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EUGENE BROWN, IR. (SBN: 079824)
DAVIDA. PEREDA (SBN: 237982)
FILICE BROWN EASSA & MCLEOD LLP
1999 Harrison Street, Suite 1800
Oakland, California. 94612-3520
Telephone: (810) 444-3131
Facsimile: (510) 839-794)
Aftorneys for Defendant
TOSCO REFINING COMPANY; INC,
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
FEB 24 2010
Clerk of the Court
BY: CHRISTLE ARRIOLA
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCE IUELCH AND NORMAN
JUELCH, SR.,
Plaintiffs,
y
ASBESTOS DEFENDANTS (BP),
Defendants.
"MORANDUM OF POINTS AND AUTHORIT
CASE NO. OGC09-275212
MEMORANDUM OF POINTS AND
AUTHORITIES EIN SUPPORT OF TOSCO
REFINING COMPANY, INC’S MOTION
FOR SUMMARY JUDGMENT
Date: March 18,2010
Time: 930m.
Dept: 220
Judge: Hon. Harold E) Kahn
‘rial Date: April 5, 2010
RTT LIAP 62
SL
INC.’S MOTION FOR $ MMARY JUDGMENT
tCOMES NOW. TOSCO REFINING COMPANY, INC. and hereby submits
this
Memorandum of Points and Authorities in Support of its Motion for Summary Judgment.
L
FACTUAL BACKGROUND
Plaintiff Joyce Juelch alleges that she was exposed to asbestos and has consequ
developed hing cancer. Plaintiffs sued the manulaciurers and suppliers of the asbestos-conlaining
products to which she was allegedly exposed, and the premises owners where. the expo:
ently
SULES
allegedly occurred, and other contractors who-allegedly contributed to the exposures, asserting
causes of action for product liability, negligence, and loss.of consortium. As-to “Tosco,
plaintiffs
assert premises liability claim. The claim however, is barred. and there exists no reasonably
obtainable evidence that Tosco caused, or-contributed to plaintiff's exposure to asbestos.
A Plaintiff's Employment And Exposure Histery.
Al deposition, plaintiff testified to an array of circumstances in which she was.exposed to.
asbestos. in 1964, plaintiff worked as.a janitor at the Naval Depot in Stockton. California, and
swept broken and crumbled ceiling tiles on a daily basis. She claims that the Hiles contained
asbestos. In-1968 through 1970, plaintiff lived behind a wrecking yard. where vehicles
dismantled to salvage parts for resale, including brake assemblies. Plaintiff testified t
were:
at
asbestos-containing dust from the wrecking yard routinely blew into her home. In addition, she
assisted in the business, disassembling engines, and was present when brake. and clutch
assemblies were dismantled, resulting in exposure to dust generated from the. brake, cluteh, and
engine components.
In 1969, plaintiff became a licensed vocational nurse, and within a few years, a
registered
nurse. Plaintiff testified that in 1973, she was present during remodel in, and around her nursing
station at Dameron Hospital, Stockton. Plaintiff testified that she spent five hours per day during
cach shift around the construction, which included the demolition, and installation of.
ceiling tiles,
sheetrock, and joint compounds, all of which she testified created a “dusty environment.” In
1979, plaintiff was employed at the San Joaquin Hospital in French Camp, as it underwent a five-
month long upgrade. She testified that during this period, for eight of her twelve hour's
08022 3497
AND AUTHORITIES IN SUPPORT OF TOSCO REFININ
MOTION FOR SUMMARY JUDGMENT
“MEMORANDUM OF POINT
IMPANY’Swas present as insulation, ceiling tiles, and sheetrock were being demolished and reinstalled. All
these materials allegedly contained asbestos.
In 1982, plaintiff changed her-oceupation, becoming an insulator. Throughout her career,
plaintiff has worked at myriad industrial, and commercial facilities in Northern California,
retiring’ in 1992. As an insulator, she removed, and replaced thermal insulation atthe Shell Oil
Refinery, Sutter Memorial Hospital, the Rancho Seco Nuclear Powerhouse, WalMart, and the
Alaska Modules. In performing her own work, as well as being in proximity to other contractors
performing work, plaintiff was exposed to.asbestos-containing pipecovering, block. gaskets,
packing, refractory, and firepreofing. |
In addition to. the occupational exposures, plaintiff testified that in 1972, she built-her own
home, resulting in her exposure to asbestos in sheetrock, and joint and taping compounds which
she.used to construct the interior. Plaintiff also assisted ber husbands perform personal
automotive repair and maintenance, resulting ‘in exposure to asbestos-containing brake, clutch,
and gasket materials.
From 1964 to 2009, plaintiff smoked, on average, twenty cigarettes daily, which equates
toa forty-five.pack year smoking history. From.1964 to the present, plaintiff experienced second
hand exposure to. tobacco from her husbands, who smoked at. the rate. of one-half to two packs per.
day. As indicated, plaintiff now claims that she has developed lung cancer.
BL Plaintiff's Premises Liability Claim As To Tosco.
