Preview
1], ALAN R, BRAYTON, ESQ., 8.B. #73685
DAVID R, DONADIO, ESQ., 8.B. #154436
2] RON G, ARCHER, ESQ., S.B. #189429 ELECTRONICALLY
BRAYTON PURCELL LLP
3) Attorneys at Law FILED
222 Rush Landmg Road Superior Court of California,
4] P.O. Box 6169 County of San Francisco
Novato, California 94948-6169 ‘ MAR 10 2010
5 }| (415) 898-1555 . Clerk of the Court
5 Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.comBY: CHRISTLE ARRIOLA
Deputy Clerk
7 Attorneys for Plaintiffs “es
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 || JOYCE JUELCH and ) ASBESTOS
3 NORMA JUELCH, SR., ) No. CGC-09-275212
& Plaintiffs, } PLAINTIFFS’ MEMORANDUM OF
Se 2 13 ) POINTS AND AUTHORITIES IN
ase. vs. ) OPPOSITION TO DEFENDANT
gees 4 ) METALCLAD INSULATION
e%2k ASBESTOS DEFENDANTS (BP) ) CORPORATION’S MOTION FOR
#228 5 SUMMARY JUDGMENT OR, IN THE
Saks ALTERNATIVE, SUMMARY
3 g 5 6 ADJUDICATION
a q te Date: March 18, 2010
Time: 9:30 a.m.
18 Dept.: 220, Hon. Harold E. Kahn
Trial Date: April 5, 2010
9 Action Filed: May 20, 2009
20 L
21 INTRODUCTION
22 Defendant METALCLAD INSULATION CORPORATION (“MBTALCLAD”), by this
23 || motion, attempts to deny liability for exposure to asbestos suffered by plaintiff, JOYCE
24 || JUELCH, from the asbestos-laden dust brought home by her husband, NORMAN JUELCH, on
25 || his person and on his work clothes which plaintiff laundered. Defendant does not dispute that
26 || such exposure occurred. Rather Defendant argues that the take-home exposure suffered by
27]! plaintiff through her husband should be barred because of an alleged exclusivity of workers’
28 || compensation laws (Labor code § 3600 et seq.).
K.SIrjureds108688ipldoup MBTALC mj wpe 1 RGA
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION11
CGO eB BM DH B® BR Bw
Defendant’s Motion must be denied as being without merit. The allegations of plaintiffs
} complaint are clear and unambiguous: JOYCE TUELCH was exposed to asbestos by Metalclad
both arising out of the course of her employment and arising out of personal actions outside of
both the scope and situs of employment, ie. wholly unrelated to her employment. The remedy
for the former lies in Workers’ Compensation, The remedy for the latter is this civil action for
tort before the California Superior Court.
First, METALCLAD erroneously claims that it cannot be liable for plaintiff's exposure
to asbestos brought into the family home by her husband because of the “exclusive remedy”
provisions of California workers’ compensation law. As defendant would have it; plaintiff is
barred from any claim against METALCLAD while she was in its employ, irrespective of the
fact that the injury occurred through a route independent of her employment relationship.
Defendant is simply wrong. Plaintiff freely admits that she may bring no third party action
based on her own job related activities. But the law does not immunize an employer against
harm suffered outside of the employer-employee relationship. When Mrs. Juelch shook out her
husbands asbestos-laden clothing she did so after work hours, in her own home. METALCLAD
has made no showing that these activities were in any fashion a part of, or related in any way to,
the job duties of Mrs. Juelch. There is no bar.
Defendant’s second contention is that METALCLAD owed no duty to Mrs. Jueich
because she was a “sophisticated user” .This claim founders on a lack of evidence. Although
defendant cites evidence that plaintiff developed an understanding over the course of her career
that there were hazards associated with asbestos, il does not present any evidence demonstrating
that plaintiff knew at any time that she was at risk from the asbestos carried home by her
husband. To the extent that the evidence shows plaintiff came to understand during her career
that asbestos posed certain hazards, defendant has not presented evidence that in the early years
of her marriage when she was exposed to take-home dust from her husband that she possessed
sufficient understanding of these hazards such as would make her aware of a hazard from take-
home dust,
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ENMojnedut METAL Co} 2 RGA
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONon DW RB BW NY me
o
i.
STATEMENT OF FACTS
Defendant acknowledges and does not contradict the claims Mrs. JUELCH was exposed
to asbestos as a result of her husband’s take-home of asbestos-containing dust on his clothing
during times he was working for METALCLAD. (See defendant’s UMF No. 19.) Defendant
acknowledges and does not contradict the claims that Mrs. JUELCH was exposed to asbestos-
containing dust while laundering Mr. JUELCH’s asbestos-laden clothing brought home from
his work with defendant. Id.)
if.
A. THE SCOPE OF DEFENDANT’S MOTION IS LIMITED TO THE MATTERS
PRESENTED IN IT’S MOVING PAPERS
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.”
(luge v. County of Sacramento (1993) 12 Cal-App.4th 59, 66.) “[T]he initial duty to define the
issues presented by the complaint and to challenge them factually is on the defendant who seeks
a summary judgment.” (Conn v. National Can Corp. (1981) 124 Cal-App.3d 630,638.) This
duty requires a defendant seeking summary judgment to set forth in its moving papers “with
specificity (1) the issues tendered by the complaint or answer which are pertinent to the
surnmary judgment motion and (2) each of the grounds of law upon which the moving party is
relying in asserting that the action has no merit or there is no defense to the action.” (Juge, 12
Cal. App.4th at 67.)
Specifically, “the 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 cach 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).)
“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,
K:Anjpred 986881 chopp- METALC-mj 3 RGA
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONOo we ND
20
2i
22
23
24
25
26
27
28
Inc. v. Wells Fargo Bank, N.A, (2002) 102 Cal_App.4th 308, 316.) “Failure to comply with this
requirement of a separate statement may in the court’s discretion constitute a sufficient ground
for denial of the motion.” (Code of Civ. Proc. § 4370(b)(1).) “Facts stated elsewhere [other
than in the separate statement] need not be considered by the court.” (Fleet y, CBS, Inc, (1996)
30 Cal-App.4th 1911, 1916.)
The sole issues raised by defendant in it’s Separate Statement of Undisputed Material
Facts are the following: (1) that all of Mrs. JUELCH’s exposure to asbestos for which
METALCLAD is responsible is barred by workers compensation; and (2) Mrs. TUELCH was a
sophisticated user. Defendant has not raised any other issue regarding identification, exposure
or defendant’s negligence. The motion is thus limited to the purely legal issues of the claimed
workers’ compensation bar and alleged sophisticated user status. Plaintiffs therefore limit their
response to the two issues raised...
