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

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McKenna Long &
ALbeinGr LLP
ATTORNEYS AT Law
San Faancisca

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LISA L. OBERG (BAR NO. 120139)
DANIEL B. DANIEL B. HOYE (BAR NO. 139683)
ALECIA E. COTTON (BAR NO. 252777)

MCKENNA LONG & ALDRIDGE LLP ELECTRONICALLY
101 California Street FILED
4st Floor Superior Court of California,
San Francisco, CA 94111 County of San Francisco
Telephone: (415) 267-4000

Facsimile: (415) 267-4198 MAR 03 2010
Attomeys for Defendant BY ALISON ae puty Clerk

METALCLAD INSULATION CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

County OF SAN FRANCISCO

JOYCE JUELCH and Case No. CGC-09-275212
NORMAN JUELCH, SR.,
SEPARATE STATEMENT OF UNDISPUTED

Plaintiffs, MATERIAL Facts IN Support OF DEFENDANT
METALCLAD INSULATION CORPORATION’S
v. MOTION FOR SUMMARY JUDGMENT OR IN
THE ALTERNATIVE, SUMMARY ADJUDICATION
ASBESTOS DEFENDANTS (BP), OF Issues
Defendants. [Filed concurrently with Notice of Motion;

Memorandum of Points & Authorities;
Declaration of Alecia E. Cotton; Exhibits and
[Proposed] Order]

DATE: March 18, 2010
TIME: 9:30 a.m.

Dept.: 220

JupGe: Hon. Harold E. Kahn

TRIAL DATE: April 5, 2010

Defendant METALCLAD INSULATION CORPORATION (“Metalclad” or
“Defendant”) hereby submits the following Separate Statement of Undisputed Material Facts and
Supporting Evidence in support of its Motion For Summary Judgment Or In The Alternative,
Motion For Summary Adjudication Of Issues. Unless otherwise stated, all Exhibits are attached

to the Declaration of Alecia E. Cotton.

SEPARATE STATEMENT OF UNDISFUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALCLAD INSULATION CORPORATION'S.
MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
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McKenna Lona &
ALDRIDGE LLP.
ATTORNEYS AT LAW
San FRANCISCO

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UNbISPUTED MATERIAL Facts EVIDENTIARY SUPPORT

Issue No. |

Issue No. 2

Issue No. 3

Issue No. 4

Issue No. 5

Issue No. 6

Plaintiffs’ First cause of action for Negligence fails as a matter of law because
Plaintiffs have insufficient evidence, and cannot reasonably obtain sufficient
evidence, to show that this claim against Metalclad is not barred by the exclusivity
provisions of Catlifornia Labor Code section 3600, et seq. In the alternative, this
claim is barred under the sophisticated user doctrine, pursuant to the California
Supreme Court’s opinion in William Johnson v. American Standard, Inc. (2008)
43 Cal.4th 56, because Plaintiff Joyce Juelch, a union insulator, was sufficiently
knowledgeable, informed and or trained and knew or should have known of the
potential danger associated with the risk of exposure to asbestos.

Plaintiffs’ Second cause of action for Strict Liability fails as a matter of law
because Plaintiffs have insufficient evidence, and cannot reasonably obtain
sufficient evidence, to show that Metalclad distributed or supplied asbestos-
containing products to which Plaintiffs were exposed. In the alternative, this claim
fails because Plaintiffs have insufficient evidence, and cannot reasonabl y obtain
sufficient evidence, to show that this claim against Metalclad is not barred by the
exclusivity provisions of California Laber Code section 3600, et seq.
Additionally, and in the alternative, this claim is barred under the sophisticated
user doctrine, pursuant to the California Supreme Court’s opinion in William
Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, because Plaintiff Joyce
Juelch, a union insulator, was sufficiently knowledgeable, informed and or trained
and knew or should have known of the potential danger associated with the risk of
exposure to asbestos.

Plaintiffs’ Third cause of action for False Representation fails as a matter of law
because Plaintiffs have insufficient evidence, and cannot reasonably obtain
sufficient evidence, to show that this claim against Metalclad is not barred by the
exclusivity provisions of California Labor Code section 3600, ef seg. Plaintiffs’
claim further fails as a matter of law because Plaintiffs have insufficient evidence,
and cannot reasonably obtain evidence, to show that Metalclad intentionally made
a matcrial misrepresentation of fact and that Plaintiffs relied upon the
misrepresentation. Furthermore, Plaintiffs cannot cstablish the essential elements
of this claim against Metalclad.

Plaintiffs’ Fourth cause of action for Premises Owner/Contractor Liability fails as
a matter of law because Plaintiffs have insufficient evidence, and cannot
reasonably obtain sufficient evidence, to show that this claim against Metalclad is
not barred by the exclusivity provisions of California Labor Code section 3600, ef
seq. In the alternative, this claim is barred under the sophisticated user doctrine,
pursuant to the California Supreme Court’s opinion in William Johnson v.
American Standard, Inc. (2008) 43 Cal 4th 56, because Plaintiff Joyce Juelch, a
union insulator, was sufficiently knowledgeable, informed and or trained and knew
or should have known of the potential danger associated with the risk of exposure
to asbestos.

Plaintiffs’ claim for Loss of Consortium must fail as it is derivative of, and
dependent on, Plaintiffs having a valid personal injury cause of action against
Metalclad. As each and every personal injury cause of action alleged fails due to
the exclusivity provisions of California Labor Code section 3600, et seq., Mr.
Juelch’s Loss of Consortium claim fails as well.

Plaintiffs’ claim for Punitive Damages fails as a matter of law because Plaintiffs
have insufficient evidence, and cannot reasonably obtain sufficient evidence, to

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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALCLAD INSULATION CORPORATIONS

SF:2741 3468.1

MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUESSo OD me YR Oh ew we ON

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ANTORNE rs AT LAW
SAN FRARCISCO

UNDISPUTED MATERIAL FACTS

EVIDENTIARY SUPPORT

show that this claim against Metalclad is not barred by the exclusivity provisions
of California Labor Code section 3600, e¢ seq. Plaintiffs’ claim is further without
merit because Plaintiffs have provided insufficient evidence showing that
Metalclad acted in a malicious, oppressive, or fraudulent manner. Furthermore,
Plaintiffs cannot establish the essential elements of this claim against Metalclad.