Plaintiff's premises liability claim as to Tosco arises from her brief stint In 1983 at its
Avon Refinery working as.an apprentice insulator for Plant Insulation, au insulation contractor
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who was hired to install insulation at the refinery: But, as an employee.ofa hired contractor, if |
plaintiff incurred any. injury as a result of the work contracted for, Privette v. Superior Court i
(1993) 5. Cal 4th 689, and its progeny restrict plaintiff's recovery to worker's compensation, and |
preclude Tosco’s liability, Plaintifftestified that she worked at the refinery for approximately |
two months, and that as. an apprentice, her. duties consisted of delivering materials to journeymen |
insulators in her crew, and staging and cleaning Plant Insulation’s work areas. In all her time at
the refinery, she saw Plant Insulation journeymen insulators remove insulation on a lew
050
977 DAP
~3e MWA
MOTION FOR SUMMARY JUDGMENToccasions, totaling four and one half, to-five hours. ‘She testified that on these. occasions, Plant
Insulation jeurneymen removed patches of pipecovering to.afford pipefitiers access to flanges,
valves, and sections of piping. Plaintiff collected the patches to discard them. She does not know |
if the patches she encountered contained asbestos, or when or by whom the insulation had been
installed. She does not know if-the constituent components of the insulation have. been tested for
asbestos.content, or where they could be obtained now to allow for testing. Plaintiff testified that
she.also observed other contractors removing patches of pipe-covering, but does not know if they
contained asbestos, or when, or by whom the insulation was installed. All these activities
occurred during the.course, andin the scope. of the. work. Plant Insulation was hired to perform at
the refinery. As such, Priverte and its progeny preclude Tosco’s liability for plaintiff's exposure,
if any, experienced consequent to these activities, Moreover, plaintiff testified that ‘Tosco did not
contro! the operative details of her work, or furnish the.tools or materials used by Plant Insulation.
Plaintiff further testified that Toseo:employees did not remove, or install any asbestos-containing
products while she worked at the refinery,
In an effort to circumvent Priverie, it is anticipated that plaintiff will contend that Tosco
maintenance-personnel near her work area, swept pea.gravel which created dust, and that the dust
may have contained asbestos fibers. At deposition, plaintiff testified that Tosca maintenance
crews roamed areas in the refinery using brooms and rakes to clean up debris and that this work
generated dust. Plaintiff further testified however, that she.did not know if the dust had been
tested for asbestos content, or if it contained asbestos. 'Today,.there-is no. way to ascertain if
either the dust that was allegedly created, or the pea gravel ilself contained asbestos when
plaintiff was at the refinery in 1983. To conclude with any scientific certainty if it did or not, «
bulk sample of the dust would need to be tested by-an analytical laboratory. But, due to the
passage of time, weather conditions, and other activities at the refinery. there is ne way to test the
dust now to determine if the dust and debris contained asbestos in 1983. Without testing it, the
notion that #t may have contained asbestos is pure speculation. As such, there is no existing or
reasonably obtainable evidence that the alleged cleanup activities of Tosco personnel resulted in
plaintiff's exposure to asbestos.
MOTION FOR SUMMARY JUDGMENT28
PBEGM
Besides the sweeping activity described by plaintiff, the material witnesses in this action
cannot testify. to any independent act of Tosco upon-which plaintiffs counsel can begin to argue
could have resulted in plaintiff's exposure to asbestos. In response.to. the-Court’s Trial Setting
Order that plaintiffs disclose.all percipient witnesses as to each defendant’s conduct in allegedly
causing exposure, plaintiff identified her husband Norman Juelch, and Kenneth Goforth, as to
‘Tosco. Both witnesses were deposed in their own pending disputed asbestosis personal injury
actions and Norman Jucich was again deposed in this action. Gotorth testified that in 1983, he
worked for Plant Insulation at the Avon refinery and that he could. not recall ever observing Tosco.
employees performing work of any type while he worked there, Thus, his testimony provides no
support to plaintifl's claim.
Norman Jueich testified that he commuted with plaintiff to the refinery, but as a
journeyman, installed new insulation working apart from plaintiff. Juelch testified that he did not
remove any existing insulation at the refinery. His counsel stipulated that the new pipecovering
and block insulation that he installed at the refinery was ashestos-free, given that-asbestos had
been phased out of those products by 1983. Juelch testified that he observed Tosco personnel
raking and sweeping pieces.of this insulation that.he was installing along with materials left by
other trades, but had “no.idea” if any of the materials. contained asbestos. Norman Jucleh has
dismissed his ‘claims against Tosco in response to its motion for summary judgment filed in bis
ease. And, like Goforth’s testimony, Juelch’s testimony provides-no support for plaintiff's clains.