B. PLAINTIFF’S EXPOSURE TO ASBESTOS ARISING FROM NON: JOB-
RELATED ARE NOT BARRED BY THE EXCLUSIVE REMEDY
PROVISIONS OF CALIFORNIA WORKERS’ COMPENSATION LAW.
1. PLAINTIFF DOES NOT CLAIM METALCLAD TO BE LIABLE FOR.
EXPOSURE TO ASBESTOS RESULTING FROM HER JOB-
RELATED ACTIVITIES
Plaintiff readily concedes that California Labor Code §3600 establishes a workers’
compensation claim as the sole remedy for any injury arising from any injury sustained on work
premises during the course of employment or arising out of job- related activities. Plaintiff
therefore does not base her claim against METALCLAD on any exposure suffered based on any
activity she performed as an employee of METALCLAD or based ‘on any exposure resulting
form the actions of anyone else while she was present on work premises in the course of her
employment with METALCLAD. Nor does she base her claim on any exposure resulting from
any asbestos that she herself may have carried home from a jobsite where she was employed by
METALCLAD. All such exposures are acknowledged to meet the statutory criteria of “arising
out of and in the course of employment” (California Labor Code §3600)
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PLAINTIFFS’ MEMORANDUM OF POINTS AND ALITHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT QR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION2. PLAINTIFF IS NOT BARRED FROM PURSUING A CLAIM FOR
EXPOSURE ARISING FROM NON-JOB-RELATED ACTIVITY
The plain language of Labor Code §3600 limits the exclusive remedy provision to
“injury...arising out of and in the course of employment”. All of defendant’s other statutory
citations either use language echoing the “course of employment” standard or directly refer to
§3600 itself. Although defendant attempts to suggest that the mere existence of an employer-
employee relationship makes a workers’ compensation claim the sole remedy for an injury
caused by an employer (irrespective of when, where and how the injury occurred), this is not the
standard set out under the Labor Code. Nor does the fact that an employee may suffer injury that
is compensable through workers compensation mean that other, or additional injury suffered at
the hands of the employer, but outside the “course of employment” either can or must be
pursued through a workers’ compensation claim.
The exposure suffered by plaintiff from the asbestos-laden dust brought into the family
home by her husband on his person and clothing had nothing whatsoever to do with Mrs.
Juelch’s status as an employee of METALCLAD or any duties or activities associated with such
employment. When she shook out her husband’s dusty clothes it was in her own home after
work. Defendant has not presented any evidence, because it cannot present any evidence that
“but for” employment with METALCLAD she would not have Jaundered her husbands
clothing, thereby exposing herself to additional amounts of the deadly fiber.
Labor Code § 3600 provides in pertinent part:
§ 3600. Conditions essential
(a) Liability for the compensation provided by this division, in lieu of any other liability
whatsoever to any person except as otherwise specifically provided in Sections 3602,
3706, and 4558, shall, without regard to negligence, exist against an employer for any
injury sustained by his or her employees arising out of and in the course of the
employment and for the death of any employee if the injury proximately causes death, in
those cases where the following conditions of compensation concur:
(1) Where, at the time of the injury, both the employer and the employee are subject to
the compensation provisions of this division.
(2) Where, at the time of the injury, the employee is performing service growing
out of and incidental to his or her employment and is acting within the course of
his or her employment.
‘\njuced1 08683 pi opp- ME: » 5 RGA
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION@G) Where the injury is proximately caused by the employment, either with or
without negligence. (emphasis added)
Labor code § 3200 provides, inter alia:
§ 3602. Right to compensation as exclusive remedy against employer; Exceptions
(c) in all cases where the conditions of compensation set forth in Section 3600 do not
concur, the liability of the employer shal] be the same as if this division had not been
Mrs. JUELCH is not attempting to recover in her third party action against defendant for
the exposure and resulting injury based on her own exposure “arising out of and in the course of
the employment” with METALCLAD. Defendant ignores that Mrs, JUELCH’s cleaning of her
husband’s clothes does not arise from her employment. It makes no difference that both Mr.
and Mrs. JUELCH were exposed to asbestos while working for METALCLAD, His take-home
exposure is in addition to what she was exposed to through her work. The exposure to asbestos
from Mrs. JUELCH’s exposure alone, was a proximate cause of harm and rightfully covered by
workers compensation. However, the take-home exposure from Mr. JUELCH’s clothing, for
instance, is another proximate cause, that by itself, rightfully creates a third party tort action.
Mr. TUELCH brought home asbestos fibers on bis clothing and his wife was exposed and
breathed such asbestos.
That this matter lies partly between the Workers’ Compensation courts and this Court
can be evidenced by the analogous situation where a plaintiff was exposed to asbestos arising
out of her employment with METALCLAD at a certain location and in a certain course of
employment, and was also exposed to asbestos while visiting the home of a co-worker whose
asbestos covered clothing exposed her to asbestos. Any exposure resulting in injury from the
co-workers clothing at the co-workers home, unrelated to her course or place of employment
would surely not be covered by the Worker’s Compensation claim against Metalclad. So it is
here. There are two remedies and two forums. One does not exclude the other.
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONSO we WD nH Bw N
An injury is barred by the act if it arises out of the employment, that is the employment
and the injury must be linked in a causal fashion. LaTourette v, WCAB (1998) 17 Cal 4th 644,
when Mrs. JUELCH was home washing Mr. JUELCH’s clothing, she was not at work and she
was in the same position if she had no connection herself with METALCLAD.
“The danger from which the employee’s injury results must be one to which he was
exposed during his employment. All that is required is that the employment be one of the
contributing causes without which the injury would not have occurred.” Maher v. WCAB
(1983) 33 Cal.3d 729, 734. While it is true Mrs. JUELCH suffered exposure and injury from
asbestos while working for METALCLAD, it is also true she suffered injury while not working
for METALCLAD from her husband’s take-home of asbestos on his clothing. Such asbestos on
his clothing did not come from her work. It is completely separate from her own workplace
exposure,
“An injury is said to arise in the course of the employment
when it takes place within the period of employment,
at a place where the employee reasonably may be, and
while he or she is fulfilling his or her duties or engaged
in doing something incidental thereto.”