As TO ALL CAUSES OF ACTION:
15%, 26°, 3° AND 4™ CAUSES OF ACTION
AND CLAIMS For Loss Of CONSORTIUM AND PUNITIVE DAMAGES

[issue Nos. 1-6: Negligence/Strict Liability/False Representation/Premises Owner-Contractor
Liability/Loss Of Consortium/Punitive Damages}

1. On May 20, 2009, Plaintiffs, claiming
generally that Plaintiff Joyce Juelch had been
injured by exposure to asbestos from products
manufactured, distributed or sold by the named
Defendants, filed their Personal Injury
Complaint against various Defendants,
including Defendant Metalclad Insulation
Corporation (“Metalclad or “Defendant”),

2. Plaintiffs contend that Plaintiff Joyce
Juelch was exposed to asbestos-containing
products for which Metalclad and/or Northern
California Insulation, a Metalclad related
company, are responsible and allege the
following causes of action: Negligence, Strict
Liability, False Representation, Premiscs
Owner/Contractor Liability, and Loss of
Consortium.

3. Plaintiffs are also claiming Punitive
Damages.

4. While Plaintiffs allege that Mrs.
Jueich’s exposure to asbestos stemmed from
exposure while employed by Metalclad
Metalclad and Northern California Insulation,
(hereinafter, for purposes of this Motion,
Metalclad and Northern California Insulation
Company are jointly referred to as “Metalclad”
or “Defendant”), Plaintiffs also allege:
“Plaintiff has resided with her husband Norman
Juelch Sr., local 16 insulator since 1981.
Plaintiff recalls she was exposed to asbestos-
containing materials by washing her husband’s
laundry after work. Plaintiff recalls her
husband frequently returned home with
asbestos-containing debris and dust on his
clothes from the jobsite. Plaintiff shook out her
husband’s dusty clothes before washing them

1, Plaintiffs’ Complaint for Personal
Injury and Loss of Consortium-Asbestos with
supporting exhibits and Plaintiffs’ Preliminary
Fact Sheet (“Complaint”), attached as

Exhibit A to Declaration of Alecia E. Cotton in
Support of Defendant’s Motion for Summary
Judgment (“Cotton Decl.”). Unless otherwise
stated, all Exhibits are attached to Cotton Decl.

2, Exhibit A, Plaintiffs’ Complaint, in its
entirety; See also pp. 5-8 of Plaintiffs’ Exhibit
A attached to their Complaint, p. 11 of
Plaintiffs’ Exhibit B attached to their
Complaint, and pp. 17, 21-22 of Plaintiffs’
Exhibit C attached to their Complaint
(wherein, Plaintiffs refer to Defendant as
“Northern California Insulation aka Metalclad
Insulation Corporation.).

3, Exhibit A, Plaintiffs’ Complaint, in its
entirety.

4, Exhibit A, Plaintiffs’ Complaint, p.6.

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“SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALCLAD INSULATION CORPORATIONS
MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

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UNDISPUTED MATERIAL Facts

EVIDENTIARY SUPPORT

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ATTOKNEYS AT LAW

in the garage. Plaintiff recalls vacuuming her
husbands’ car which he drove to and from work
on a daily basis.”

5. Pursuant to the Court Order Granting
Trial Preference and Extending the Discovery
Cut-Off entered January 25, 2010, Plaintiffs
identified the following witnesses against
Metalclad: (1) Mrs. Joyce Juelch; and

(2) Mr. Norman Juelch, Sr.

6. Plaintiff Joyce Juelch was deposed in
this matter over a period of 6 days. At her
deposition, she testified that she married Mr.
Juelch in 1981 and went to apprentice school to
become an insulator in 1982,

7. They did not live together before they
were married.

8. She and her husband Norman Juelch,
Sr. both worked for Metalclad as insulators,
and Mr, Juelch worked alongside Mrs, Juelch at
various jobsites while they were employed by
Metalclad.

9. They continued to work together as
insulators until Mr. Juelch retired in 1989.

10. Mrs. Juelch testified that she laundered
the couple’s work clothes in the family home.

11, She admitted at her deposition that
Plaintiffs have filed a workers’ compensation
claim against their former employers through
the Brayton Purcell law firm.

12. Plaintiff Norman Juelch, Sr. was
deposed in this matter over a period of 3 days.
At his deposition, he testified that Mrs. Juelch
began working as an insulator about one year
after they were married in about 1982 or 1983,
and he provided a list at his deposition of all
the jobsites at which they worked together as
insulators.

13. Mr. Juelch testified that he and Joyce
Juelch worked together as insulators employed

5. Exhibit B, Court Order Granting Trial
Preference and Extending the Discovery Cut-
Off entered January 25, 2010; Exhibit C,
Plaintiffs’ Product Identification and Witness
Disclosure dated January 11, 2010, pp. 4-5.

6. Relevant portions of deposition
transcript of Joyce Juelch, Trial Preservation
deposition taken on September 15, 2009, pp.
26:4-8, 26:11-12 and vol. 1, pp. 144:18-20,
144:25-145:3, 147:22-148:4, attached as
Exhibit D to Cotton Decl.

7. Relevant portions of deposition
transcript of Joyce Juelch, vol. 5, pp. 717:13-
17, attached as Exhibit D to Cotton Decl.

8. Relevant portions of deposition
transcript of Joyce Juelch, Trial Preservation
deposition taken on September 15, 2009, pp.
64:7-9, 64:12-19, 90:3-12, 90:16-25, attached
as Exhibit D to Cotton Decl.

9. Relevant portions of deposition
transcript of Joyce Juelch, Trial Preservation
deposition taken on September 15, 2009, p.
94:1-4, attached as Exhibit D to Cotton Dec].

10. _ Relevant portions of deposition
transcript of Joyce Juelch, vol. 5, pp. 723:4-
725:11, 725:25-726:7, attached as Exhibit D to
Cotton Decl.

11. Relevant portions of deposition
transcript of Joyce Juelch, vol. 5, pp. $75:21-
577:2, attached as Exhibit D to Cotton Decl.

12. Relevant portions of deposition
transcript of Norman Juelch, Sr., vol. 1, pp.
18:22-19:23, attached as Exhibit E to Cotton
Decl.

13. Relevant portions of deposition
transcript of Norman Juelch, Sr., vol. 1, pp.

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SAN FRANCISCO

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALCLAD INSULATION CORPORATIONS |
MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE. SUMMARY AQJUDICATION OF ISSUES |

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McKenna LONG &
ALDRIDCE LLP
Aviuantys At Law
SAN FRANCISCO:

UNDISPUTED MATERIAL FACTS

EVIDENTIARY SUPPORT.

by Metalclad at the following sites: Shell Oil,
Campbell Soup, Pacific Bell, Lassen College,
Corn Products and Modules Alaska.

14. He further testified that they worked
together at Valmy Power Station, Tosco, Shell
Oil and Rancho Seco but for employers other
than Metalclad.

15. He testified that Joyce Juelch laundered
work clothes, but that she never washed the
outside or cleaned the inside of his work
vehicle.