‘Thus, the testimony of plaintiff; Norman Juelch,-and Goforth demonstrate that if trial were
to commence now, nonsuit would have to be granted for‘Toseo. Moreover, there is.no reasonably
ablainable evidence that an independent act of Tosco caused plaintifi’s exposure to asbestos, as
plaintiff did not know if the dust she encountered af the refinery contained asbestos, and there is
no way to test it twenty five years after she encountered it, and therefore no way to determine if it
contained asbestos. In other words, considering all existing. and reasonably obtainable evidence,
there is no triable issue of fact regarding the asbestos content of the pea gravel, and therefore no
triable issue of fact regarding ‘Tosco’s independent negligence in causing or contributing to.
plaintiff's alleged exposure to asbestos at the Refinery. Accordingly, summar ¥ judgment i is ,
- O77 PG2S1 74 E
“MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TOSCO REFINING COMPANY
MOTION FOR SUMMARY JUDGMENT
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|Pram see Sa Cate
Pranic wia.sa 9394
warranted to avoid a needless protracted trial.
i.
LEGAL AUTHORITIES AND ARGUMENT
A Summary Judgment Is Statuterily Authorized.
Code of Civil Procedure section 437e provides in pertinent part that:
(a) Any:party may move for summary judgment in any action, or
proceeding if itis contended thatthe action has no merit...
fc) The motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law. ..
(p\(2) A defendant . . . has met his or her burden. of showing that
a cause of.action has no merit if that party bas shown that. one-or
more elements of the. cause. of action, even if not separately
pleaded, cannot be established, or that there is. a complete defense
io that cause of action. Once the defendant or cross-defendant has
met. that burden, the burden shifts to the plaintiff or cros:
complainant to show that a triable issue of one or more material
facts exists as to that cause-of action ora defense thereto...
Summary judgment is designed to eliminate needless trials, as held by the court in Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 838:
The purpose of the law of summary judgment is to provide courts
with a mechanism to cul through the parties’ pleadings in order to
determine, whether, despite their allegations, trial is in fact
necessary to resolve their dispute.
In determining which issues are in dispute, itis necessary to look to the allegations in the
complaint. Hughes v. Western. MacArthur (1987) 192 C.A..3d 951, 956, the court held that:
A civil complaint serves to frame. and limit the issues and to
apprise the defendant of the basis op. which the. plaintiff seeks
recovery. The complaint also limits the proof that may be
submitted, because it advises the court:and the adverse party of
what plaintiff relies on as a cause of action.
Here, plaintifs asseri.a cauge of action as against Tosco based upon premises lability.
But, there exists no reasonably obtainable evidence that Tosco caused or.contributed to plaintill’s
exposure to asbestos, and if trial were to commence now, plaintiffs could not overcome nonsuit,
Asaresult, summary judgment is appropriate.
-6- 05022 34977 DAP 6251742
RANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TOSCO REFINING COMPANY'S
MOTION FOR SUMMARY JUDGMENT
“MEMO!wn
“MEMORANDUM OF POINT
B The Privette Line Of Cases Bar Plaintiffs’ Premises. Liability Claim.
in the Complaint, plaintiff alleges that Tosco maintained a dangerous, or defective
condition at its premises, which caused or contributed to plaintiff's exposure to asbestos, Civil
Code section 1714 provides.the statutory basis underlying this cause of action, and provides in
relevant part that:
{a) Everyone is responsible, not only for the result of his or her
willful acts, but also for an injury occasioned to another by his or her
want of ordinary care or skill in the management of his or her
property or person...
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But, in a series of decisions beginning with Privette v. Superior Coit (1993).5 Cal.4th
689, our Supreme Court has eliminated premises owner liability, for injuries to employces of a
hired contractor arising during the progress of the work contracted for. Plaintiff's remedy for any |
such exposure, if any; is restricted to worker’s compensation, and liability cannot rest with Tosco.
In Privette v. Superior Court (1993) 5 Cal Ath 689, 692, the court held:
When an. employee of the. independent contractor hired to do
dangerous work. suffers a work-related injury, the employee is
entitled to recovery under the state's workers’ compensation system.
‘That statutory scheme, which affords compensation regardless of
fault, advances the same’ policies that underlie the doctrine of peculiar
risk. Thus, when. the contractor's failure to provide safe working
conditions results. in injury to. the contractor's employee, additional
recovery from the person who hired the contractor-a nonnegligent
party-advances no societal interest that.is not already served by the
workers’ compensation system. Accordingly, we join the majority of
jurisdictions in precluding such recovery under the doctrine of
peculiar risk.
Cc. Plant Undertook fo Control The Work Place.
Here, the contract between Tosco and Plant Insulation required that before commencing
work that Plant Insulation would assess all work conditions, and implement appropriate measures |
to avert injury to: its employees and bystanders. These requirements appear at paragraphs 7, 10, |
and 38 of the contract and provide that:
7. EXAMINATION OF SITE:
Unless. otherwise provided, Contractor shall assume entire
responsibility for examination of the site of the work. and for
acquaintance with conditions that may exist or develop during the
De :
MOTION FOR SUMMARY JUDGMENT20 precautions relative.to the risks associated with the work contracted for. The work contracted for,
21 | falls clearly within the purview of rule enunciated in Privinte.