_ 1A. Larson, The Law of Workmen’s Conrpensation, § 14.00, 1993
‘Here, it is clear that this portion of plaintiff's injury did not arise in the course of
employment. She was neither fulfilling her employment duties at her place of employment or
doing something incident thereto. Mrs. JUELCH’s injuries sustained as a result of laundering
her husbands work-clothes are unrelated to her duties as an employee and unrelated in time or
circumstance to her employment by Metalclad. They are not compensable by workers’
compensation, However, plaintiff is not left without a remedy for that exposure. That remedy
lies in the instant action before this Court.
Defendant argues wrongly, that because Mr. and Mrs. JUELCH worked for
METALCLAD at the same jobsites while married, all of Mrs. JUELCH’s exposure and
asbestos-related disease arose out of her employment. Plaintiffs do not dispute that while Mrs.
JUELCH worked on the job with Mr. JUELCH, her exposure, even if caused by Mr. JUELCH’s
actions, is barred by workers compensation. But defendant discounts or simply ignores that
KAlnyured\OBGSSphopp-METALC mish wed 7 RGA
PLAINTIFFS’ MEMORANDUM OF POINTS AND ALTIORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONmm 2 0 OB WY DH BR WN oe
6S aOR & FSS
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Mrs. JUELCH was exposed to asbestos from asbestos that Mr. JUELCH carried home on his
clothing and she was exposed, not as an employee, but as a spouse washing clothes. Defendant
cites no authority for the argument that “[p/laintiffs’ claim of the alleged secondary exposure
should be barred since all the asbestos fibers at issue, if any, originated on the premises where
Plaintiffs worked as insulators for Metalclad.”
An injury, to be compensable, must be received while the employee is doing the work he
is employed to perform, as a natural incident of that work. Associated O11 Co. v. Industrial Acci.
Com. (1923) 191 Cal 557, 217 P 744, 1923 Cal LEXIS 483.
An injury is compensable only when it is received while the employee is doing the work
he is employed to perform and when it is a natural incident of the work. Pacific Indem. Co, v.
Industrial Acci. Com. (1938, Cal App) 27 Cal App 2d 499. 81 P2d 572, 1938 Cal App LEXIS
7OL.
For an injury to occur in the “course of employment” within this section, the employee
roust be engaged in the work he has been hired to perform, it must occur within the period of
his employment and at a place where he may reasonably be for that purpose while engaged in
performance of his duties or while doing something necessarily incident thereto. Dalgleish v.
Holt (1951, Cal App) 108 Cal App 26.561. 237 P2d 553. 1952 Cal App LEXIS 1705.
For an injury te occur in the course of employment the employee must be engaged in the
work he has been hired to perform or some expectable personal act incidental thereto. and the
injury must occur within the period of his employment and at a place where he may reasonably
be for that purpose. Department of Water & Power v. Workers' Comp. Appeals Bd. (1967, Cal
App 2d Dist) 252 Cal App 2d 744, 60 Cal Rptr 829, 1967 Cal App LEXIS 1563.
Metailclad attempts to expand workers compensation - but under current law Mrs.
JUELCH is not entitled to workers’ compensation for injuries sustained as a spouse laundering
her husbands clothing. Her remedy is limited to redress in this Court.
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PLAINTIFFS’ MEMORANOUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADSUDICATIONom YN AH BF ww
3. NEITHER THE ‘COMING AND GOING RULE” NOR THE “SPECIAL
RO CUPTION HAVE ANY APPLICATION TO THE INSTANT
Defendant’s obfuscatory efforts include citation to a multitude of case involving the
“going and coming” and the “special risk” exception. These case describe circumstances which
account for injuries which while they may occur outside work official work hours or away from
work premises are so closely tied to work activities as to be fairly characterizable as “arising out
of” the employment. Plaintiffs have already conceded that injury plaintiff may have suffered
from asbestos she brought home herself would be subject to “special risk” classification—the
dust would not have been brought home by her but for having worked in and around it in the
course of her employment. The exposure suffered from dust brought home by her husband
however has no such nexus to her employment activities. It is purely a matter of coincidence
that she was employed by METALCLAD at the same time.
Defendant claims that plaintiff's lawsuit strikes at the heart of workers’ compensation
laws and that “if Plaintiff's action succeeds, virtually anyone who claims injury as a result of
occupational exposure to a toxic substance would have a similar route around the exclusive
remedies afforded by workers’ compensation” This assertion might have some credence if
plaintiff were attempting to avoid the workers’ compensation bar by bringing a third parly
action for her own “self-inflicted” take home exposure, but she is not. To bring a third party
claim for injury that did not arise out of the course of employment is entirely consistent with
workers’ compensation law and does not erode its underlying purposes one whit
Cc. PLAINTIFF HAS DISMISSED FALSE REPRESENTATION, CONTRACTOR
LIABILITY AND PUNITIVE DAMAGES
Defendant’s argument on these points are moot.
D. MR. JUELCH’S LOSS OF CONSORTIUM CAUSE IS VALID
Defendant claims that because Mrs. JUELCH’s third party claim is barred by workers
compensation, so is Mr. JUELCH’s loss of consortium. Because Mrs. JUELCH’s third party
claim for Mr. JUELCH’s take-home of asbestos and Mrs. JUELCH’s resulting exposure is not
barred by workers compensation, neither is Mr. JUELCH’s loss of consortium for such injury.
KAlnjured\sO8688\p]dopp METALC-msjwypd 9 RGA
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoD MD NR DH Bw Ww
E. MRS. JUELCH IS NOT BARRED FROM CLAIMING TAKE HOME
EXPOSURE AS A “SOPHISTICATED USER”
Defendant attempts to argue as an affirmative defense that plaintiff's claim is barred
because she was a sophisticated user who was aware of the hazard posed by the asbestos carried
home on the person and clothing of her husband. To raise an affirmative defense, the defendant
must present competent evidence to establish the elements of the defense. Defendant has failed
to do so,
Defendant mis-characterizes testimony regarding her understanding of hazards
associated with asbestos and when she acquired such understanding. Notably, defendant claims
that plaintiff “became aware of the hazards associated with asbestos... the same time she
became an insulator and began her insulator work for Metaclad” In fact the cited testimony
reveals that her first formal schooling regarding hazards of asbestos did not occur until she was
in her third year of work—not at the time she became an insulator and began her insulator work
for Metalclad. The testimony otherwise demonstrates that her understanding regarding asbestos
azards developed over time. (Sce cited testimony re defendant’s UMFs Nos. 22-25.) Not only
as defendant failed to show with any precision what plaintiff knew about asbestos hazards or
when she knew it, it has utterly failed to provide evidence that plaintiff at any time-had such a
sophisticated understanding of the hazards associated with asbestos that she appreciated that a
hazard was presented from take-home asbestos from her husband. Defendant of course would
not have to prove what plaintiff actually knew if it presented evidence of what a similarly
situated insulator at that time period could be expected to know. Defendant's moving papers
however are completely devoid of any such facts. Defendant has completely failed to meet its
urden not simply to suggest a sophisticated user defense but to make a full evidentiary
showing establishing the defense.