16. Additionally, Mrs. Juelch testified that
she worked with her husband Norman Juelch,
Sr. as an insulator for Metalclad at the
following sites: Shell Oil, Pacific Bell,
Campbell Soup, Cheese Factory, Modules
Alaska, Lassen College and Corn Products.

17. In response to Standard Interrogatories
which required Plaintiffs to specifically
describe each asbestos-containing product
alleged to have caused harm to Mrs. Juelch,
including the dates and locations of such
exposure, Plaintiffs list Mrs. Juelch’s
employment history in the 1980s for
approximately four different insulating
companies, one of those companies being
Metalclad.

18. Plaintiffs also described Mrs. Juelch’s
alleged secondary exposure to asbestos fiber
via Mr. Juelch and his employment history in
the 1980s for approximately four different
insulating companies, again, one of those being
Metalciad.

19, Additionally, in response to Metalclad’s
special discovery intended to elicit the
identification of all facts, witnesses and
documents in support of their claims against
Metalclad, Plaintiffs essentially restated the
allegations in their Complaint and in their
responses to Standard Interrogatories, i.¢., that
Mrs. Juelch was secondarily exposed to
asbestos fibers via her contact with Mr. Juelch
when she laundered work clothing that he wore
while working at jobsites while both Plaintiffs

94:22-75.9, 75:15-22, 92:23-93:5, 99:1-16,
102:16-103:4, 111:15-16, 111:24-112:4, 118:1-
2, vol. 2, pp. 129:15-130:4, attached as
Exhibit E to Cotton Decl.

14. Relevant portions of deposition
transcript of Norman Juelch, Sr., vol. 1, pp.
20:2-8, 20:25-21:21, 47:17-24, 48:25-49:2,
74:22-75:9, vol. 2, pp. 139:23-140:7, 141:5-7,
attached as Exhibit E to Cotton Decl.

15. Relevant portions of deposition
transcript of Norman Juelch, Sr., vol. 2, pp.
180:20-181:25, 184:10-25, attached as
Exhibit E to Cotton Decl.

16. _ Relevant portions of deposition
transcript of Joyce Juelch, vol. 2, pp. 258:16-
25, 261:4-9, vol. 3, pp. 440:22-25, 441:5-9,
443:22-23, 445:22-25, 450:6-10, 450:14-15,
452:7-9, vol. 5, pp. 578:4-8, 578:12-14,
5379:12-22, 609:24-610:8, 610:12-21, 628:1-11,
628:21-629:3, 644:18-22, attached as

Exhibit D to Cotton Decl.

17. G.O. Interrogatories, Set One, in their
entirety and Plaintiffs’ Responses thereto,
attached as Exhibit F to Cotton Decl.; G.O.
Interrogatories, Set Two, in their entirety and
Plaintiffs’ Responses thereto, attached as
Exhibit G to Cotton Decl.

18, G.O. Interrogatories, Set One, in their
entirety and Plaintiffs’ Responses thereto,
attached as Exhibit F to Cotton Decl.; G.O.
Interrogatories, Set Two, in their entirety and
Plaintiffs’ Responses thereto, attached as
Exhibit G to Cotton Decl.

19. Metalclad’s Pre-Trial Interrogatories to
Plaintiffs Nos. 1-24 and 25-36 and Plaintiffs’
responses thereto Nos. 1-24 and 25-36,
attached as Exhibit H to Cotton Decl.;
Metalclad’s Requests for Production of
Documents in their entirety and Plaintiffs’
responses thereto in their entirety, attached as
Exhibit I to Cotton Decl.

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‘SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALCLAD INSULATION CORBORA TIONS
MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

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Atronnurs Ar Law
SAN FRANCISCO

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UNDISPUTED MATERIAL Facts

EVIDENTIARY SUPPORT

were working at those sites and were employed
by Metalclad,

20. Plaintiffs denied all forty-six of
Metalclad’s Request for Admissions.

21. Here, it is clear that exclusivity
provisions of the Labor Code apply to any
injury that Mrs. Juelch may have suffered as a

result of her work as an insulator for Metalclad.

During the time periods when Plaintiffs claim
Mrs. Juelch was exposed to asbestos fibers
originating from Metalclad worksites, she was
an employce of Metalclad as was her husband
and co-worker Mr. Juelch.

22, Plaintiff Joyce Juelch went through
extensive training to become an insulator
during the 1980s, beginning in 1982.

23. This training included education on the
dangers of asbestos and asbestos-containing
thermal insulation products.

24, Plaintiff testified she became aware of
the hazards associated with asbestos exposure

20. — Metalclad’s Request for Admissions to
Plaintiffs Nos. 1-46 and Plaintiffs’ responses
thereto Nos. 1-46, attached as Exhibit J to
Cotton Decl.

21. Relevant portions of deposition
transcript of Joyce Juelch, Trial Preservation
deposition taken on September 15, 2009, pp.
64:7-9, 64:12-19, 90:3-12, 90:16-25, attached
as Exhibit D to Cotton Decl.; Relevant
portions of deposition transcript of Norman
Juelch, Sr., vol. 1, pp. 18:22-19:23, attached as
Exhibit E to Cotton Decl.; Relevant portions of
deposition transcript of Norman Juelch, Sr.,
vol. 1, pp. 74:22-75:9, 75:15-22, 92:23-93:5,
99:1-16, 102:16-103:4, L11:15-16, 111:24-
112:4, 118:1-2, vol. 2, pp. 129:15-130:4,
attached as Exhibit E to Cotton Decl.;
Relevant portions of deposition transcript of
Joyce Jueich, vol. 2, pp. 258:16-25, 261:4-9,
vol, 3, pp. 440:22-25, 441:5-9, 443:22-23,
445:22-25, 450:6-10, 450:14-15, 452:7-9, vol.
5, pp. 578:4-8, 578:12-14, 579:12-22, 609:24-
610:8, 610:12-21, 628:1-11, 628:21-629:3,
644: 18-22, attached as Exhibit D to Cotton
Decl.; G.O. Interrogatories, Set One, in their
entirety and Plaintiffs’ Responses thereto,
attached as Exhibit F to Cotton Decl.; G.O.
Interrogatories, Set Two, in their entirety and
Plaintiffs’ Responses thereto, attached as
Exhibit G to Cotton Decl.; Metalelad’s Pre-
Trial Interrogatories to Plaintiffs Nos. 1-24 and
25-36 and Plaintiffs’ responses thereto Nos. 1-
24 and 25-36, attached as Exhibit H to Cotton
Decl.; Metalclad’s Requests for Production of
Documents in their entirety and Plaintiffs’
responses thereto in their entirety, attached as
Exhibit I to Cotton Decl.

22, Relevant portions of deposition
transcript of Joyce Juelch, vol. 1, pp. 144:18-
145:3, 145:4-146:6, attached as Exhibit D to
Cotton Decl.