22
~ dD. Tosco Did Not Affirmatively Cause Or Contribute To Plaintiff's Alleged
24 Exposure te Asbestos At The Refinery.
24 ‘fhe Privetie bar to recovery is abridged only where the hirer’s independent negligence,
25 | affirmatively contributes to the contractor's employee’s injury. To this point Haning, et al.,
26 | Personal Injury (The Rutter Group 2010) § 2:343:1, provides:
‘
i term of the contract. i
: |
10. CONTRACTOR’S SUPERVISION AND CONTROL-OF WORK:
° Contractor agrees to utilize his best skill and judgment in performing
4 i the Work and to cooperate with Company.in every way. Contractor i
agrees to provide competent supervision and direction and to '
5 maintain at the jobsite the necessary material, equipment and skilled
workmen to properly prosecute the Work.to completion.
6 (a) Contractor’s Control:
7 Contractor shal! be an independent contractor, and. any provisions of |
8 this contract which may appear to give Company. or Company |
Representative the right to direct Contractor as to details of the doing 1
9 of the work, or to exercise a measure-of control ever the work, shall
be deemed to mean, and shall mean, that Contractor shall follow the (
0 desires of Company or the Company Representative in the results of |
the work only and not in the means whereby the work is to be
} accomplished, and Contractor shall have complete.and authoritative
contro! over the work as to the details of the doing of the. work.
2 (Emphasis added.)
13 38. SAFETY:
14 Contractor shall take all safety precautions necessary to protect its
employees, invitees, agents, and subcontractors, and the employees
5 and agents thereof, from risks of harm inherent in the nature of the :
work hereunder and shall comply in the performance of the work |
6 with all applicable laws, ordinances, and orders of governmental
bodies and agencies relating to the safety of employees or to safety in
7 the performance of the work, including without limitation all
applicable Safety Orders. of the Division of Industrial Safety of the
8 California Department of Industrial Relations contained in Chapter 4,
Tile 8 of the California Administrative Code; ...
9 ‘Thus, these provisions provide that plaintiff's employer take all necessary safety |
1
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}
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{Tort liability: may-be imposed ona hirer-who affirmatively
contributed to an injury suffered by the contractor's employee.
“MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TO:
MOTION FOR SUMMARY JUDGMENTbo
+5
a
BBE!
fe beter Beate
Here, plaintiff, Goforth, and Juelch testified that ‘Tosco employees did not remove or
install any asbestos-containing product while plaintiff was atthe Refinery. ‘Tosco did not furnish
the tools or materials used by Plant Insulation. The conduct that plaintiff ascribes to Tosco, as
independent acts of negligence involves the alleged sweeping and raking that she observed at
Tosco, While plaintiff claims that dust was created, she does not know that the dust contained,
asbestos. Recognizing that exposure to asbestos forms the basis of plaintiffs claims, this is.a
crucial issue. In order to. determine the constituent components of the dust, one would need to
conduct testing of the dust and debris, or present some other, admissible evidence to support the
claims of exposure. Here, testing now would determine the content of the dust now but could not
be relied upon.to determine the content of the dust over twenty five years.ago. Separate and apart
from the testing, the witnesses identified by plaintiff, cannot establish exposure at the refinery.
Wagner, et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2010) §
8:501 provides that:
To establish a foundation for “experimental evidence,” it must be
shown that the experiment was conducted under the same or similar.
conditions as to those existing when the accident or event took place.
‘This criteria cannot be met due to the passage of time, weather, record destruction
and myriad other conditions.
‘Thus, there is no physical evidence that the pea gravel contained asbestos, nor can any
witness testify to same. Accordingly, the notion that the pea gravel and dust contained asbestos
fiber in 1983, amounts to mere speculation. In Andrews y. Foster Wheeler (2006) 138
Cal. App.4th 96, 108, the court held that:
‘The mere “possibility” of exposure does not create a triable issue of
fact. Jt is not enough to produce just some evidence, ‘The evidence
niust be of sufficient quality to allow the trier of fact to find the
underlying fact in favor of the party opposing the motion for
summary judgment. Notably, plaintiffs cannot manufieture a triable
issne of fact through use of an expert opinion with self-serving
conclusions devoid of any basis, explanation or reasoning. An
expert's opinion rendered without a reasoned explanation of why the
underlying facts lead to the ultimate conclusion has no. evidentiaty
value because an expert opinion is worth no more than the reasons |
and facts on which it is based. |
ie |
Ge 5022 F497? DAP
) REFINING COM
VEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF T
MOTION FOR SUMMARY JUDGMENTi Here, plaintiff does not know that the pea gravel and/or dust contained asbestos, and there
2 | isno reasonably obtainable evidence.that it did. As a result, plaintiff cannot carry her burden of
3 || showing that she was exposed to asbestos-as a consequence of the conduct of Tosco, independent,
4 |. of the work contracted for.
5 i.
6 CONCLUSION
7 laintiff claims to have worked at Tosco’s premises as an employee of a contractor, hired
8 | to perform insulation work there. As aresult, any injury incurred consequent fo the work
9 || contracted for is barred by Privette.and its progeny. More importantly. there is no existing, or
) || reasonably obtainable evidence that Tosco, independently caused, or contributed to-plaintiffs
11 | exposure to asbestos at the refinery. As such, Tosco is entitled to judgment asa matter of law.