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCONCLUSION
Defendant’s argument regarding workers’ compensation is legally erroneous.
Defendant’s effort to raise an affirmative “sophisticated user” defense founders for want of
evidence. Plaintiffs respectfully submit that defendant’s motion should be denied.
Dated: 3/10 [fo BRAYTON*PURCELL LLP
py: 2ST AG
Far Ron G. Archer
‘Attomeys for Plaintiffs
[To 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
contestasbestosTR@braytonlaw.com.]
Ae Snured LoRoseipleopp-METAL Conf wed ll RGA
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION222 RUSH LANDING ROAD
PO BON GIG
NOVATO, CALIFORNIA 94948.6169
(915) 898-4585
BRAYTONS PURCELL LLP
ATTORNEYS AT LAW
oO Mm NR RR BR ON em
poo
PROOF OF SERVICE BY LEXIS-NEXIS E-SERVICE
lam employed in the County of Marin, State of California. [ am over the age of 18
years and am not a party to the within action. My business address is 222 Rush Landing Road,
P.O. Box 6169, Novato, California, 94948-6169.
On March 10, 2010, | electronically served (E-Service), pursuant to General Order No.
158, the following documents:
PLAINTIFFS! MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANT METALCLAD INSULATION CORPORATION’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATION
DECLARATION OF RICHARD M, GRANT IN SUPPORT OF PLAINTIFFS! OPPOSITION
TO DEFENDANT METALCLAD INSULATION CORPORATION’S MOTION FOR :
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
PLAINTIFES' RESPONSE TO DEFENDANT METALCLAD INSULATION
CORPORATION’S SEPARATE STATEMENT OF UNDISPUTED FACTS
PLAINTIEFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
ORDER DENYING DEFENDANT METALCLAD INSULATION CORPORATION’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
on the interested parties in this action by causing Lexis-Nexis E-service program pursuant to
General Order No. 158, to transmit a true copy thereof to the following party(ies):
See Attached Service List
The above document was transmitted by Lexis-Nexis E-Service and the transmission
was reported as complete and without error.
Executed on March 10, 2010, at Novato, California.
i declare under-penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
(Hen erase
jaudia Lucio
Joyce Juelch and Norma Juelch, Sr. v. Asbestos Defendants (B&P)
San Francisco Superior Court Case No. CGC-09-275212
PROOF OF SERVICE BY E-SERVICEDate Created: 3/10/2010-2:50:11 PM
Brayton-Purcell Service List
Created by: LitSepport - Servicelist - Reporting
Matter Number:
Bassi, Edlin, Huie & Blum LLP
351 California Street, Suite 200
San Francisco, CA 94104
4}5-397-9006 “415-397-1339 (fax)
Defendants:
LT, Thorpe & Soa, Jac. (THORPE)
Parker-Hannifin Corporation (PARKHPF)
Hassard Bonnington LLP
Two Embarcadero Center
Suite $800
San Francisco, CA 94111
AN5S-288-9800 415-! 288 9802 (fax)
Defendants:
Sequoia Ventures Inc. (GEQUOA)
McKenna Long & Aldridge
101 California Street
41* Floor
San Francisco, CA 94
415-267-4000 415- aT. 1198 (fax)
Defendants:
Metaiclad Insulation Corporation
(METALC)
Pond North, LLP
350 South Grand Avenue
Suite 3300
Los An neces CA 900°
213-617-6170 Siro 3594 (fax)
Defendants:
Genuine Parts Goupany (GPC) (GPC)
Viacom, inc, (VIACOM)
Seiman Breitman LLP
33 New Montgomery
6" floor
San Francisco, CA 94105
415-979-0400 415-979-2099 (fax)
Defendants:
Douglass Insulation Company, Inc.
(DOUGLS)
108688.001 - doyce Juelch
Becherer, Kannett & Schweitzer
Water Tower
1255 Powell Street
” Emeryville, CA 94608-2604
510-658-3600 510-658-1151 (fax)
Defendants:
Dillingham Construction, N.A., Inc.
(DILGHM)
Law Offices of Glaspy & Glaspy
One Wainut Creek Center
100 Pringle Avenue, Suite 750
Walnut Creek, CA 94596
925-947-1300 925-947-1594 (fax)
Defendants:
Garlock k Sealing Technologies, LLC
(GARLCK)
Morgan, Lewis & Backius LLP
One Market, - Spear Tayee
San Francisco, CA 94105
415-442-1000 415-443-1001 (fax)
Defendants:
Santa Fe Braun, Inc. as Suecessor-in-
“ Interest to C.F. Braun, Inc. (CFBRAN)
Prindle, Amaro, Goetz, Hillyard, Barnes.
& Reinholtz LLP.
One California Street
Suite 1910
San Francisco, CA 9417
415-788-8354 415~ 388 ‘625 (fax)
Defendants;
Consolidated-Insulation, Inc. (CONSOL):
Sonnenschein Nath &R Rosenthal, LLP
$25 Market Street, 26" Floor
San Francisco, CA 94105-2708
435-882-5000 415-882-0300 (fax)
Defendants:
Rapid-American Corporation (RAPID)
i
mun By : Kizirian, Toril (T8x)
Berry & Berry
P.O. Box 16070
2930 Lakeshore Avenue
Oakland, CA 94610
510-835-8330 510-835-5117 (fax)
Defendants:
Berry & Berry (B&B)
Law Offices of Lucinda L. Storm, Esq.
