responsibility to ensure the work it was doing would not have exposed
plaintiff to asbestos.
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PLAINTIFFS* MEMORANDUM OF POINTS: AND AU AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION,
NA, INC.’S MOTION FOR SUMMARY JUDGM!Although defendant takes pains to point out that plaintiff wore a paper mask during the
time she worked nearby DILLINGHAM employees, defendant offers no evidence whatsoever
that the mask had any efficacy at all in protecting plaintiff from breathing the asbestos fibers
generated by DILLINGHAM’ s work.
Without the submission of admissible supporting evidence, Armstrong’s motion is a non-
starter, and the Court never reaches the point of evidentiary comparison offered in opposition to
its motion. (Chevron, 4 Cal.App.4th at 548.) Simply stated, defendant failed to submit the
requisite evidence that triggers a burden shift to plaintiff in this case as required by C.C.P,
§ 437c(p)(2). Since defendant failed to shift its burden, plaintiff respectfully requests the Court
to deny Armstrong’s Motion for Summary Judgment as it is warecessary for the Court to even
consider plaintiffs opposition.
B. TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING JOYCE
JUELCH’S EXPOSURE TO ASBESTOS FROM DILLINGHAM
“The function of the trial court in ruling on a motion for summary judgment is merely to
determine whether such issues of fact exist, not to decide the merits of the issues themselves.”
(Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1076-77.) “The primary duty of the trial
court is to decide whether there is an’issue of fact to-be tried. If it finds one, it is then powerless
to proceed further, but wtust allow such issue to be tried. by a jury unless a jury trial is waived.”
(Walsh v. Walsh (1941) 18 Cal.2d 439, 441, emphasis added.) “If'an issue of fact is present the
trial court abuses its discretion in granting such a motion.” (Black v. Sullivan (1975)
48 Cal.App.3d 557, 567.) In this case, such triable issues of fact exist.
Here, the plaintiff, Joyce Juelch, worked at the Shell Oil Refinery in Martinez, California
(Shell) around 1982 and at the Tosco Oil Refinery in Avon, California (Tosco) in 1983
(Plaintiff's Separate Statement of Disputed Material Facts (hereinafter “PSS”), No. 1.) The
plaintiff recalls that on these oceasions in 1982 and 1983 at the Shell and Tosco refineries,
respectively, the pipefitiers she saw worked for DILLINGHAM. (PSS No.2.) At both the Shell
and Tosco refineries, the plaintiff saw DILLINGHAM pipefitters removing two existing gaskets
from a valve (PSS No. 3.)
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At Sheil in 1982, the plaintiff recalls that the valve that the DILLINGHAM pipefitters
were removing gaskets from was itself insulated and was connected to a high-pressure pipe that
was also insulated. (PSS No. 4.) The reason the plaintiff knew that the pipe this valve was
connected to was a high-pressure pipe because on one occasion she heard the pipe shake heavily
as material moved through it (PSS No. 4.) The Plaintiff saw the DILLINGHAM pipefitters at
Shell remove the gaskets both by hand and by using a electric-powered wheel wire to scrape the
rest of the gasket off the flange. (PSS No. 5.) She recalls the process of scraping the gasket off
using the wheel wire created a lot of dust. (PSS No. 5.) She was between three and ten feet from
the Dillingham pipefitters when they performed this work. (PSS No. 5.). Plaintiff also saw
Dillingham pipefitters replace the gaskets they removed on this valve at the Shell refinery in
1982 with new gaskets. (PSS No. 6.) She recalls Dillingham pipefitters cut gaskets from a sheet
gasket material with the name Garlock printed on it and then put a piece of this material on the
flange of the valve and then used a soft hammer to pound the gasket into the shape and size of
the flange. (PSS No. 6.) Plaintiff was between three and ten feet from the Dillingham pipefitters
when they performed this work.(PSS No. 6.)
At Tosco in 1983, plaintiff recalls Dillingham pipefitters performing the work similar to
that she observed them perform at Shell in 1982 (PSS No.7-9,) Though, the plaintiff was
provided a 3M paper mask with a single band when she became an apprentice insulator in 1982,
she recalls these 3M masks were not equipped with a canister that would segregate the air and
would sit loosely on her face. (PSS No. 10.) She also recalls air coming in from the sides of the
mask whenever she wore it (PSS No. 10.) The single band 3M paper dust masks that plaintiff
was provided were not designed for use around asbestos dust. (PSS No. 11.) Such a mask would
not impede the breathing of asbestos containing dusts (PSS No. 11.)