BO
Dated: Pebruary “24 2010 Respectfully submitted,
FILICE BROWN EASSA & MCLEOD LLP
LID
JE 2 ei
BY an ne
16. Ep SROWN. JR.
DAVID A. PEREDA
"7 Attorneys for Defendant
TOSCO REFINING COMPANY, INC.
MOTION FOR SUMMARY JUDGMENT
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EUGENE BROWN, IR. (SBN: 079824) DAVIDA. PEREDA (SBN: 237982) FILICE BROWN EASSA & MCLEOD LLP 1999 Harrison Street, Suite 1800 Oakland, California. 94612-3520 Telephone: (810) 444-3131 Facsimile: (510) 839-794) Aftorneys for Defendant TOSCO REFINING COMPANY; INC, ELECTRONICALLY FILED Superior Court of California, County of San Francisco FEB 24 2010 Clerk of the Court BY: CHRISTLE ARRIOLA Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCE IUELCH AND NORMAN JUELCH, SR., Plaintiffs, y ASBESTOS DEFENDANTS (BP), Defendants. "MORANDUM OF POINTS AND AUTHORIT CASE NO. OGC09-275212 MEMORANDUM OF POINTS AND AUTHORITIES EIN SUPPORT OF TOSCO REFINING COMPANY, INC’S MOTION FOR SUMMARY JUDGMENT Date: March 18,2010 Time: 930m. Dept: 220 Judge: Hon. Harold E) Kahn ‘rial Date: April 5, 2010 RTT LIAP 62 SL INC.’S MOTION FOR $ MMARY JUDGMENT tCOMES NOW. TOSCO REFINING COMPANY, INC. and hereby submits this Memorandum of Points and Authorities in Support of its Motion for Summary Judgment. L FACTUAL BACKGROUND Plaintiff Joyce Juelch alleges that she was exposed to asbestos and has consequ developed hing cancer. Plaintiffs sued the manulaciurers and suppliers of the asbestos-conlaining products to which she was allegedly exposed, and the premises owners where. the expo: ently SULES allegedly occurred, and other contractors who-allegedly contributed to the exposures, asserting causes of action for product liability, negligence, and loss.of consortium. As-to “Tosco, plaintiffs assert premises liability claim. The claim however, is barred. and there exists no reasonably obtainable evidence that Tosco caused, or-contributed to plaintiff's exposure to asbestos. A Plaintiff's Employment And Exposure Histery. Al deposition, plaintiff testified to an array of circumstances in which she was.exposed to. asbestos. in 1964, plaintiff worked as.a janitor at the Naval Depot in Stockton. California, and swept broken and crumbled ceiling tiles on a daily basis. She claims that the Hiles contained asbestos. In-1968 through 1970, plaintiff lived behind a wrecking yard. where vehicles dismantled to salvage parts for resale, including brake assemblies. Plaintiff testified t were: at asbestos-containing dust from the wrecking yard routinely blew into her home. In addition, she assisted in the business, disassembling engines, and was present when brake. and clutch assemblies were dismantled, resulting in exposure to dust generated from the. brake, cluteh, and engine components. In 1969, plaintiff became a licensed vocational nurse, and within a few years, a registered nurse. Plaintiff testified that in 1973, she was present during remodel in, and around her nursing station at Dameron Hospital, Stockton. Plaintiff testified that she spent five hours per day during cach shift around the construction, which included the demolition, and installation of. ceiling tiles, sheetrock, and joint compounds, all of which she testified created a “dusty environment.” In 1979, plaintiff was employed at the San Joaquin Hospital in French Camp, as it underwent a five- month long upgrade. She testified that during this period, for eight of her twelve hour's 08022 3497 AND AUTHORITIES IN SUPPORT OF TOSCO REFININ MOTION FOR SUMMARY JUDGMENT “MEMORANDUM OF POINT IMPANY’Swas present as insulation, ceiling tiles, and sheetrock were being demolished and reinstalled. All these materials allegedly contained asbestos. In 1982, plaintiff changed her-oceupation, becoming an insulator. Throughout her career, plaintiff has worked at myriad industrial, and commercial facilities in Northern California, retiring’ in 1992. As an insulator, she removed, and replaced thermal insulation atthe Shell Oil Refinery, Sutter Memorial Hospital, the Rancho Seco Nuclear Powerhouse, WalMart, and the Alaska Modules. In performing her own work, as well as being in proximity to other contractors performing work, plaintiff was exposed to.asbestos-containing pipecovering, block. gaskets, packing, refractory, and firepreofing. | In addition to. the occupational exposures, plaintiff testified that in 1972, she built-her own home, resulting in her exposure to asbestos in sheetrock, and joint and taping compounds which she.used to construct the interior. Plaintiff also assisted ber husbands perform personal automotive repair and maintenance, resulting ‘in exposure to asbestos-containing brake, clutch, and gasket materials. From 1964 to 2009, plaintiff smoked, on average, twenty cigarettes daily, which equates toa forty-five.pack year smoking history. From.1964 to the present, plaintiff experienced second hand exposure to. tobacco from her husbands, who smoked at. the rate. of one-half to two packs per. day. As indicated, plaintiff now claims that she has developed lung cancer. BL Plaintiff's Premises Liability Claim As To Tosco. Plaintiff's premises liability claim as to Tosco arises from her brief stint In 1983 at its Avon Refinery working as.an apprentice insulator for Plant Insulation, au insulation contractor | | | who was hired to install insulation at the refinery: But, as an employee.ofa hired contractor, if | plaintiff incurred any. injury as a result of the work contracted for, Privette v. Superior Court i (1993) 5. Cal 4th 689, and its progeny restrict