GOA Third Street
San Francisco, CA 9410
415-777-6990 415~ 479-6992 (fax)
Defendants:
Pacific Gas & Electric Company (PG&E)
Nixon Peabody Lip
One Embarcadero
18" Floor
San Francisco, CA 941)
415-984-8200 866-542. 6538 (fax)
Defendants:
Shell Oi Company (SHLOIL)
Sedgwick, Detert, Moran & Arnold
‘One Market Plaza
Steuart Tower, 8° Floor
San Francisco, CA 94105
415-781-7900 415-781-2635 (fax)
Defendants:
General Electric Company (GE}
Walsworth, Franklin, Bevins & McCall
601 Montgomer: Sliset o Floor
San Francisco,
415-781-7072 4iS2391-6258 (fax)
Defendants:
Hamilton Materials, Inc. (HAM-M)
Quintec Industries, Inc. {QUINTO)
Thomas Dee Engincering ‘., Inc. (DEE)
Preview
1], ALAN R, BRAYTON, ESQ., 8.B. #73685 DAVID R, DONADIO, ESQ., 8.B. #154436 2] RON G, ARCHER, ESQ., S.B. #189429 ELECTRONICALLY BRAYTON PURCELL LLP 3) Attorneys at Law FILED 222 Rush Landmg Road Superior Court of California, 4] P.O. Box 6169 County of San Francisco Novato, California 94948-6169 ‘ MAR 10 2010 5 }| (415) 898-1555 . Clerk of the Court 5 Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.comBY: CHRISTLE ARRIOLA Deputy Clerk 7 Attorneys for Plaintiffs “es 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 || JOYCE JUELCH and ) ASBESTOS 3 NORMA JUELCH, SR., ) No. CGC-09-275212 & Plaintiffs, } PLAINTIFFS’ MEMORANDUM OF Se 2 13 ) POINTS AND AUTHORITIES IN ase. vs. ) OPPOSITION TO DEFENDANT gees 4 ) METALCLAD INSULATION e%2k ASBESTOS DEFENDANTS (BP) ) CORPORATION’S MOTION FOR #228 5 SUMMARY JUDGMENT OR, IN THE Saks ALTERNATIVE, SUMMARY 3 g 5 6 ADJUDICATION a q te Date: March 18, 2010 Time: 9:30 a.m. 18 Dept.: 220, Hon. Harold E. Kahn Trial Date: April 5, 2010 9 Action Filed: May 20, 2009 20 L 21 INTRODUCTION 22 Defendant METALCLAD INSULATION CORPORATION (“MBTALCLAD”), by this 23 || motion, attempts to deny liability for exposure to asbestos suffered by plaintiff, JOYCE 24 || JUELCH, from the asbestos-laden dust brought home by her husband, NORMAN JUELCH, on 25 || his person and on his work clothes which plaintiff laundered. Defendant does not dispute that 26 || such exposure occurred. Rather Defendant argues that the take-home exposure suffered by 27]! plaintiff through her husband should be barred because of an alleged exclusivity of workers’ 28 || compensation laws (Labor code § 3600 et seq.). K.SIrjureds108688ipldoup MBTALC mj wpe 1 RGA PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION11 CGO eB BM DH B® BR Bw Defendant’s Motion must be denied as being without merit. The allegations of plaintiffs } complaint are clear and unambiguous: JOYCE TUELCH was exposed to asbestos by Metalclad both arising out of the course of her employment and arising out of personal actions outside of both the scope and situs of employment, ie. wholly unrelated to her employment. The remedy for the former lies in Workers’ Compensation, The remedy for the latter is this civil action for tort before the California Superior Court. First, METALCLAD erroneously claims that it cannot be liable for plaintiff's exposure to asbestos brought into the family home by her husband because of the “exclusive remedy” provisions of California workers’ compensation law. As defendant would have it; plaintiff is barred from any claim against METALCLAD while she was in its employ, irrespective of the fact that the injury occurred through a route independent of her employment relationship. Defendant is simply wrong. Plaintiff freely admits that she may bring no third party action based on her own job related activities. But the law does not immunize an employer against harm suffered outside of the employer-employee relationship. When Mrs. Juelch shook out her husbands asbestos-laden clothing she did so after work hours, in her own home. METALCLAD has made no showing that these activities were in any fashion a part of, or related in any way to, the job duties of Mrs. Juelch. There is no bar. Defendant’s second contention is that METALCLAD owed no duty to Mrs. Jueich because she was a “sophisticated user” .This claim founders on a lack of evidence. Although defendant cites evidence that plaintiff developed an understanding over the course of her career that there were hazards associated with asbestos, il does not present any evidence demonstrating that plaintiff knew at any time that she was at risk from the asbestos carried home by her husband. To the extent that the evidence shows plaintiff came to understand during her career that asbestos posed certain hazards, defendant has not presented evidence that in the early years of her marriage when she was exposed to take-home dust from her husband that she possessed sufficient understanding of these hazards such as would make her aware of a hazard from take- home dust, Wt ENMojnedut METAL Co} 2 RGA PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONon DW RB BW NY me o i. STATEMENT OF FACTS Defendant acknowledges and does not contradict the claims Mrs. JUELCH was exposed to asbestos as a result of her husband’s take-home of asbestos-containing dust on his clothing during times he was working for METALCLAD. (See defendant’s UMF No. 19.) Defendant acknowledges and does not contradict the claims that Mrs. JUELCH was exposed to asbestos- containing dust while laundering Mr. JUELCH’s asbestos-laden clothing brought home from his work with defendant. Id.) if. A. THE SCOPE OF DEFENDANT’S MOTION IS LIMITED TO THE MATTERS PRESENTED IN IT’S MOVING PAPERS 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.” (luge v. County of Sacramento (1993) 12 Cal-App.4th 59, 66.) “[T]he initial duty to define the issues presented by the complaint and to challenge them factually is on the defendant who seeks a summary judgment.” (Conn v. National Can Corp. (1981) 124 Cal-App.3d 630,638.) This duty requires a defendant seeking summary judgment to set forth in its moving papers “with specificity (1) the issues tendered by the complaint or answer which are pertinent to the surnmary judgment motion and (2) each of the grounds of law upon which the moving party is relying in asserting that the action has no merit or there is no defense to the action.” (Juge, 12 Cal. App.4th at 67.) Specifically, “the 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 cach 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).) “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, K:Anjpred 986881 chopp- METALC-mj 3 RGA PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONOo we ND 20 2i 22 23 24 25 26 27 28 Inc. v. Wells Fargo Bank, N.A, (2002) 102 Cal_App.4th 308, 316.) “Failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code of Civ. Proc. § 4370(b)(1).) “Facts stated elsewhere [other than in the separate statement] need not be considered by the court.” (Fleet y, CBS, Inc, (1996) 30 