The piping that the valves connected to at the Shell and Tosco Refineries, which plaintiff
described as “high pressure” were high-pressure pipes since plaintiff's description of these pipes
and valves as covered with insulation and of hearing the pipe shake heavily when material passed|
through the pipe is consistent with a high-pressure system (PSS No. 12.} The gaskets that were
removed by Dillingham Construction pipefitters in connection with valves that were connected t
XNojured\08388otvopp-DILGHM wpe 10 su
PLAINTIFFS) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINOHAM CONSTRUCTION,
NA. INC.'S MOTION FOR SUMMARY {U0GMSo em ND Bow
the high pressure piping. at the Shell Oi] Refinery in Martinez, California in 1982 and the Tosco
Oil Refinery in Avon, California in 1983, more likely than not contained asbestos. (PSS No. 13.)|
The “Garlock” sheet gasket material used by Dillingham pipefitters to make gaskets for the
valves that were connected to the high pressure piping at the Shell Oil Refinery in Martinez,
California in 1982 and at the Tosco Oil Refinery in Avon, California in 1983 more likely than
not, contained asbestos (PSS No. 14.)
The 3M paper mask with a single band that plaintiff was wearing at the time she saw
Dillingham pipefitters doing work around her would not have prevented her from breathing
respirable asbestos fibers. (PSS No. 15.) Given her work around DILLINGHAM pipefitters at
the Shell and Tosco refineries, in 1982 and 1983, itis, more likely than not, plaintiff was
exposed to respirable asbestos dust and fibers (PSS No. 16.).
The Defendant has not shown by way of declaration or other evidence that the gaskets
that DILLINGHAM’s pipefitters worked with were non-asbestos-containing nor has it shown
that the mask that plaintiff was using would have prevented her from being exposed to asbestos
fibers. (DSS No. 1-8.) “The aim of the [summary judgment] procedure is to discover, through the|
media of affidavits, whether the parties possess evidence requiring the weighing procedures of a
trial.” (Joslin-v. Marin Municipal Water District (1967) 67 Cal.2d 132, 147.) “In examining the
sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party
are strictly construed and those of his opponent liberally construed, and doubts as to the propriety]
of granting the motion should be resolved in favor of the party opposing the motion. (d.,
emphasis added.) Additionally, the facts alleged in the affidavits of the party opposing the
motion must be accepted as true. (Herber v. Yaeger (1967) 251 Cal. App.2d 258, 262, emphasis
added.). Since plaintiff has shown that the gaskets DILLINGHAM pipefitters were working with
three io ten feet of the plaintiff were asbestos-containing and the 3M mask she was using would
not have been effective to prevent her from getting exposed to asbestos, and defendant has not
proffered any evidence to refute plaintiff's evidence, triable issues of material fact exist in this
case.
ii
KNnjured\108688\p1dopp-DILGHM wpe 1) sx
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES EN OPPOSINON TO DEFENDANT DILLINGHAM CONSTRUCTION,
NA, ENC.’S MOTION FOR SUMMARY JUDGMENTDOD eC DN A WH
CONCLUSION
For the reasons stated herein, plaintiff respectfully requests that this Court deny
defendant's Motion for Summary Judgment as defendant failed to carry its burden under C.C.P.
§ 437¢(c) and § 437c(p)(2) of proving that plaintiff does not have, and cannot prove, his prima
facie case against it. Triable issues of material fact exist concerning Ms. Juelch’s asbestos
exposure from working in vicinity of DILLINGHAM’s pipefitters who were removing and
installing gaskets at the Shell Refinery in 1982 and the Tosco Refinery in 1983.