23. Relevant portions of deposition
transcript of Joyce Juelch, vol. 1, pp. 145:4-
146:6, 146:13-20, attached as Exhibit D to
Cotton Decl.

24. Relevant portions of deposition
transcript of Joyce Juelch, vol. 1, pp. 147:3-21,

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MCKaNNa LONG &
Avpeince LLP
ATTORNEYS AT LAW
SAN FRANCISCO

UNDISPUTED MATERIAL FACTS

EVIDENTIARY SUPPORT

in the 1980s, the same time she became an
insulator and began her insulation work for
Metalclad at the jobsites in question.

25. She even performed her own intemet
research during the 1980s concerning the
hazards of asbestos associated with her career
choice.

26. Even if Plaintiff demonstrates she was
exposed to asbestos for which Metalclad is
responsible, she is a “sophisticated user,” and
therefore Metaiclad is not liable.

148:16-23, 151:22-152:4, attached as
Exhibit D to Cotton Decl.

25. Relevant portions of deposition
transcript of Joyce Juelch, vol, 1, pp. 153:1-17,
attached as Exhibit D to Cotton Decl.

26. _ Defendant incorporates by reference
UMF Nos, 22-25.

AS TO PLAINTIFFS’ CAUSE OF ACTION FOR NEGLIGENCE

[Issue No. 1: Negligence]

27. Plaintiffs contend that Plaintiff Joyce
Juelch was exposed to asbestos-containing
products for which Metalclad and Northem
California Insulation, a Metalclad related
company, are responsible and allege the
following causes of action: Negligence, Strict
Liability, False Representation, Premises
Owner/Contractor Liability, and Loss of
Consortium,

28. While Plaintiffs allege that Mrs.
Juelch’s exposure to asbestos stemmed from
exposure while employed by Metalclad
Metalclad and Northern California Insulation,
(hereinafter, for purposes of this Motion,
Metalclad and Northern California Insulation
Company are jointly referred to as “Metalclad”
or “Defendant”, Plaintiffs also allege:
“Plaintiff has resided with her husband Norman
Juelch Sr., local 16 insulator since 1981,
Plaintiff recalls she was exposed to asbestos-
containing materials by washing her husband’s
laundry after work. Plaintiff recalls her
husband frequently returned home with
asbestos-containing debris and dust on his
clothes from the jobsite. Plaintiff shook out her
husband’s dusty clothes before washing them
in the garage. Plaintiff recalls vacuuming her
husbands’ car which he drove to and from work
ona daily basis.”

29. __ Pursuant to the Court Order Granting
Trial Preference and Extending the Discovery
Cut-Off entered January 25, 2010, Plaintiffs

27. _ Defendant incorporates by reference
UMF Nos. I and 3; Exhibit A, Plaintiffs’
Complaint, in its entirety, See also pp. 5-8 of
Plaintiffs’ Exhibit A attached to their
Complaint, p. 11 of Plaintiffs’ Exhibit B
attached to their Complaint, and pp. 17, 21-22
of Plaintiffs’ Exhibit C attached to their
Complaint (wherein, Plaintiffs refer to
Defendant as “Northern California Insulation
aka Metalclad Insulation Corporation.).

28. _ Defendant incorporates by reference
UME Nos. | and 3; Exhibit A, Plainti(ts’
Complaint, p.6.

29, _ Defendant incorporates by reference
UMF Nos. | and 3; Exhibit B, Court Order
Granting ‘Trial Preference and Extending the

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UNDISPUTED MATERIAL Facts

EVIDENTIARY SUPPORT

identified the following witnesses against
Metalclad: (1) Mrs. Joyce Juelch; and
(2) Mr. Norman Juelch, Sr.

30. Plaintiff Joyce Juelch was deposed in
this matter over a period of 6 days. At her
deposition, she testified that she married Mr.
Juelch in 1981 and went to apprentice school to
become an insulator in 1982.

31. They did not live together before they
were married.

32. She and her husband Norman Juelch,
Sr. both worked for Metaiclad as insulators,
and Mr, Juelch worked alongside Mrs. Juelch at
various jobsites while they were employed by
Metalclad.

33. They continued to work together as
insulators until Mr. Juelch retired in 1989.

34. Mrs. Juelch also testified that she would
launder the couple’s work clothes in the family
home.

35. She admitted at her deposition that
Plaintiffs have filed a workers’ compensation
claim against their employers through the
Brayton Purcell law firm,

36. Plaintiff Norman Juelch, Sr. was
deposed in this matter over a period of 3 days.
At his deposition, he testified that Mrs. Juetch
began working as an insulator about one year
after they were married in about 1982 or 1983,
and he provided a list at his deposition of all
the jobsites at which they worked together as
insulators.

Discovery Cut-Off entered January 25, 2010;
Exhibit C, Plaintiffs’ Product Identification
and Witness Disclosure dated January 11,
2610, pp. 4-5.

30. _ Defendant incorporates by reference
UMF Nos. | and 3; Relevant portions of
deposition transcript of Joyce Juelch, Trial
Preservation deposition taken on September 15,
2009, pp. 26:4-8, 26:11-12 and vel. 1, pp.
144:18-20, 144:25-145:3, 147:22-148:4,
attached as Exhibit D to Cotton Decl.

31. Defendant incorporates by reference
UMF Nos. | and 3; Relevant portions of
deposition transcript of Joyce Juelch, vol. 5, pp.
717:13-17, attached as Exhibit D to Cotton
Decl.

32. _ Defendant incorporates by reference
UMF Nos. 1 and 3; Relevant portions of
deposition transcript of Joyce Juelch, Trial
Preservation deposition taken on September 15,
2009, pp. 64:7-9, 64:12-19, 90:3-12, 90:16-25,
attached as Exhibit D to Cotton Decl.

33. Defendant incorporates by reference
UME Nos. | and 3; Relevant portions of
deposition transcript of Joyce Juelch, ‘Trial
Preservation deposition taken on September 15,
2009, p. 94:1-4, attached as Exhibit D to
Cotton Decl.

34, _ Defendant incorporates by reference
UMF Nos. I and 3; Relevant portions of
deposition transcript of Joyce Juelch, vol. 5, pp.
723:4-725:11, 725:25-726:7, attached as
Exhibit D to Cotton Decl.

35. _ Defendant incorporates by reference
UMF Nos. I and 3; Relevant portions of
deposition transcript of Joyce Juelch, vol. 5, pp.
Apher, attached as Exhibit D to Cotton
Decl.

36. _ Defendant incorporates by reference
UMF Nos, | and 3; Relevant portions of
deposition transcript of Norman Juelch, Sr.,
vol. 1, pp. 18:22-19:23, attached as Exhibit E
to Cotton Decl.