Cal-App.4th 1911, 1916.) The sole issues raised by defendant in it’s Separate Statement of Undisputed Material Facts are the following: (1) that all of Mrs. JUELCH’s exposure to asbestos for which METALCLAD is responsible is barred by workers compensation; and (2) Mrs. TUELCH was a sophisticated user. Defendant has not raised any other issue regarding identification, exposure or defendant’s negligence. The motion is thus limited to the purely legal issues of the claimed workers’ compensation bar and alleged sophisticated user status. Plaintiffs therefore limit their response to the two issues raised... B. PLAINTIFF’S EXPOSURE TO ASBESTOS ARISING FROM NON: JOB- RELATED ARE NOT BARRED BY THE EXCLUSIVE REMEDY PROVISIONS OF CALIFORNIA WORKERS’ COMPENSATION LAW. 1. PLAINTIFF DOES NOT CLAIM METALCLAD TO BE LIABLE FOR. EXPOSURE TO ASBESTOS RESULTING FROM HER JOB- RELATED ACTIVITIES Plaintiff readily concedes that California Labor Code §3600 establishes a workers’ compensation claim as the sole remedy for any injury arising from any injury sustained on work premises during the course of employment or arising out of job- related activities. Plaintiff therefore does not base her claim against METALCLAD on any exposure suffered based on any activity she performed as an employee of METALCLAD or based ‘on any exposure resulting form the actions of anyone else while she was present on work premises in the course of her employment with METALCLAD. Nor does she base her claim on any exposure resulting from any asbestos that she herself may have carried home from a jobsite where she was employed by METALCLAD. All such exposures are acknowledged to meet the statutory criteria of “arising out of and in the course of employment” (California Labor Code §3600) Wt iit KNljuveid108688ipldhopp METALC ms vod 4 RGA PLAINTIFFS’ MEMORANDUM OF POINTS AND ALITHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT QR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION2. PLAINTIFF IS NOT BARRED FROM PURSUING A CLAIM FOR EXPOSURE ARISING FROM NON-JOB-RELATED ACTIVITY The plain language of Labor Code §3600 limits the exclusive remedy provision to “injury...arising out of and in the course of employment”. All of defendant’s other statutory citations either use language echoing the “course of employment” standard or directly refer to §3600 itself. Although defendant attempts to suggest that the mere existence of an employer- employee relationship makes a workers’ compensation claim the sole remedy for an injury caused by an employer (irrespective of when, where and how the injury occurred), this is not the standard set out under the Labor Code. Nor does the fact that an employee may suffer injury that is compensable through workers compensation mean that other, or additional injury suffered at the hands of the employer, but outside the “course of employment” either can or must be pursued through a workers’ compensation claim. The exposure suffered by plaintiff from the asbestos-laden dust brought into the family home by her husband on his person and clothing had nothing whatsoever to do with Mrs. Juelch’s status as an employee of METALCLAD or any duties or activities associated with such employment. When she shook out her husband’s dusty clothes it was in her own home after work. Defendant has not presented any evidence, because it cannot present any evidence that “but for” employment with METALCLAD she would not have Jaundered her husbands clothing, thereby exposing herself to additional amounts of the deadly fiber. Labor Code § 3600 provides in pertinent part: § 3600. Conditions essential (a) Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur: (1) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division. (2) Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment. ‘\njuced1 08683 pi opp- ME: » 5 RGA PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION@G) Where the injury is proximately caused by the employment, either with or without negligence. (emphasis added) Labor code § 3200 provides, inter alia: § 3602. Right to compensation as exclusive remedy against employer; Exceptions (c) in all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shal] be the same as if this division had not been Mrs. JUELCH is not attempting to recover in her third party action against defendant for the exposure and resulting injury based on her own exposure “arising out of and in the course of the employment” with METALCLAD. Defendant ignores that Mrs, JUELCH’s cleaning of her husband’s clothes does not arise from her employment. It makes no difference that both Mr. and Mrs. JUELCH were exposed to asbestos while working for METALCLAD, His take-home exposure is in addition to what she was exposed to through her work. The exposure to asbestos from Mrs. JUELCH’s exposure alone, was a proximate cause of harm and rightfully covered by workers compensation. However, the take-home exposure from Mr. JUELCH’s clothing, for instance, is another proximate cause, that by itself, rightfully creates a third party tort action. Mr. TUELCH brought home asbestos fibers on bis clothing and his wife was exposed and breathed such asbestos. That this matter lies partly between the Workers’ Compensation courts and this Court can be evidenced by the analogous situation where a plaintiff was exposed to asbestos arising out of her employment with METALCLAD at a certain location and in a certain course of employment, and was also exposed to asbestos while visiting the home of a co-worker whose asbestos covered clothing exposed her to asbestos. Any exposure resulting in injury from the co-workers clothing at the co-workers home, unrelated to her course or place of employment would surely not be covered by the Worker’s Compensation claim against Metalclad. So it is here. There are two remedies and two forums. One does not exclude the other. iif WH Mf K Abjured J0B68é\pICopp METALC msi wpd 6 : RGA PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONSO we WD nH Bw N An injury is barred by the act if it arises out of the employment, that is the employment and the injury must be linked in a causal fashion. LaTourette v, WCAB (1998) 17 Cal 4th 644, when Mrs. JUELCH was home washing Mr. JUELCH’s clothing, she was not at work and she was in the same position if she had no connection herself with METALCLAD. “The danger from which the employee’s injury results must be one to which he was exposed during his employment. All that is required is that the employment be one of the contributing causes without which the injury would not have occurred.” Maher v. WCAB (1983) 33 Cal.3d 729, 734. While it is true Mrs. JUELCH suffered exposure and injury from asbestos while working for METALCLAD, it is also true she suffered