plaintiff's recovery to worker's compensation, and | preclude Tosco’s liability, Plaintifftestified that she worked at the refinery for approximately | two months, and that as. an apprentice, her. duties consisted of delivering materials to journeymen | insulators in her crew, and staging and cleaning Plant Insulation’s work areas. In all her time at the refinery, she saw Plant Insulation journeymen insulators remove insulation on a lew 050 977 DAP ~3e MWA MOTION FOR SUMMARY JUDGMENToccasions, totaling four and one half, to-five hours. ‘She testified that on these. occasions, Plant Insulation jeurneymen removed patches of pipecovering to.afford pipefitiers access to flanges, valves, and sections of piping. Plaintiff collected the patches to discard them. She does not know | if the patches she encountered contained asbestos, or when or by whom the insulation had been installed. She does not know if-the constituent components of the insulation have. been tested for asbestos.content, or where they could be obtained now to allow for testing. Plaintiff testified that she.also observed other contractors removing patches of pipe-covering, but does not know if they contained asbestos, or when, or by whom the insulation was installed. All these activities occurred during the.course, andin the scope. of the. work. Plant Insulation was hired to perform at the refinery. As such, Priverte and its progeny preclude Tosco’s liability for plaintiff's exposure, if any, experienced consequent to these activities, Moreover, plaintiff testified that ‘Tosco did not contro! the operative details of her work, or furnish the.tools or materials used by Plant Insulation. Plaintiff further testified that Toseo:employees did not remove, or install any asbestos-containing products while she worked at the refinery, In an effort to circumvent Priverie, it is anticipated that plaintiff will contend that Tosco maintenance-personnel near her work area, swept pea.gravel which created dust, and that the dust may have contained asbestos fibers. At deposition, plaintiff testified that Tosca maintenance crews roamed areas in the refinery using brooms and rakes to clean up debris and that this work generated dust. Plaintiff further testified however, that she.did not know if the dust had been tested for asbestos content, or if it contained asbestos. 'Today,.there-is no. way to ascertain if either the dust that was allegedly created, or the pea gravel ilself contained asbestos when plaintiff was at the refinery in 1983. To conclude with any scientific certainty if it did or not, « bulk sample of the dust would need to be tested by-an analytical laboratory. But, due to the passage of time, weather conditions, and other activities at the refinery. there is ne way to test the dust now to determine if the dust and debris contained asbestos in 1983. Without testing it, the notion that #t may have contained asbestos is pure speculation. As such, there is no existing or reasonably obtainable evidence that the alleged cleanup activities of Tosco personnel resulted in plaintiff's exposure to asbestos. MOTION FOR SUMMARY JUDGMENT28 PBEGM Besides the sweeping activity described by plaintiff, the material witnesses in this action cannot testify. to any independent act of Tosco upon-which plaintiffs counsel can begin to argue could have resulted in plaintiff's exposure to asbestos. In response.to. the-Court’s Trial Setting Order that plaintiffs disclose.all percipient witnesses as to each defendant’s conduct in allegedly causing exposure, plaintiff identified her husband Norman Juelch, and Kenneth Goforth, as to ‘Tosco. Both witnesses were deposed in their own pending disputed asbestosis personal injury actions and Norman Jucich was again deposed in this action. Gotorth testified that in 1983, he worked for Plant Insulation at the Avon refinery and that he could. not recall ever observing Tosco. employees performing work of any type while he worked there, Thus, his testimony provides no support to plaintifl's claim. Norman Jueich testified that he commuted with plaintiff to the refinery, but as a journeyman, installed new insulation working apart from plaintiff. Juelch testified that he did not remove any existing insulation at the refinery. His counsel stipulated that the new pipecovering and block insulation that he installed at the refinery was ashestos-free, given that-asbestos had been phased out of those products by 1983. Juelch testified that he observed Tosco personnel raking and sweeping pieces.of this insulation that.he was installing along with materials left by other trades, but had “no.idea” if any of the materials. contained asbestos. Norman Jucleh has dismissed his ‘claims against Tosco in response to its motion for summary judgment filed in bis ease. And, like Goforth’s testimony, Juelch’s testimony provides-no support for plaintiff's clains. ‘Thus, the testimony of plaintiff; Norman Juelch,-and Goforth demonstrate that if trial were to commence now, nonsuit would have to be granted for‘Toseo. Moreover, there is.no reasonably ablainable evidence that an independent act of Tosco caused plaintifi’s exposure to asbestos, as plaintiff did not know if the dust she encountered af the refinery contained asbestos, and there is no way to test it twenty five years after she encountered it, and therefore no way to determine if it contained asbestos. In other words, considering all existing. and reasonably obtainable evidence, there is no triable issue of fact regarding the