Dated: 3 fie flo BRAYTON**PURCELL LLP
By: :
Siddharth Jhan eh
Attomeys for Plaintit
{fo comply with Department 220's rules regarding tentative rulings, you must call the Law
& Motion Message Line (415) 493-3594 to give us notice if you wish to contest a tentative
ruling. A copy of any email notification to Dept. 220 must be sent to
contestasbestos TR@braytonlaw.com.|
X Alsjured 08GB yidingp-OH. OHM wo 12 sx
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION,
NLA. INC.15 MOTION FOR SUMMARY JUDGMENT
Preview
BRAY TON® PURCELL LLP ATTORNEYS AT LAW 222 RUSH LANDING ROAD PO ROX 6159 NOVATO, CALIFORNIA 94948-6169 1415) 898-1555 26 ALAN R. BRAYTON, ESQ., S.B. #73685 DAVID R. DONADIO, ESQ., SBS B. #154436 B. SIDDHARTH JHANS, ESQ., #254165 ELECTRONICALLY BRAYTON PURCELL LE FILED Attorneys at Law . LF 222 Rush Landing Road Superior Court of California, P.O. Box 6169 County of San Francisco Novato, California 94948-6169 MAR 11 2010 (415) 898-1555 Clerk of the Court Tentative Ruling Contest Email: contestasbestosTR@braytonlaw. cOMBY: LUCIA RAMOS Deputy Clerk Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCE JUELCH and ASBESTOS . NORMAN JUELCH, SR., No. CGC-99-275212 Plaintiffs, PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT . DILLINGHAM CONSTRUCTION, N.A., INC.’S MOTION FOR SUMMARY JUDGMENT vs. ee ASBESTOS DEFENDANTS (B“*P) 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 a Mt if _KSlojured\}08688\pld\opp-DULGHM wot 1 sx) PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION, N.A,, INC.’S MOTION FOR SUMMARY JUDGMENTTABLE OF CONTENTS PAGE I. INTRODUCTION 22 oo. o ete nent e nets 1 I. STATEMENT OF FACTS «0.0.0.0 ccc ener eee 7 Ti. LEGAL ARGUMENT 1.00.00. eer eee ene 3 THE SCOPE OF DILLINGHAM’S MOTION IS LIMITED TO THE ISSUES PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED MATERIAL PACTS oe ee eee teen e eee e eee 3 A. DEFENDANT, DILLINGHAM, AS THE MOVING PARTY, FAILED TO SHIFT ITS BURDEN OF PROOF 20. een eee 5 1. Defendant has not shown that Plaintiff's Discovery Responses Are Factually Devoid... 2.0 eens 7 2. Defendant’s Motion Is Based on Irrelevant Issues .......---00. 000005 8 B. TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING JOYCE JUELCH’S EXPOSURE TO ASBESTOS FROM DILLINGHAM |... «2.020... e eee eee 9 CONCLUSION 2.0... nee renee ene t tennant beeen ees 12 K Aiud 1086 oitopp-DILGHM. pd i wy PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CORE TRUCTION, N.A., INC.’S MOTION FOR SUMMARY JUDGMENTBRAYTON®PURCELL LLP ATTORNEYS AT LAW 222 RUSH LANDING ROAD PO BOX 6169 o 2 < = 8 z oS OD we ND nA PB WN TABLE OF AUTHORITIES CASES oO / PAGE Aguilar v. Atlantic Richfield Company (2001) 25 Cal 4th 826 0.00.00... 0200 cee cease 5, Bunzel v. Am. Academy of Orthopedic Surgeons (1980) 107 Cal. App.3d 165 ...0..20002.... 3 Conn y, National Can Corp. (1981) 124 Cal. App.3d 630 2.00.00. Fleet v. CBS, Inc. (1996) 50 Cal. App.4th 1911 00. ene n eee | Hayman v. Block (1986) 176 Cal.App.3d 629 0002 ccc cee 4 Juge v, County of Sacramento (1993) 12 Cal. App4th 59 2.022 3, North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal_App.4th 22 vec eee e eee 4 San Diego Watercrafts. Inc. v. Wells Fargo Bank. N.A. (2002) 102 Cal. App.4th 308 «0.0.0... 4 STATUTES California Cade of Civil Procedure Section 437¢ 02.0.0 cc eee 3-6, 9, 1 California Rules of Court, Rule 342(d) 2.0.0... fee cece beet eee HK Mlnjured O8688\pldvopy-OILGHM wed. ‘KeMnlured WO86BB\pldvopp-S9U-GHIM wok a te, PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION, NLA, INC’S MOTION FOR SUMMARY JUDGMENT iioe Ye NW DH fF WN i INTRODUCTION Defendant DILLINGHAM CONSTRUCTION, N.A., INC. (“DILLINGHAM”) has failed to show that plaintiff does not have, and cannot obtain, a prima facie case against it. Defendant has failed to shift its burden of production. Further, triable issues of material fact exist as to plaintiff's claims against DITIINGIAM. Therefore, defendant is not entitled to summary judgment as a matter of law. Ik. STA’ ENT OF F, Ss The plaintiff, Joyce Juelch, worked at the Shell Oil Refinery in Martinez, California (Shell) around 1982 and at the Tosco Oil Refinery in Avon, California (Tosco) in 1983, soon after she became an apprentice insulator (Plaintiff's Separate Statement of Disputed Material Facts (hereinafter “PSS*), No. 1.) Defendant admits that at both of these refineries, the plaintiff worked around other trades, including pipefitters. (PSS No.2.) The plaintiff recalls that on these occasions in 1982 and 1983 at the Shell and Tosco refineries, respectively, the pipefitters she sa worked for DILLINGLIAM. (PSS No.2.) She knew these pipefitters worked for DILLINGHAM because their clothing, hard hat and, and vehicles had the name “Dillingham” on them. (PSS No.2.) At both the Shell and Tosco refineries, the plaintiff saw DILLINGHAM pipefitters removing two existing gaskets from a valve (PSS No. 3.) At Shell in 1982, the plaintiff recalls that the valve that the DILLINGHAM