injury while not working for METALCLAD from her husband’s take-home of asbestos on his clothing. Such asbestos on his clothing did not come from her work. It is completely separate from her own workplace exposure, “An injury is said to arise in the course of the employment when it takes place within the period of employment, at a place where the employee reasonably may be, and while he or she is fulfilling his or her duties or engaged in doing something incidental thereto.” _ 1A. Larson, The Law of Workmen’s Conrpensation, § 14.00, 1993 ‘Here, it is clear that this portion of plaintiff's injury did not arise in the course of employment. She was neither fulfilling her employment duties at her place of employment or doing something incident thereto. Mrs. JUELCH’s injuries sustained as a result of laundering her husbands work-clothes are unrelated to her duties as an employee and unrelated in time or circumstance to her employment by Metalclad. They are not compensable by workers’ compensation, However, plaintiff is not left without a remedy for that exposure. That remedy lies in the instant action before this Court. Defendant argues wrongly, that because Mr. and Mrs. JUELCH worked for METALCLAD at the same jobsites while married, all of Mrs. JUELCH’s exposure and asbestos-related disease arose out of her employment. Plaintiffs do not dispute that while Mrs. JUELCH worked on the job with Mr. JUELCH, her exposure, even if caused by Mr. JUELCH’s actions, is barred by workers compensation. But defendant discounts or simply ignores that KAlnyured\OBGSSphopp-METALC mish wed 7 RGA PLAINTIFFS’ MEMORANDUM OF POINTS AND ALTIORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONmm 2 0 OB WY DH BR WN oe 6S aOR & FSS voRM RM NN RN 27 Ah AB OR = S Mrs. JUELCH was exposed to asbestos from asbestos that Mr. JUELCH carried home on his clothing and she was exposed, not as an employee, but as a spouse washing clothes. Defendant cites no authority for the argument that “[p/laintiffs’ claim of the alleged secondary exposure should be barred since all the asbestos fibers at issue, if any, originated on the premises where Plaintiffs worked as insulators for Metalclad.” An injury, to be compensable, must be received while the employee is doing the work he is employed to perform, as a natural incident of that work. Associated O11 Co. v. Industrial Acci. Com. (1923) 191 Cal 557, 217 P 744, 1923 Cal LEXIS 483. An injury is compensable only when it is received while the employee is doing the work he is employed to perform and when it is a natural incident of the work. Pacific Indem. Co, v. Industrial Acci. Com. (1938, Cal App) 27 Cal App 2d 499. 81 P2d 572, 1938 Cal App LEXIS 7OL. For an injury to occur in the “course of employment” within this section, the employee roust be engaged in the work he has been hired to perform, it must occur within the period of his employment and at a place where he may reasonably be for that purpose while engaged in performance of his duties or while doing something necessarily incident thereto. Dalgleish v. Holt (1951, Cal App) 108 Cal App 26.561. 237 P2d 553. 1952 Cal App LEXIS 1705. For an injury te occur in the course of employment the employee must be engaged in the work he has been hired to perform or some expectable personal act incidental thereto. and the injury must occur within the period of his employment and at a place where he may reasonably be for that purpose. Department of Water & Power v. Workers' Comp. Appeals Bd. (1967, Cal App 2d Dist) 252 Cal App 2d 744, 60 Cal Rptr 829, 1967 Cal App LEXIS 1563. Metailclad attempts to expand workers compensation - but under current law Mrs. JUELCH is not entitled to workers’ compensation for injuries sustained as a spouse laundering her husbands clothing. Her remedy is limited to redress in this Court. ii Mf Hi KiinjuredJOS68R\oldiopp- METALC shed g RGA PLAINTIFFS’ MEMORANOUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADSUDICATIONom YN AH BF ww 3. NEITHER THE ‘COMING AND GOING RULE” NOR THE “SPECIAL RO CUPTION HAVE ANY APPLICATION TO THE INSTANT Defendant’s obfuscatory efforts include citation to a multitude of case involving the “going and coming” and the “special risk” exception. These case describe circumstances which account for injuries which while they may occur outside work official work hours or away from work premises are so closely tied to work activities as to be fairly characterizable as “arising out of” the employment. Plaintiffs have already conceded that injury plaintiff may have suffered from asbestos she brought home herself would be subject to “special risk” classification—the dust would not have been brought home by her but for having worked in and around it in the course of her employment. The exposure suffered from dust brought home by her husband however has no such nexus to her employment activities. It is purely a matter of coincidence that she was employed by METALCLAD at the same time. Defendant claims that plaintiff's lawsuit strikes at the heart of workers’ compensation laws and that “if Plaintiff's action succeeds, virtually anyone who claims injury as a result of occupational exposure to a toxic substance would have a similar route around the exclusive remedies afforded by workers’ compensation” This assertion might have some credence if plaintiff were attempting to avoid the workers’ compensation bar by bringing a third parly action for her own “self-inflicted” take home exposure, but she is not. To bring a third party claim for injury that did not arise out of the course of employment is entirely consistent with workers’ compensation law and does not erode its underlying purposes one whit Cc. PLAINTIFF HAS DISMISSED FALSE REPRESENTATION, CONTRACTOR LIABILITY AND PUNITIVE DAMAGES Defendant’s argument on these points are moot. D. MR. JUELCH’S LOSS OF CONSORTIUM CAUSE IS VALID Defendant claims that because Mrs. JUELCH’s third party claim is barred by workers compensation, so is Mr. JUELCH’s loss of consortium. Because Mrs. JUELCH’s third party claim for Mr. JUELCH’s take-home of asbestos and Mrs. JUELCH’s resulting exposure is not barred by workers compensation, neither is Mr. JUELCH’s loss of consortium for such injury. KAlnjured\sO8688\p]dopp METALC-msjwypd 9 RGA PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoD MD NR DH Bw Ww E. MRS. JUELCH IS NOT BARRED FROM CLAIMING TAKE HOME EXPOSURE AS A “SOPHISTICATED USER” Defendant attempts to argue as an affirmative defense that plaintiff's claim is barred because she was a sophisticated user who was aware of the hazard posed by the asbestos carried home on the person and clothing of her husband. To raise an affirmative defense, the defendant must present competent evidence to establish the