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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALCLAD INSULATION CORBORATION'S
MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

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McKenna LONG &
Aupripge LLP
ATTORNEYS AT LAW

UNDISPUTED MATERIAL Facts

EVIDENTIARY SUPPORT

37. Mr. Juelch testified that he and Joyce
Juelch worked together as insulators for
Metalclad at the following sites: Shell Oil,
Campbell Soup, Pacific Bell, Lassen College,
Corn Preducts and Modules Alaska.

38. He further testified that they worked
together at Valmy Power Station, Tosco, Shell
Oil and Rancho Seco for other employers.

39, He testified that Joyce Juelch laundered
their work clothes, but that she never washed
the outside or cleaned the inside of his work
vehicle.

40. Additionally, Mrs. Juelch also testified
that she worked with her husband Norman
Juelch, Sr. as an insulator for Metalclad at the
following sites: Shell Oil, Pacific Bell,
Campbell Soup, Cheese Factory, Modules
Alaska, Lassen College and Cor Products.

41, In response to Standard Interrogatories
which required Plaintiffs to specifically
describe each asbestos-containing product
alleged to have caused harm to Mrs. Juelch,
including the dates and locations of such
exposure, Plaintiffs list Mrs. Juelch’s
employment history in the 1980s for
approximately four different insulating
companies, one of those companies being
Metalclad.

42. Plaintiffs also described Mrs. Juelch’s
alleged secondary exposure to asbestos fiber
via Mr. Juelch and his employment history in
the 1980s for approximately four different
insulating companies, again, one of which
being Metalclad.

43. _ Additionally, in response to Metalclad’s
special discovery intended to elicit the

37. _ Defendant incorporates by reference
UMF Nos. | and 3; Relevant portions of
deposition transcript of Norman Juelch, Sr.,
vol. 1, pp. 74:22-75:9, 75:15-22, 92:23-93:5,
99:1-16, 102:16-103:4, 111:15-16, 111:24+
112:4, 118:1-2, vol. 2, pp. 129:15-130:4,
attached as Exhibit E to Cotton Decl.

38. _ Defendant incorporates by reference
UMF Nos, | and 3; Relevant portions of
deposition transcript of Norman Juelch, Sr.,
vol. 1, pp, 20:2-8, 20:25-21:21, 47:17-24,
48:25-49:2, 74:22-75:9, vol. 2, pp. 139:23-
140:7, 141:5-7, attached as Exhibit E to Cotton
Decl.

39, _ Defendant incorporates by reference
UMF Nos. J and 3; Relevant portions of
deposition transcript of Norman Juelch, Sr.,
vol. 2, pp. 180:20-181:25, 184:10-25, attached
as Exhibit E to Cotton Decl.

40. _ Defendant incorporates by reference
UMF Nos. | and 3; Relevant portions of
deposition transcript of Joyce Juelch, vol. 2, pp.
258:16-25, 261:4-9, vol. 3, pp. 440:22-25,
441:5-9, 443:22-23, 445:22-25, 450:6-10,
450:14-15, 452:7-9, vol. 5, pp. 578:4-8,
578:12-14, 579:12-22, 609:24-610:8, 610:12-
21, 628:1-L1, 628:21-629:3, 644:18-22,
attached as Exhibit D to Cotton Decl.

41. Defendant incorporates by reference
UMF Nos. | and 3; G.O. Interrogatories, Set
One, in their entirety and Plaintiffs’ Responses
thereto, attached as Exhibit F to Cotton Decl.;
G.O. Interrogatories, Set Two, in their entirety
and Plaintiffs’ Responses thereto, attached as
Exhibit G to Cotton Decl.

42. _ Defendant incorporates by reference
UMF Nos. 1 and 3; G.O. Interrogatories, Set
One, in their entirety and Plaintiffs’ Responses
thereto, attached as Exhibit F to Cotton Decl.;
G.O. Interrogatories, Set Two, in their entirety
and Plaintiffs’ Responses thereto, attached as
Exhibit G to Cotton Decl.

43. _ Defendant incorporates by reference
UMF Nos. 1 and 3; Metalclad’s Pre-Trial

-9-

San Faanersca:

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALCLAD INSULATION CORPORATION'S
MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

SF27413468.1oO Oe NA A BB &

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28

MCKENNA LONG &
ALDRIGGE LLP
ATTORNEYS AT Law
SAN FRANCIICD.

_ UNDISPUTED MATERIAL FACTS

EVIDENTIARY SUPPORT

identification of all facts, witnesses and
documents in support of their claims against
Metalclad, Plaintiffs essentially restated the
allegations in their Complaint and in their
responses to Standard Interrogatorics, ie, that
Mrs. Juelch was secondarily exposed to
asbestos fibers via her contact with Mr. Juelch
when she laundered his work clothing which he
wore while working at jobsites while both
Plaintiffs were working at those sites and were
employed by Metaiciad.

44, Plaintiffs denied ail forty-six of
Metalclad’s Request for Admissions.

45, _ Here, it is clear that exclusivity
provisions of the Labor Code apply to any
injury that Mrs. Juelch may have suffered as a
result of her work as an insulator for Metalclad.
During the time periods when Plaintiffs claim
Mrs. Juelch was exposed to asbestos fibers
originating from Metalclad worksites, she was
an employee of Metalclad as was her husband
and co-worker Mr. Juelch.

Interrogatories to Plaintiffs Nos. 1-24 and 25-
36 and Plaintiffs’ responses thereto Nos. 1-24
and 25-36, attached as Exhibit H to Cotton
Decl.; Metalclad’s Requests for Production of
Documents in their entirety and Plaintiffs’
responses thereto in their entirety, attached as
Exhibit I to Cotton Decl.

44. Defendant incorporates by reference
UMF Nes. 1 and 3; Metalclad’s Request for
Admissions to Plaintiffs Nos. 1-46 and
Plaintiffs’ responses thereto Nos. 1-46, attached
as Exhibit J to Cotton Decl.