pipefitters were removing gaskets from was itself insulated and was connected to a high-pressure pipe that was also insulated. (PSS No. 4.) The reason the plaintiff knew that the pipe this valve was connected to was a high-pressure pipe because on one occasion she heard the pipe shake heavily as material moved through it (PSS No. 4.) The Plaintiff saw the DILLINGHAM pipefitters at Shell remove the gaskets both by hand and by using a electric-powered wheel wire to scrape the rest of the gasket off the flange. (PSS No. 5.) She recalls the process of scraping the gasket off using the wheel wire created a lot of dust. (PSS No. 5.) She was between three and ten feet from the Dillingham pipefitters when they performed this work. (PSS No. 5.). Plaintiff also saw rire 0s6s5ypp DILOHM pd 1 ou PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION, N.A., INC.’S MOTION FOR SUMMARY JUDGMENTowe NOH BW N Dillingham pipefitters replace the gaskets they removed on this valve at the Shell refinery in 1982 with new gaskets. (PSS No. 6.) She recalls Dillmgham pipefitters cut gaskets from a sheet gasket material with the name Garlock printed on it and then put a piece of this material on the flange of the valve and then used a soft hammer to pound the gasket into the shape and size of the flange. (PSS No. 6.} Plaintiff was between three and ten feet from the Dillingham pipefitters when they performed this work (PSS No. 6.) At Tosco in 1983, plaintiff recalls Dillingham pipefitters performing work similar to that she observed them perform at Shell in 1982: She recalls that the valve that the Dillingham pipefitters were removing gaskets from was itself insulated and was connected to a high-pressure pipe that was also insulated. (PSS No. 7.) The reason the plaintiff knew the pipe was a high- pressure pipe was because, on one occasion she heard the pipe shake heavily as material moved through it (PSS No. 7.) Plaintiff saw the Dillingham pipefitters at Tosco remove the gaskets bot! by hand and by using a electric-powered wheel wire to scrape the rest of the gasket off the flange] (PSS No. 8.) She recalls the process of scraping the gasket off using the wheel wire crated a lot of dust. (PSS No. 8.) Plaintiff was between three and ten feet from the Dillingham pipefitters when they performed this work (PSS No. 8.) Plaintiff also saw Dillingham pipefitters replace the| gaskéts they removed on this valve at the Tosco refinery in ]983 with new gaskets. (PSS No. 9.) She recalls Dillingham pipefitters cutting material from a sheet gasket material with the name Garlock printed on it and then putting a piece of this material on the flange of the valve and using] a soft hammer to pound the gasket into the shape and size of the flange. (PSS No. 9.) Plaintiff was between three and ten feet from the Dillingham pipefitters when they performed this work (PSS No. 9.) Plaintiff was provided a 3M paper mask with a single band when she became an apprentice insulator in 1982. (PSS No. 10.) She recalls these 3M masks were not equipped with a| canister that would segregate the air. (PSS No. 10.) She further recalls that these 3M paper masks were not fitted to conform to her face and would sit loosely on her face. (PSS No. 10) She also recalls air coming in from the sides of the mask whenever she wore it (PSS No. 10.) The single band 3M paper dust masks that plaintiff was provided were not designed for use KNnjured | O86Siphdopp-DILGHM wad 2 5x PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION, NA, INCS MOTION FOR SUMMARY JUDGMENToe 6B I DW Fw Nw around asbestos dust. (PSS No. 11.) Such a mask would not impede the breathing of asbestos containing dusts (PSS No. 11.) The piping that the valves connected to at the Shell and Tosco Refineries, which plaintiff described as “high pressure” were indeed high-pressure pipes. (PSS No. 12.) Plaintiff's description of these pipes and valves as covered with insulation and of hearing the pipe shake heavily when material passed through the pipe is consistent with a high-pressure system (PSS No. 12.) The gaskets that were removed by Dillingham Construction pipefitters in connection with valves that were connected to the high pressure piping, at the Shell Oil Refinery in Martinez, California in 1982 and the Tosco Oil Refinery in Avon, California in 1983, more likely than not contained asbestos. (PSS No. 13.) The “Garlock” sheet gasket material used by Dillingham pipefitters to make gaskets for the valves that were connected to the high pressure piping at the Shell Oil Refinery in Martinez, California in 1982 and at the Tosco Oil Refinery in Avon, California in 1983 more likely than not, contained asbestos (PSS No. 14.) The 3M paper mask with a single band that plaintiff was wearing at the time she saw Dillingham pipefitters doing work around her would not have prevented her from breathing respirable asbestos fibers. (PSS No. 15.) Given the statements plaintiff makes regarding her