elements of the defense. Defendant has failed to do so, Defendant mis-characterizes testimony regarding her understanding of hazards associated with asbestos and when she acquired such understanding. Notably, defendant claims that plaintiff “became aware of the hazards associated with asbestos... the same time she became an insulator and began her insulator work for Metaclad” In fact the cited testimony reveals that her first formal schooling regarding hazards of asbestos did not occur until she was in her third year of work—not at the time she became an insulator and began her insulator work for Metalclad. The testimony otherwise demonstrates that her understanding regarding asbestos azards developed over time. (Sce cited testimony re defendant’s UMFs Nos. 22-25.) Not only as defendant failed to show with any precision what plaintiff knew about asbestos hazards or when she knew it, it has utterly failed to provide evidence that plaintiff at any time-had such a sophisticated understanding of the hazards associated with asbestos that she appreciated that a hazard was presented from take-home asbestos from her husband. Defendant of course would not have to prove what plaintiff actually knew if it presented evidence of what a similarly situated insulator at that time period could be expected to know. Defendant's moving papers however are completely devoid of any such facts. Defendant has completely failed to meet its urden not simply to suggest a sophisticated user defense but to make a full evidentiary showing establishing the defense. Hit tit Wl Kin wed RGARiplthoppAMETAL Corl wpe 10 RGA PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCONCLUSION Defendant’s argument regarding workers’ compensation is legally erroneous. Defendant’s effort to raise an affirmative “sophisticated user” defense founders for want of evidence. Plaintiffs respectfully submit that defendant’s motion should be denied. Dated: 3/10 [fo BRAYTON*PURCELL LLP py: 2ST AG Far Ron G. Archer ‘Attomeys for Plaintiffs [To 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 contestasbestosTR@braytonlaw.com.] Ae Snured LoRoseipleopp-METAL Conf wed ll RGA PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION222 RUSH LANDING ROAD PO BON GIG NOVATO, CALIFORNIA 94948.6169 (915) 898-4585 BRAYTONS PURCELL LLP ATTORNEYS AT LAW oO Mm NR RR BR ON em poo PROOF OF SERVICE BY LEXIS-NEXIS E-SERVICE lam employed in the County of Marin, State of California. [ am over the age of 18 years and am not a party to the within action. My business address is 222 Rush Landing Road, P.O. Box 6169, Novato, California, 94948-6169. On March 10, 2010, | electronically served (E-Service), pursuant to General Order No. 158, the following documents: PLAINTIFFS! MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATION DECLARATION OF RICHARD M, GRANT IN SUPPORT OF PLAINTIFFS! OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION’S MOTION FOR : SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION PLAINTIFES' RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION’S SEPARATE STATEMENT OF UNDISPUTED FACTS PLAINTIEFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ORDER DENYING DEFENDANT METALCLAD INSULATION CORPORATION’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION on the interested parties in this action by causing Lexis-Nexis E-service program pursuant to General Order No. 158, to transmit a true copy thereof to the following party(ies): See Attached Service List The above document was transmitted by Lexis-Nexis E-Service and the transmission was reported as complete and without error. Executed on March 10, 2010, at Novato, California. i declare under-penalty of perjury under the laws of the State of California that the foregoing is true and correct. (Hen erase jaudia Lucio Joyce Juelch and Norma Juelch, Sr. v. Asbestos Defendants (B&P) San Francisco Superior Court Case No. CGC-09-275212 PROOF OF SERVICE BY E-SERVICEDate Created: 3/10/2010-2:50:11 PM Brayton-Purcell Service List Created by: LitSepport - Servicelist - Reporting Matter Number: Bassi, Edlin, Huie & Blum LLP 351 California Street, Suite 200 San Francisco, CA 94104 4}5-397-9006 “415-397-1339 (fax) Defendants: LT, Thorpe & Soa, Jac. (THORPE) Parker-Hannifin Corporation (PARKHPF) Hassard Bonnington LLP Two Embarcadero Center Suite $800 San Francisco, CA 94111 AN5S-288-9800 415-! 288 9802 (fax) Defendants: Sequoia Ventures Inc. (GEQUOA) McKenna Long & Aldridge 101 California Street 41* Floor San Francisco, CA 94 415-267-4000 415- aT. 1198 (fax) Defendants: Metaiclad Insulation Corporation (METALC) Pond North, LLP 350 South Grand Avenue Suite 3300 Los An neces CA 900° 213-617-6170 Siro 3594 (fax) Defendants: Genuine Parts Goupany (GPC) (GPC) Viacom, inc, (VIACOM) Seiman Breitman LLP 33 New Montgomery 6" floor San Francisco, CA 94105 415-979-0400 415-979-2099 (fax) Defendants: Douglass Insulation Company, Inc. (DOUGLS) 108688.001 - doyce Juelch Becherer, Kannett & Schweitzer Water Tower 1255 Powell Street ” Emeryville, CA 94608-2604 510-658-3600 510-658-1151 (fax) Defendants: Dillingham Construction, N.A., Inc. (DILGHM) Law Offices of Glaspy & Glaspy One Wainut Creek Center 100 Pringle Avenue, Suite 750 Walnut Creek, CA 94596 925-947-1300 925-947-1594 (fax) Defendants: Garlock k Sealing Technologies, LLC (GARLCK) Morgan, Lewis & Backius LLP One Market, - Spear Tayee San Francisco, CA 94105 415-442-1000 415-443-1001 (fax) Defendants: Santa Fe Braun, Inc. as Suecessor-in- “ Interest to C.F. Braun, Inc. (CFBRAN) Prindle, Amaro, Goetz, Hillyard, Barnes. & Reinholtz LLP. One California Street Suite 1910 San Francisco, CA 9417 415-788-8354 415~ 388 ‘625 (fax) Defendants; Consolidated-Insulation, Inc. (CONSOL): Sonnenschein Nath &R Rosenthal, LLP $25 Market Street, 26" Floor San Francisco, CA 94105-2708 435-882-5000 415-882-0300 (fax) Defendants: Rapid-American Corporation (RAPID) i mun By : Kizirian, Toril (T8x) Berry & Berry P.O. Box 16070 2930 Lakeshore Avenue Oakland, CA 94610 510-835-8330 510-835-5117 (fax) Defendants: Berry & Berry (B&B) Law Offices of Lucinda L. Storm, Esq. GOA Third Street San Francisco, CA 9410 415-777-6990 415~ 479-6992 (fax) Defendants: Pacific Gas & Electric Company (PG&E) Nixon Peabody Lip One Embarcadero 18" Floor San Francisco, CA 941) 415-984-8200 866-542. 6538 (fax) Defendants: Shell Oi Company (SHLOIL) Sedgwick, Detert, Moran & Arnold ‘One Market Plaza Steuart Tower, 8° Floor San Francisco, CA 94105 415-781-7900 415-781-2635 (fax) Defendants: General Electric Company (GE} Walsworth, Franklin, Bevins & McCall 601 Montgomer: Sliset o Floor San Francisco, 415-781-7072 4iS2391-6258 (fax) Defendants: Hamilton Materials, Inc. (HAM-M) Quintec Industries, Inc. {QUINTO) Thomas Dee Engincering ‘., Inc. (DEE)