asbestos content of the pea gravel, and therefore no triable issue of fact regarding ‘Tosco’s independent negligence in causing or contributing to. plaintiff's alleged exposure to asbestos at the Refinery. Accordingly, summar ¥ judgment i is , - O77 PG2S1 74 E “MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TOSCO REFINING COMPANY MOTION FOR SUMMARY JUDGMENT | |Pram see Sa Cate Pranic wia.sa 9394 warranted to avoid a needless protracted trial. i. LEGAL AUTHORITIES AND ARGUMENT A Summary Judgment Is Statuterily Authorized. Code of Civil Procedure section 437e provides in pertinent part that: (a) Any:party may move for summary judgment in any action, or proceeding if itis contended thatthe action has no merit... fc) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. .. (p\(2) A defendant . . . has met his or her burden. of showing that a cause of.action has no merit if that party bas shown that. one-or more elements of the. cause. of action, even if not separately pleaded, cannot be established, or that there is. a complete defense io that cause of action. Once the defendant or cross-defendant has met. that burden, the burden shifts to the plaintiff or cros: complainant to show that a triable issue of one or more material facts exists as to that cause-of action ora defense thereto... Summary judgment is designed to eliminate needless trials, as held by the court in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 838: The purpose of the law of summary judgment is to provide courts with a mechanism to cul through the parties’ pleadings in order to determine, whether, despite their allegations, trial is in fact necessary to resolve their dispute. In determining which issues are in dispute, itis necessary to look to the allegations in the complaint. Hughes v. Western. MacArthur (1987) 192 C.A..3d 951, 956, the court held that: A civil complaint serves to frame. and limit the issues and to apprise the defendant of the basis op. which the. plaintiff seeks recovery. The complaint also limits the proof that may be submitted, because it advises the court:and the adverse party of what plaintiff relies on as a cause of action. Here, plaintifs asseri.a cauge of action as against Tosco based upon premises lability. But, there exists no reasonably obtainable evidence that Tosco caused or.contributed to plaintill’s exposure to asbestos, and if trial were to commence now, plaintiffs could not overcome nonsuit, Asaresult, summary judgment is appropriate. -6- 05022 34977 DAP 6251742 RANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TOSCO REFINING COMPANY'S MOTION FOR SUMMARY JUDGMENT “MEMO!wn “MEMORANDUM OF POINT B The Privette Line Of Cases Bar Plaintiffs’ Premises. Liability Claim. in the Complaint, plaintiff alleges that Tosco maintained a dangerous, or defective condition at its premises, which caused or contributed to plaintiff's exposure to asbestos, Civil Code section 1714 provides.the statutory basis underlying this cause of action, and provides in relevant part that: {a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person... i | | | i But, in a series of decisions beginning with Privette v. Superior Coit (1993).5 Cal.4th 689, our Supreme Court has eliminated premises owner liability, for injuries to employces of a hired contractor arising during the progress of the work contracted for. Plaintiff's remedy for any | such exposure, if any; is restricted to worker’s compensation, and liability cannot rest with Tosco. In Privette v. Superior Court (1993) 5 Cal Ath 689, 692, the court held: When an. employee of the. independent contractor hired to do dangerous work. suffers a work-related injury, the employee is entitled to recovery under the state's workers’ compensation system. ‘That statutory scheme, which affords compensation regardless of fault, advances the same’ policies that underlie the doctrine of peculiar risk. Thus, when. the contractor's failure to provide safe working conditions results. in injury to. the contractor's employee, additional recovery from the person who hired the contractor-a nonnegligent party-advances no societal interest that.is not already served by the workers’ compensation system. Accordingly, we join the majority of jurisdictions in precluding such recovery under the doctrine of peculiar risk. Cc. Plant Undertook fo Control The Work Place. Here, the contract between Tosco and Plant Insulation required that before commencing work that Plant Insulation would assess all work conditions, and implement appropriate measures | to avert injury to: its employees and bystanders. These requirements appear at paragraphs 7, 10, | and 38 of the contract and provide that: 7. EXAMINATION OF SITE: Unless. otherwise provided, Contractor shall assume entire responsibility for examination of the site of the work. and for acquaintance with conditions that may exist or develop during the De : MOTION FOR SUMMARY JUDGMENT20 precautions relative.to the risks associated with the work contracted for. The work contracted for, 21 | falls clearly within the purview of rule enunciated in Privinte. 22 ~ dD. Tosco Did Not Affirmatively Cause Or Contribute To Plaintiff's Alleged 24 Exposure te Asbestos At The Refinery. 