work around Dillingham Construction pipefitters at the Shell and Tosco refineries, in 1982 and 1983, respectively, where these pipefitters were removing existing flange gaskets on a valve comnecied to a high pressure pipe and making gaskets using “Garlock” sheet gasket material, it is, more likely than not, plaintiff was exposed to respirable asbestos dust and fibers (PSS No. 16. Til. LEGAL ARGUMENT THE SCOPE OF DILLINGHAM’S MOTION IS LIMITED TO THE ISSUES PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT: California Code of Civil Procedure § 437¢ 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 Kalnjured\ 08688¥thoge-DILGI wpa 3 8x1 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION, NA, INC.’S MOTION FOR SUMMARY JUDGMENTSP OMY DA eR Ww HN = poo 13 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.” (luge, 12 Cal App-4th at 67.) Specifically, “[t]he Separate Statement of Undisputed Material Facts in support of a motion must separately identify each 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 342(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.App4th 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. § 437e(b)(1).) “Facts stated elsewhere [other than in the separate statement] need not be considered by the court.” (Fleet v. CBS. Inc, (1996) 50 Cal. App.4th 191 1, 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 ) Here, defendant does not dispute that the plaintiff testified to seeing DILLINGHAM. pipefitters at the Shell Refinery in 1982 and the Tosco Refinery in 1983. The defendant also does not dispute that the plaintiff saw these DILLINGHAM pipefitters removing existing gaskets off an insulated valve. (Defendant’s Separate Statement of Undisputed Material Facts, hereinafter, “DSS,” No. 2, attached to Defendant’s Moving Papers.) Defendant also does not dispute that the plaintilf saw DILLINGHAM pipefitters cut and install two gaskets manufactured K Nie 0898 Riphonp DIL GHM pd 4 Sxi PLAENTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION, NA, INCOS MOTION FOR SUMMARY JUDGMENTCe HW DW & WN 10 by Garlock (DSS No. 2) Defendant further does not dispute that the plaintiff was working three ~ to ten feet away from this work that was performed by DILLINGIIAM pipefitters. The only issues raised by defendant is that plaintiff and Norman Juelch have not heard of C. Norman Peterson, that her ex-husband, John Chambers cannot stipulated he had no information pertaining to DILLINGHAM or C. Norman Peterson; that her knowledge that asbestos was hazardous in some way removed DILLINGHAM’s duty to take adequate precautions, and that the mask she wore would have protected her from asbestos. No other issues are properly before the Court to decide. A. DEFENDANT, DILLINGHAM, AS THE MOVING PARTY, FAILED TO SHIFT ITS BURDEN OF PROOF Defendant failed to meet its burden of showing plaintiff's cause of action has no merit. AJ motion for summary judgment is a drastic measure which deprives the losing party of a trial on the merits, and should therefore be used only with caution. (Bunzel_v. Am. Academy of Orthopedic Surgeons (1980) 107 Cal.App.3d 165, 169.) Because of the drastic nature of summary judgment procedure, any doubts as to whether summary judgment is proper must be resolved against the moving party. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) The motion must not be granted unless the evidence brought forth by the moving party establishes that there is no triable issue of material fact to be decided and that the moving party is entitled to judgment as a matter of law. (C.C.P. § 437c (n) (0).) Absent this narrow finding, summary judgment is not warranted, Defendant fails to carry its threshold burden of producing competent evidence establishing facts negating plaintiff's claims. In Aguilar v. Adantic Richfield Company (2001) 25 Cal.4th 826, the California Supreme Court “clarified the law that courts must apply in ruling on motions for summary judgment.” The Aguilar court held that “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Id, at 845.) "A defendant bears the burden of persuasion that ‘one or more elements of the ‘cause of He K.Mnjurech108680pif.opp-DILOHM. wpe 35 sx PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION, N.A., INC.'S MOTION FOR SUMMARY JUDGMENT= SD we NY Rw BR WH = Soe BARDS RN NNW NN NY SIF a FONDS = S action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Id. at 849, quoting C.C.P. § 437c(0)(2).) “Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out through argument, that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice ’ must or may ‘be taken..." (Id, at 855., quoting C.C.P. § 437c(b), italics in original.) Specifically, Aguilar ends any notion that defendants may somehow obtain summary judgment simply by asserting, without proof, that plaintiff has no evidence to support his cause of action. "Language in certain decisions purportedly allowing a defendant moving for summary judgment