45. _ Defendant incorporates by reference
UMF Nos. | and 3; Relevant portions of
deposition transcript of Joyce Juelch, Trial
Preservation deposition taken on September 15,
2009, pp. 64:7-9, 64:12-19, 90:3-12, 90:16-25,
attached as Exhibit D to Cotton Decl.;
Relevant portions of deposition transcript of
Norman Juelch, Sr., vol. 1, pp. 18:22-19:23,
attached as Exhibit E to Cotton Decl.;
Relevant portions of deposition transcript of
Norman Juelch, Sr., vol. 1, pp. 74:22-75:9,
75:15-22, 92:23-93:5, 99:1-16, 102:16-103:4,
LLL:15-16, 111:24-112:4, 118:1-2, vol. 2, pp.
129:15-130:4, attached as Exhibit E to Cotton
Decl.; Relevant portions of deposition
transcript of Joyce Juelch, vol. 2, pp. 258:16-
25, 261:4-9, vol. 3, pp. 440:22-25, 441:5-9,
443:22-23, 445:22-25, 450:6-10, 450:14-15,
452:7-9, vol. 5, pp. $78:4-8, $78:12-14,
579:12-22, 609:24-610:8, 610:12-21, 628:1-11,
628:21-629:3, 644:18-22, attached as

Exhibit D to Cotton Decl; G.O.
Interrogatories, Set One, in their entirety and
Plaintiffs’ Responses thereto, attached as
Exhibit F to Cotton Decl.; G.O.
Interrogatories, Set Two, in their entirety and
Plaintiffs’ Responses thereto, attached as
Exhibit G to Cotton Decl.; Metalclad’s Pre-
Trial Interrogatories to Plaintiffs Nos. 1-24 and
25-36 and Plaintiffs’ responses thereto Nos. 1-
24 and 25-36, attached as Exhibit H to Cotton
Decl.; Metalclad’s Requests for Production of
Documents in their entirety and Plaintiffs”
responses thereto in their entirety, attached as
Exhibit 1 to Cotton Decl.

~10-

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALCLAD INSULATION CORPORATIONS
MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

SF.27413468.1w

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28

MeKenna LONG &
ALDRIGCE LLP
ATTORNEYS AT LAW
San FRancisee

UNDISPUTED MATERIAL FACTS.

EVIDENTIARY SUPPORT

46. Plaintiff Joyce Juelch went through
extensive training to become an insulator
during the 1980s, beginning in 1982.

47, This training included education on the
dangers of asbestos and asbestos-containing
thermal insulation products.

48. Plaintiff testified she became aware of
the hazards associated with asbestos exposure
in the 1980s, the same time she became an
insulator and began her insulation work for
Metalclad at the jobsites in question.

49. She even performed her own internet
research during the 1980s concerning the
hazards of asbestos associated with her career
choice.

50. Even if Plaintiff demonstrates she was
exposed to asbestos for which Metalclad is
responsible, she is a “sophisticated user,” and
therefore Metalclad is not liable.

46. _ Relevant portions of deposition
transcript of Joyce Juclch, vol. 1, pp. 144:18-
145:3, 145:4-146:6, attached as Exhibit D to
Cotton Decl.

47. Relevant portions of deposition
transcript of Joyce Juelch, vol. 1, pp. 145:4-
146:6, 146:13-20, attached as Exhibit D to
Cotton Decl.

48. Relevant portions of deposition
transcript of Joyce Juelch, vol. 1, pp. 147:3-21,
148:16-23, 151:22-152:4, attached as

Exhibit D to Cotton Decl.

49, Relevant portions of deposition
transcript of Joyce Juelch, vol. 1, pp. 153:1-17,
attached as Exhibit D to Cotton Decl.

50. _ Defendant incorporates by reference
UMF Nos. 46-49,

AS TO PLAINTIFFS’ CAUSE OF ACTION FOR STRICT LIABILITY

lissue No. 2: Strict Liability]

51. Plaintiffs contend that Plaintiff Joyce
Jucich was exposed to asbestos-containing
products for which Metalclad and Northern
California Insulation, a Metalclad related
company, are responsible and allege the
following causes of action: Negligence, Strict
Liability, False Representation, Premises
Owner/Contractor Liability, and Loss of
Consortium.

52. With respect to Metalclad, while
Plaintiffs allege that Mrs. Juelch’s exposure to
asbestos stemmed from exposure while
working for Metalclad, Plaintiffs also allege:
“Plaintiff has resided with her husband Norman
Juelch Sr., local 16 insulator since 1981.
Plaintiff recalls she was exposed to asbestos-
containing materials by washing her husband’s
laundry after work. Plaintiff recalls her
husband frequently returned home with
asbestos-containing debris and dust on his

51. Defendant incorporates by reference
UMF Nos. | and 3; Exhibit A, Plaintiffs’
Complaint, in its entirety; See also pp. 5-8 of
Plaintiffs’ Exhibit A attached to their
Complaint, p. 11 of Plaintiffs’ Exhibit B
attached to their Complaint, and pp. 17, 21-22
of Plaintiffs’ Exhibit C attached to their
Complaint (wherein, Plaintiffs refer to
Defendant as “Northern California Insulation
aka Metalclad Insulation Corporation.).

52. _ Defendant incorporates by reference
UMF Nos. | and 3; Exhibit A, Plaintiffs’
Complaint, p.6.

-L-

‘SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALOLAD INSULATION CORPORATIONS
MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES.

SF 27413468.128

MCKENNA Lone: &
ALoripce LLP
AVIORNEYS AT Law
SAN FRANCISCO

UNDISPUTED MATERIAL FACTS

EVIDENTIARY SUPPORT

clothes from the jobsite. Plaintiff shook out her
husband’s dusty clothes before washing them

in the garage. Plaintiff recalls vacuuming her
husbands’ car which he drove to and from work
on a daily basis.”

53. Pursuant to the Court Order Granting
Trial Preference and Extending the Discovery
Cut-Off entered January 25, 2010, Plaintiffs
identified the following witnesses against
Metalclad: (1) Mrs. Joyce Juelch; and

{2) Mr. Norman Juelch, Sr.

54. Plaintiff Joyce Juelch was deposed in
this matter over a period of 6 days. At her
deposition, she testified that she married Mr.
Juelch in 1981 and went to apprentice schoo! to
become an insulator in 1982.

55. They did not live together before they
were married.

56. She and her husband Norman Juelch,
Sr. both worked for Metalclad as insulators,
and Mr. Juelch worked alongside Mrs. Juelch at
yarious jobsites while they were employed by
Metalclad.

57. They continued to work together as
insulators until Mr. Juelch retired in 1989.

58. Mrs. Juelch also testified that she would
launder the couple’s work clothes in the family
home.

39. She admitted at her deposition that
Plaintiffs have filed a workers’ compensation
claim against their employers through the
Brayton Purcell law firm.

53. _ Defendant incorporates by reference
UMF Nos. | and 3; Exhibit B, Court Order
Granting Trial Preference and Extending the
Discovery Cut-Off entered January 25, 2010;
Exhibit C, Plaintiffs’ Product Identification
and Witness Disclosure dated January 11,
2010, pp. 4-5.

54. Defendant incorporates by reference
UME Nos. | and 3; Relevant portions of
deposition transcript of Joyce Juelch, Trial
Preservation deposition taken on September 15,
2009, pp. 26:4-8, 26:11-12 and vol. 1, pp.
144:18-20, 144:25-145:3, 147:22-148:4,
attached as Exhibit D to Cotton Decl.