24 ‘fhe Privetie bar to recovery is abridged only where the hirer’s independent negligence, 25 | affirmatively contributes to the contractor's employee’s injury. To this point Haning, et al., 26 | Personal Injury (The Rutter Group 2010) § 2:343:1, provides: ‘ i term of the contract. i : | 10. CONTRACTOR’S SUPERVISION AND CONTROL-OF WORK: ° Contractor agrees to utilize his best skill and judgment in performing 4 i the Work and to cooperate with Company.in every way. Contractor i agrees to provide competent supervision and direction and to ' 5 maintain at the jobsite the necessary material, equipment and skilled workmen to properly prosecute the Work.to completion. 6 (a) Contractor’s Control: 7 Contractor shal! be an independent contractor, and. any provisions of | 8 this contract which may appear to give Company. or Company | Representative the right to direct Contractor as to details of the doing 1 9 of the work, or to exercise a measure-of control ever the work, shall be deemed to mean, and shall mean, that Contractor shall follow the ( 0 desires of Company or the Company Representative in the results of | the work only and not in the means whereby the work is to be } accomplished, and Contractor shall have complete.and authoritative contro! over the work as to the details of the doing of the. work. 2 (Emphasis added.) 13 38. SAFETY: 14 Contractor shall take all safety precautions necessary to protect its employees, invitees, agents, and subcontractors, and the employees 5 and agents thereof, from risks of harm inherent in the nature of the : work hereunder and shall comply in the performance of the work | 6 with all applicable laws, ordinances, and orders of governmental bodies and agencies relating to the safety of employees or to safety in 7 the performance of the work, including without limitation all applicable Safety Orders. of the Division of Industrial Safety of the 8 California Department of Industrial Relations contained in Chapter 4, Tile 8 of the California Administrative Code; ... 9 ‘Thus, these provisions provide that plaintiff's employer take all necessary safety | 1 ] } | | { i i | {Tort liability: may-be imposed ona hirer-who affirmatively contributed to an injury suffered by the contractor's employee. “MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TO: MOTION FOR SUMMARY JUDGMENTbo +5 a BBE! fe beter Beate Here, plaintiff, Goforth, and Juelch testified that ‘Tosco employees did not remove or install any asbestos-containing product while plaintiff was atthe Refinery. ‘Tosco did not furnish the tools or materials used by Plant Insulation. The conduct that plaintiff ascribes to Tosco, as independent acts of negligence involves the alleged sweeping and raking that she observed at Tosco, While plaintiff claims that dust was created, she does not know that the dust contained, asbestos. Recognizing that exposure to asbestos forms the basis of plaintiffs claims, this is.a crucial issue. In order to. determine the constituent components of the dust, one would need to conduct testing of the dust and debris, or present some other, admissible evidence to support the claims of exposure. Here, testing now would determine the content of the dust now but could not be relied upon.to determine the content of the dust over twenty five years.ago. Separate and apart from the testing, the witnesses identified by plaintiff, cannot establish exposure at the refinery. Wagner, et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2010) § 8:501 provides that: To establish a foundation for “experimental evidence,” it must be shown that the experiment was conducted under the same or similar. conditions as to those existing when the accident or event took place. ‘This criteria cannot be met due to the passage of time, weather, record destruction and myriad other conditions. ‘Thus, there is no physical evidence that the pea gravel contained asbestos, nor can any witness testify to same. Accordingly, the notion that the pea gravel and dust contained asbestos fiber in 1983, amounts to mere speculation. In Andrews y. Foster Wheeler (2006) 138 Cal. App.4th 96, 108, the court held that: ‘The mere “possibility” of exposure does not create a triable issue of fact. Jt is not enough to produce just some evidence, ‘The evidence niust be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment. Notably, plaintiffs cannot manufieture a triable issne of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation or reasoning. An expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no. evidentiaty value because an expert opinion is worth no more than the reasons | and facts on which it is based. | ie | Ge 5022 F497? DAP ) REFINING COM VEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF T MOTION FOR SUMMARY JUDGMENTi Here, plaintiff does not know that the pea gravel and/or dust contained asbestos, and there 2 | isno reasonably obtainable evidence.that it did. As a result, plaintiff cannot carry her burden of 3 || showing that she was exposed to asbestos-as a consequence of the conduct of Tosco, independent, 4 |. of the work contracted for. 5 i. 6 CONCLUSION 7 laintiff claims to have worked at Tosco’s premises as an employee of a contractor, hired 8 | to perform insulation work there. As aresult, any injury incurred consequent fo the work 9 || contracted for is barred by Privette.and its progeny. More importantly. there is no existing, or ) || reasonably obtainable evidence that Tosco, independently caused, or contributed to-plaintiffs 11 | exposure to asbestos at the refinery. As such, Tosco is entitled to judgment asa matter of law. BO Dated: Pebruary “24 2010 Respectfully submitted, FILICE BROWN EASSA & MCLEOD LLP LID JE 2 ei BY an ne 16. Ep SROWN. JR. DAVID A. PEREDA "7 Attorneys for Defendant TOSCO REFINING COMPANY, INC. MOTION FOR SUMMARY JUDGMENT