simply to ‘point[]’ out, through argument, ‘an absence of evidence to support’ an element of the plaintiff's cause of action (e.g., Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1288, italics in original) does not reflect summary judgment law as it has ever stood, and is accordingly disapproved." (id, fp 23.) + DILLINGHAM, as the moving party, has the burden of demonstrating through the presentation of facts and evidence that plaintiff cannot establish one or more elements of his causes of action. “The moving party must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.” (Chevron U.S.A. Inc. v. Super. Ct, (Cobb) (1992) 4 Cal.App.4th 544, 548.) “If the defendant does not satisfy its burden as the moving party, the motion must be denied, and it is unnecessary for the court to consider the plaintiff’s opposition, if any.” (Id., emphasis added.) In ruling on the motion, the court must “consider all of the evidence” and “all” of the “inferences” reasonably drawn therefrom, and must view such evidence in the light most favorable to the opposing party. (Aguilar v. Atlantic Ritchield Company, supra 25 Cal.4th 826, 843.) K Alojured\)08688\pid\onp-DILGHM wp 6 Sx) PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION, NA, ING."S MOTION FOR SUMMARY JUDGMENT1. Defendant has not shown that Plaintiff's Discevery Responses Are Factually Devoid A defendant moving for summary judgment may rely on a nonmoving party’s factually devoid writtén discovery responses to shift the burden of proof to the nonmoving party. (Union Bank v. Super, Ct, (Demetry) (1995) 31 Cal. App.4th 573, 580-81.) Discovery in the Union Bank case involved written Request for Admissions and Judicial Council Form Interrogatory answers. (Id. at 577-78.) The court found that the plaintiffs admission, coupled with the party’s response that “plaintiff believed...” that certain facts occurred constituted factually devoid responses. (Id, at 578-79.) Here, defendant claim that plaintiff's discovery responses are factually devoid is inaccurate. On the contrary, plaintiff's discovery responses provided specific facts describing plaintiff's work with around DILLINGHAM pipefitters at both the Tosco and Shell jobsites she testified to. (Plaintif? s Responses to Defendant’s Special interrogatories (Set One), No. 11, p.4:8-13, attached as Exhibit F to the Jhans Decl). Specifically, plaintiff stated: “Plaintiff saw DILLINGHAM workers repairing valves at both the Tosco and Shell jobsites. When the DILLINGHAM workers were repairing the valves, they removed the pipe insulation and valve gaskets in pieces and dropped the pieces to the ground. NORMAN JUELCH recalls the pipes from which DILLINGHAM removed insulation and valve gaskets as being high-pressure pipes.” Plaintiff also identified numerous documents in support of her contention of exposure to asbestos from Dillingham, including her own deposition transcripts as well as those of Norman Juelch. (Plaintiff's Responses to Defendant's Request for Production of Documents (Set One), No. 1, p. 2:8-2:28, attached as Exhibit E to the Jhans Decl). Plaintiff also identified the transcripts of several depositions of defendant's Person(s) Most Qualified and Custodian(s) of Records (Plaintiff's Responses to Defendant's Request for Production of Documents (Set One), No. L, p. 3:35-3:13, attached as Exhibit E to the Jhans Decl.) Defendant has made no efforts to review these documents nor has it indicated why these documents are not relevant (DSS No.1-8.) Instead, defendant presents irrelevant facts in its motion rebutting plaintiff's evidence in his discovery responses. As such, defendant cannot successfully argue that plaintilf’s discovery K Anjured\ 108688 gldhopa-DILGHM rd 7 sx PLAINTIFFS” MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION, NLA. INC."S MOTION FOR SUMMARY JUDGMENTwoe Y DM FB BN RN WN NN NY NY LY we YA Af BH & S Tesponses are factually devoid and that its burden of proof shifted to plaintiff based on plaintiff's discovery responses. 2. Defendant’s Motion Is Based on Irrelevant Issues Defendant does not provide any affirmative evidence that plaintiff cannot prove his case. Instead, defendant chooses to rely on irrelevant information in its motion. Defendant focuses on the fact that plaintiff nor her husband, Norman Juelch have not heard of C. Norman Peterson, an subsidiary of DILLINGHAM. However, the Plaintiff never claimed that she worked around employees of C. Norman Peterson. Plaintiff's claim is that she worked around DILLINGHAM pipefitters. [he fact that plaintiff has not heard of C. Norman Peterson does not in any way make| DILLINGHAM less liable for the activities of its own personnel exposing her to asbestos. Defendant admits that the plaintiff has identified DILLINGHAM’s pipefitters working around her at both the Shell and Tosco refineries and working with gaskets around plaintiff. (DSS, No. 2.) Thus the fact neither her nor Norman Juelch have heard of C. Norman