55. Defendant incorporates by reference
UMF Nos. | and 3; Relevant portions of
deposition transcript of Joyce Juelch, vol. 5, pp.
717:13-17, attached as Exhibit D to Cotton
Decl.

56. _ Defendant incorporates by reference
UMF Nos. I and 3; Relevant portions of
deposition transcript of Joyce Juelch, Trial
Preservation deposition taken on September 15,
2009, pp. 64:7-9, 64:12-19, 90:3-12, 90:16-25,
attached as Exhibit D to Cotton Decl.

57, _ Defendant incorporates by reference
UMF Nos. I and 3; Relevant portions of
deposition transcript of Joyce Juelch, Trial
Preservation deposition taken on September 15,
2009, p. 94:1-4, attached as Exhibit D to
Cotton Decl.

58. _ Defendant incorporates by reference
UME Nos. | and 3; Relevant portions of
deposition transcript of Joyce Juelch, vol. 5, pp.
723:4-728:11, 725:25-726:7, attached as
Exhibit D to Cotton Decl.

59. _ Defendant incorporates by reference
UMF Nos. | and 3; Relevant portions of
deposition transcript of Joyce Juelch, vol. 5, pp.
P7921-5772, attached as Exhibit D to Cotton
Deel.

-2-

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALCLAD INSULATION CORPORATIONS
MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

SP:27413468.1oC OU RW YM DR OW B® wD eH

28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNENS AT LAW
AN FRANCISCD

UNDISPUTED MATERIAL FACTS

EVIDENTIARY SUPPORT

60. Plaintiff Norman Juelch, Sr. was
deposed in this matter over a period of 3 days.
At his deposition, he testified that Mrs, Juelch
began working as an insulator about one year
after they were married in about 1982 or 1983,
and he provided a list at his deposition of all
the jobsites at which they worked together as
insulators.

61. Mr. Juelch testified that he and Joyce
Juelch worked together as insulators for
Metalclad at the following sites: Shell Oil,
Campbell Soup, Pacific Bell, Lassen College,
Corn Products and Modules Alaska.

62. He further testified that they worked
together at Valmy Power Station, Tosco, Shell
Oil and Rancho Seco for other employers.

63. He testified that Joyce Juelch laundered
their work clothes, but that she never washed
the outside or cleaned the inside of his work
vehicle.

64. — Additionally, Mrs. Jucich also testified
that she worked with her husband Norman
Juelch, Sr. as an insulator for Metalclad at the
following sites: Shell Oil, Pacific Bell,
Campbell Soup, Cheese Factory, Modules
Alaska, Lassen College and Com Products.

65. In response to Standard Interrogatories
which required Plaintiffs to specifically
describe each asbestos-containing product
alleged to have caused harm to Mrs. Juelch,
including the dates and locations of such
exposure, Plaintiffs list Mrs. Juelch’s
employment history in the 1980s for
approximately four different insulating
companies, one of those companies being
Metalclad.

66. Plaintiffs also described Mrs. Juelch’s

60. _ Defendant incorporates by reference
UMF Nos. | and 3; Relevant portions of
deposition transcript of Norman Juelch, Sr.,
vol. 1, pp. 18:22-19:23, attached as Exhibit E
to Cotton Decl.

61. _ Defendant incorporates by reference
UME Nos. | and 3; Relevant portions of
deposition transcript of Norman Juelch, Sr.,
vol. 1, pp. 74:22-75:9, 75:15-22, 92:23-93:5,
99:1-16, 102:16-103:4, 111:15-16, 111:24-
112:4, 118:1-2, vol. 2, pp. 129:15-130:4,
attached as Exhibit E to Cotton Decl.

62. _ Defendant incorporates by reference
UMF Nos. | and 3; Relevant portions of
deposition transcript of Norman Juelch, Sr.,
vol. 1, pp. 20:2-8, 20:25-21:21, 47:17-24,
48:25-49:2, 74:22-75:9, vol. 2, pp. 139:23-
140:7, 141:5-7, attached as Exhibit E to Cotton
Decl.

63. _ Defendant incorporates by reference
UMF Nos, | and 3; Relevant portions of
deposition transcript of Norman Juelch, Sr.,
vol, 2, pp. 180:20-181:25, 184:10-25, attached
as Exhibit E to Cotton Decl.

64. _ Defendant incorporates by reference
UMF Nos. | and 3; Relevant portions of
deposition transcript of Joyce Juetch, vol. 2, pp.
258:16-25, 261:4-9, vol. 3, pp. 440:22-25,
441:5-9, 443:22-23, 445:22-25, 450:6-10,
450:14-15, 452:7-9, vol. 5, pp. 578:4-8,
578:12-14, 579:12-22, 609:24-610:8, 610:12-
21, 628:1-11, 628:21-629:3, 644:18-22,
attached as Exhibit D to Cotton Decl.

65. _ Defendant incorporates by reference
UMF Nos. | and 3; G.O. Interrogatories, Set
One, in their entirety and Plaintiffs’ Responses
thereto, attached as Exhibit F to Cotton Decl.;
G.O. Interrogatories, Set Two, in their entirety
and Plaintiffs’ Responses thereto, attached as
Exhibit G to Cotton Decl.

66. Defendant incorporates by reference

-13-

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALGLAD INSULATION CORPORATION'S
MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

SP227413408.1Ce MD HW BF BN

28

MCKENNA LONG
Avoripce LLP
ATORNEYS AY Law
GAN FRANCISCO

q

UNDISPUTED MATERIAL FACTS

EVIDENTIARY SUPPORT

alleged sccondary exposure to asbestos fiber
via Mr. Juelch and his employment history in
the 1980s for approximately four different
insulating companies, again, one of those being
Metalclad.

67. Additionally, in response to Metaiclad’s
special discovery intended to elicit the
identification of all facts, witnesses and
documents in support of their claims against
Metalclad, Plaintiffs essentially restated the
allegations in their Complaint and in their
responses to Standard Interrogatories, i.e., that
Mrs. Juelch was secondarily exposed to
asbestos fibers via her contact with Mr. Juelch
when she laundered work clothing that he wore
while working at jobsites while both Plaintiffs
were working at those sites and were employed
by Metalclad.

68. Plaintiffs denied all forty-six of
Metalclad’s Request for Admissions.

69. Here, it is clear that exclusivity
provisions of the Labor Code apply to any
injury that Mrs. Juelch may have suffered as a
result of her work as an insulator for Metalclad.
During the time periods when Plaintiffs claim
Mrs. Juelch was exposed to asbestos fibers
originating from Metalclad worksites, she was
an employee of Metalclad as was her husband
and co-worker Mr. Juelch.