Peterson is irrelevant. Moreover, the fact that plaintiffs ex-husband, John Chambers, stipulated that he cannat provide any information regarding DILLINGHAM or C. Norman Peterson is 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 Jueich have identified Dillingham Construction’s pipefitters working in close proximity to plaintiff with gaskets (DSS, No.2.) Defendant also highlights the fact that plaintiff had learned of the hazards of asbestos prior to working at the Shell and Tosco refineries. However, even if plaintiff knew that asbestos was hazardous, it does not mean that she was actually able to identify an asbestos-containing product when she saw it or that she understood that the mask that she wore was not in fact protective.. Defendant admits that plaintiff testified that she did not know whether any of the gaskets that DILLINGHAM was working with were asbestos-containing (DSS No. 2). Even if plaintiff knew the gaskets that DILLINGHAM was working with were asbestos-containing, defendant still had a responsibility to ensure the work it was doing would not have exposed plaintiff to asbestos. H Mars 08688 too ULGHM pd 8 sw PLAINTIFFS* MEMORANDUM OF POINTS: AND AU AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION, NA, INC.’S MOTION FOR SUMMARY JUDGM!Although defendant takes pains to point out that plaintiff wore a paper mask during the time she worked nearby DILLINGHAM employees, defendant offers no evidence whatsoever that the mask had any efficacy at all in protecting plaintiff from breathing the asbestos fibers generated by DILLINGHAM’ s work. Without the submission of admissible supporting evidence, Armstrong’s motion is a non- starter, and the Court never reaches the point of evidentiary comparison offered in opposition to its motion. (Chevron, 4 Cal.App.4th at 548.) Simply stated, defendant failed to submit the requisite evidence that triggers a burden shift to plaintiff in this case as required by C.C.P, § 437c(p)(2). Since defendant failed to shift its burden, plaintiff respectfully requests the Court to deny Armstrong’s Motion for Summary Judgment as it is warecessary for the Court to even consider plaintiffs opposition. B. TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING JOYCE JUELCH’S EXPOSURE TO ASBESTOS FROM DILLINGHAM “The function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, not to decide the merits of the issues themselves.” (Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1076-77.) “The primary duty of the trial court is to decide whether there is an’issue of fact to-be tried. If it finds one, it is then powerless to proceed further, but wtust allow such issue to be tried. by a jury unless a jury trial is waived.” (Walsh v. Walsh (1941) 18 Cal.2d 439, 441, emphasis added.) “If'an issue of fact is present the trial court abuses its discretion in granting such a motion.” (Black v. Sullivan (1975) 48 Cal.App.3d 557, 567.) In this case, such triable issues of fact exist. Here, the plaintiff, Joyce Juelch, worked at the Shell Oil Refinery in Martinez, California (Shell) around 1982 and at the Tosco Oil Refinery in Avon, California (Tosco) in 1983 (Plaintiff's Separate Statement of Disputed Material Facts (hereinafter “PSS”), No. 1.) The plaintiff recalls that on these oceasions in 1982 and 1983 at the Shell and Tosco refineries, respectively, the pipefitiers she saw worked for DILLINGHAM. (PSS No.2.) At both the Shell and Tosco refineries, the plaintiff saw DILLINGHAM pipefitters removing two existing gaskets from a valve (PSS No. 3.) KSTajured ono phdweps-DILGHM wed 9 PLAINTIFFS” MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM TORSTRUCTION, NA. INC?S MOTION FOR SUMMARY JUDGMENTFe owe em NY DH BF WN = Se 2 RF BESS RN NY NN NN eo 2 AA BY SH = S At Sheil in 1982, the plaintiff recalls that the valve that the DILLINGHAM pipefitters were removing gaskets from was itself insulated and was connected to a high-pressure pipe that was also insulated. (PSS No. 4.) The reason the plaintiff knew that the pipe this valve was connected to was a high-pressure pipe because on one occasion she heard the pipe shake heavily as material moved through it (PSS No. 4.) The Plaintiff saw the DILLINGHAM pipefitters at Shell remove the gaskets both by hand and by using a electric-powered wheel wire to scrape the rest of the gasket off the flange. (PSS No. 5.) She recalls the process of scraping the gasket off using the wheel wire created a lot of dust. (PSS No. 5.) She was between three and ten feet from the Dillingham pipefitters when they performed this work. (PSS No. 5.). Plaintiff also saw Dillingham pipefitters replace the gaskets they removed on this valve at the Shell refinery in 1982 with new gaskets. (PSS No. 6.) She recalls Dillingham pipefitters cut gaskets from a sheet gasket material with the name Garlock printed on it and then put a piece of this material on the flange of the valve and then used a soft hammer to pound the gasket into the shape and size of the flange. (PSS No. 6.) Plaintiff was between three and ten feet from the Dillingham pipefitters when they performed this work.(PSS No. 6.) At Tosco in 1983, plaintiff recalls Dillingham pipefitters performing the work similar to that she observed them perform at Shell in 1982 (PSS No.7-9,) Though, the plaintiff was provided a 3M paper mask with a single band when she became an apprentice insulator in 1982, she recalls these 3M masks were not equipped with a canister that would segregate the air and would sit loosely on her face. (PSS No. 10.) She also recalls air coming in from the sides of the mask whenever she wore it (PSS No. 10.) The single band 3M paper dust masks that plaintiff was provided were not designed for use around asbestos dust. (PSS No. 11.) Such a mask would not impede the breathing of asbestos containing dusts (PSS No. 11.) The piping that the valves connected to at the Shell and Tosco Refineries, which plaintiff described as “high pressure” were high-pressure pipes since plaintiff's description of these pipes and valves as covered with insulation and of hearing the pipe shake heavily when material passed| through the pipe is consistent with a high-pressure system (PSS No. 12.} The gaskets that were removed by Dillingham Construction pipefitters in connection with valves that were connected t XNojured\08388otvopp-DILGHM wpe 10 su PLAINTIFFS) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINOHAM CONSTRUCTION, NA. INC.'S MOTION FOR SUMMARY {U0GMSo em ND Bow the high pressure piping. at the Shell Oi] Refinery in Martinez, California in 1982 and the Tosco Oil Refinery in Avon, California in 1983, more likely than not contained asbestos. (PSS No. 13.)| The “Garlock” sheet gasket material used by Dillingham pipefitters to make gaskets for the valves that were connected to the high pressure piping at the Shell Oil Refinery in Martinez, California in 1982 and at the Tosco Oil Refinery in Avon, California in 1983 more likely than not, contained asbestos (PSS No. 14.) The 3M paper mask with a single band that plaintiff was wearing at the time she saw Dillingham pipefitters doing work around her would not have prevented her from breathing respirable asbestos fibers. (PSS No. 15.) Given her work around DILLINGHAM pipefitters at the Shell and Tosco refineries, in 1982 and 1983, itis, more likely than not, plaintiff was exposed to respirable asbestos dust and fibers (PSS No. 16.). The Defendant has not shown by way of declaration or other evidence that the gaskets that DILLINGHAM’s pipefitters worked with were non-asbestos-containing nor has it shown that the mask that plaintiff was using would have prevented her from being exposed to asbestos fibers. (DSS No. 1-8.) “The aim of the [summary judgment] procedure is to discover, through the| media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.” (Joslin-v. Marin Municipal Water District (1967) 67 Cal.2d 132, 147.) “In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety] of granting the motion should be resolved in favor of the party opposing the motion. (d., emphasis added.) Additionally, the facts alleged in the affidavits of the party opposing the motion must be accepted as true. (Herber v. Yaeger (1967) 251 Cal. App.2d 258, 262, emphasis added.). Since plaintiff has shown that the gaskets DILLINGHAM pipefitters were working with three io ten feet of the plaintiff were asbestos-containing and the 3M mask she was using would not have been effective to prevent her from getting exposed to asbestos, and defendant has not proffered any evidence to refute plaintiff's evidence, triable issues of material fact exist in this case. ii KNnjured\108688\p1dopp-DILGHM wpe 1) sx PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES EN OPPOSINON TO DEFENDANT DILLINGHAM CONSTRUCTION, NA, ENC.’S MOTION FOR SUMMARY JUDGMENTDOD eC DN A WH CONCLUSION For the reasons stated herein, plaintiff respectfully requests that this Court deny defendant's Motion for Summary Judgment as defendant failed to carry its burden under C.C.P. § 437¢(c) and § 437c(p)(2) of proving that plaintiff does not have, and cannot prove, his prima facie case against it. Triable issues of material fact exist concerning Ms. Juelch’s asbestos exposure from working in vicinity of DILLINGHAM’s pipefitters who were removing and installing gaskets at the Shell Refinery in 1982 and the Tosco Refinery in 1983. Dated: 3 fie flo BRAYTON**PURCELL LLP By: : Siddharth Jhan eh Attomeys for Plaintit {fo comply with Department 220's rules regarding tentative rulings, you must call the Law & Motion Message Line (415) 493-3594 to give us notice if you wish to contest a tentative ruling. A copy of any email notification to Dept. 220 must be sent to contestasbestos TR@braytonlaw.com.| X Alsjured 08GB yidingp-OH. OHM wo 12 sx PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLINGHAM CONSTRUCTION, NLA. INC.15 MOTION FOR SUMMARY JUDGMENT