UMF Nos. | and 3; G.O. Interrogatories, Set
One, in their entirety and Plaintiffs’ Responses
thereto, attached as Exhibit F to Cotton Decl.;
G.O. interrogatories, Set Two, in their entirery
and Plaintiffs’ Responses thereto, attached as
Exhibit G to Cotton Decl.

67. _ Defendant incorporates by reference
UMF Nos. | and 3; Metalclad’s Pre-Trial
Interrogatories te Plaintiffs Nos. 1-24 and 25-
36 and Plaintiffs’ responses thereto Nos. 1-24
and 25-36, attached as Exhibit H to Cotton
Decl.; Metalclad’s Requests for Production of
Documents in their entirety and Plaintiffs’
responses thereto in their entirety, attached as
Exhibit I to Cotton Decl.

68. _ Defendant incorporates by reference
UMF Nos. | and 3; Metalclad’s Request for
Admissions to Plaintiffs Nos. 1-46 and
Plaintiffs’ responses thereto Nos. 1-46, attached
as Exhibit J to Cotton Decl.

69. _ Defendant incorporates by reference
UMF Nos. | and 3; Relevant portions of
deposition transcript of Joyce Juelch, Trial
Preservation deposition taken on September 15,
2009, pp. 64:7-9, 64:12-19, 90:3-12, 90:16-25,
attached as Exhibit D to Cotton Decl.;
Relevant portions of deposition transcript of
Norman Juelch, Sr., vol. 1, pp. 18:22-19:23,
attached as Exhibit E to Cotton Decl.;
Relevant portions of deposition transcript of
Norman Juelch, Sr., vol. 1, pp. 74:22-75:9,
75:15-22, 92:23-93:5, 99:1-16, 102:16-103:4,
111:15-16, 111:24-112:4, 118:1-2, vol. 2, pp.
129:15-130:4, attached as Exhibit E to Cotton
Decl.; Relevant portions of deposition
transcript of Joyce Juelch, vol. 2, pp. 258:16-
25, 261:4-9, vol. 3, pp. 440:22-25, 441:5-9,
443:22-23, 445:22-25, 450:6-10, 450:14-15,
452:7-9, vol. 5, pp. 578:4-8, 578:12-14,
579:12-22, 609:24-610:8, 610:12-21, 628:1-11,
628:21-629:3, 644:18-22, attached as

Exhibit D to Cotton Decl.; G.O.
Interrogatories, Set One, in their entirety and
Plaintiffs’ Responses thereto, attached as
Exhibit F to Cotton Decl.; G.O.
Interrogatories, Set Two, in their entirety and
Plaintiffs’ Responses thereto, attached as

-14-

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALCLAD INSULATION CORPORATIONS
MOTIGN FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

SF:27413468.1CO OW HN DH FW BR BY

3

11

28

MCKEnna LONG &
ALDRIDGE LLP
ATIORNEYS AT LAW
SAN FRANCISCO

UNDISPUTED MATERIAL FACTS

EVIDENTIARY SUPPORT

70. Plaintiff Joyce Juelch went through
extensive training to become an insulator
during the 1980s, beginning in 1982.

7\. This training included education on the
dangers of asbestos and asbestos-containing
thermal insulation products,

72. Plaintiff testified she became aware of
the hazards associated with asbestos exposure
in the 1980s, the same time she became an
insulator and began her insulation work for
Metalclad at the jobsites in question.

73. She even performed her own internet
research during the 1980s conceming the
hazards of asbestos associated with her career
choice.

74. — Even if Plaintiff demonstrates she was
exposed to asbestos for which Metalclad is
responsible, she is a “sophisticated user,” and
therefore Metalclad is not liable.

75. Additionally, Metalclad began using
asbestos-free calcium silicate pipe, asbestos-
free block insulation, asbestos-free thermal
insulation and asbestos-free insulation mud in
1972.

76. By 1974, Northern California Insulation
Corporation and Metalclad did not purchase or
supply any asbestos thermal insulation
materials.

77. By 1974, Northern California Insulation
Corporation and Metalclad did not install any
asbestos thermal insulation materials at any
jobsite.

Exhibit G to Cotton Decl.; Metalclad’s Pre-
Trial Interrogatories to Plaintiffs Nos. 1-24 and
25-36 and Plaintiff's’ responses thereto Nos. I-
24 and 25-36, attached as Exhibit H to Cotton
Decl.; Metalelad’s Requests for Production of
Documents in their entirety and Plaintiffs’
responses thereto in their entirety, attached as
Exhibit I to Cotton Decl.

70. Relevant portions of deposition

transcript of Joyce Juelch, vol. 1, pp. 144:18-
145:3, 145:4-146:6, attached as Exhibit D to
Cotton Decl.

71. Relevant portions of deposition
transcript of Joyce Juelch, vol. 1, pp. 145:4-
146:6, 146:13-20, attached as Exhibit D to
Cotton Deel.

72. Relevant portions of deposition
transcript of Joyce Juelch, vol. 1, pp. 147:3-21,
148:16-23, 151:22-152:4, attached as

Exhibit D to Cotton Decl.

73. Relevant portions of deposition
transcript of Joyce Juelch, vol. 1, pp. 153:1-17,
attached as Exhibit D to Cotton Decl.

74. _ Defendant incorporates by reference
UMF Nos. 70-73.

75, See Exhibit L to Cotton Decl., the
Declaration of Metalclad’s Project Manager,
Don Trueblocd, in support of Metalclad’s
Motion for Summary Judgment.

76. See Exhibit L to Cotton Decl., the
Declaration of Metalclad’s Project Manager,
Don Trueblood, in support of Metalclad’s
Motion for Summary Judgment.

77. See Exhibit L to Cotton Decl., the
Declaration of Metalclad’s Project Manager,
Don Trueblood, in support of Metalclad’s
Motion for Summary Judgment.

-15-

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT METALCLAD INSULATION CORPORATIONS
MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES.

$F.27413468.128

MCKENNA LONG &
Acorioce LLP
AViORNEYS Ar Law
SAN ERANCISCO

___ UNDISPUTED MATERIAL FACTS

EVIDENTIARY SUPPORT

AS TO PLAINTIFF'S CAUSE OF ACTION FOR FALSE REPRESENTATION

[Issue No. 3: False Representation]

78. There is no evidence that Mrs. Juelch’s
injuries were caused by a willful physical
assault by Metalclad.

79, There is no evidence that Metalclad
fraudulently concealed the existence of any
injury that Mrs. Juelch was allegedly suffering
from in connection with her employment.

80. There is no evidence that Mrs. Juelch’s
alleged injuries were proximately caused by a
defective product manufactured, supplied or
distributed by Metalclad and sold, leased, or
otherwise transferred for valuable consideration
to an independent third person.

81. There is no evidence that Metalclad
intentionally made a ma