Motion-Secondary: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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Bugene C. Blackard Jr. (Bar No. 142090)
Jocelyn M. Soriano (Bar No. 201169)
Jasun C, Molinelli (Bar No. 204456)

jmolinelli@archenorris.com ELECTRONICALLY

ARCHER. NORRIS FILED

A Professional Law Corporation Superior Court of Californi
2033 North Main Street, Suite 800 County of San Froneteea
Walnut Creek, California 94596-3759

Telephone: 925.930.6600 OcT 07 2011
Facsimile: 925.930.6620 oy Sik of the Court
Attorneys for Defendant Deputy Clerk

ALBAY CONSTRUCTION COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA.
COUNTY OF SAN FRANCISCO

CHARLES HUSBAND, Case No. CGC-09-275098

Plaintiffs, REPLY TO PLAINTIFFS’ OPPOSITION
TO ALBAY CONSTRUCTION

v. COMPANY’S MOTION FOR SUMMARY
JUDGMENT, OR, IN THE

ASBESTOS DEFENDANTS (BP), ALTERNATIVE, SUMMARY
ADJUDICATION

Defendant.
Date: October 13, 2011
Time: 9:30 a.m.

Dept.: 503,

Judge: Hon. Terri L. Jackson

Action Filed: March 2, 2009
Trial Date: November 14, 2011

1. INTRODUCTION
At the outset, Plaintiff withdrew his allegations of strict liability and request for punitive
damages as to Albay in responses to Albay’s underlying motion. However, plaintiff alleges, as to
the other causes of action in its complaint against Albay, that Albay has failed to shift the burden
of proof to Plaintiff to show the existence of a triable issue of material fact proving a prima facie

case against Albay.

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Albay contends that it did shift the initial burden to show that such a fact does not exist
and contends further that plaintiff has still failed to show an issue of fact does exist. Albay has
proved affirmative direct and circumstantial evidence that is dispositive to plaintiff's claims.

‘Plaintiff's deposition testimony elicited by Albay is direct evidence that proves Albay did
not cause plaintiff any injury and is “affirmative evidence” under controlling authority rationale,
as discussed below; (2) plaintiff's factually devoid written discovery responses are’ circumstantial
evidence that shows Albay did not cause plaintiff any injury and is “affirmative evidence” under
controlling authority rationale, as discussed below.

In light of the foregoing, and in an attempt to create a triable issue of fact, Plaintiff now
attaches a gross and self-serving Declaration in support of his Opposition to Albay’s summary
judgment. However, this Declaration contradicts Plaintiff's prior testimony, and should be
disregarded by the Court, as discussed below. Even if considered admissible, it is fraught with
speculation and lacks the foundational requirements of an expert to prove that the products
actually contained asbestos or the actions of Albay caused it to be respired by plaintiff.

Plaintiff then relies on the declaration of purported asbestos “expert” Charles Ay, a former
shipyard pipe insulator, who styles himself a “jack-of-all-asbestos-trades,” for the proposition that
certain materials identified in Plaintiff's self-serving declaration “more likely than not” contained
asbestos. However, Mr. Ay is unqualified and also lacking in foundation to offer expert opinion
testimony pertaining to said products, as discussed below.

Even when viewed in the tight most favorable to Plaintiff, the sum total of Plaintiff's
evidence against Albay is the possibility that Albay might have disturbed a product in Plaintiff's
presence that might have contained asbestos. This stream of possibilities necessarily narrowing
into conjecture is insufficient to create a triable issue of material fact sufficient to overcome
Summary Judgment, as a matter of law. Lineaweaver v. Plant Insulation (1 995) 31 Cal. App. 4
1409; McGonnell v. Kaiser Gypsum Company (2002) 98 Cal. App.4" 1098.

At the end of the day, none of the “evidence” Plaintiff relies on to support his claims

against Albay constitutes evidence sufficient to overcome Summary Judgment. In the absence of

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any admissible evidence that raises a triable issue of material fact in this action, Albay
respectfully request that this Court grant its motion for Summary Judgment.
HL DISCUSSION

A. Plaintifi’s Factually Devoid Discovery Responses to Albay’s Written
Discovery Requests Shifts the Burden to Plaintiff,

A moving defendant may rely on factually devoid discovery responses to shift the burden
of proof pursuant to Code of Civil Procedure §437¢(0)(2). Union Bank v, Superior Court (1995)
31 Cal. App.4" 573, 590. So long as discovery is sufficiently tailored to discover facts and
supporting evidence that a particular defendant-contractor was present at a jobsite, the failure of
a plaintiff to provide facts and evidence of the presence of the contractor (or product) at that
jobsite is sufficient to shift the burden as to the issue of causation on a motion for summary
judgment in an asbestos-related action. Scheiding v. Dinwiddie Construction Co. (1999) 39
Cal. App.4" 64, 83.

Plaintiff argues in his Opposition that Albay has not shifted the initial burden under the
rationale in Scheiding and its progeny. However, Albay has affirmatively produced both direct
and circumstantial evidence, and has conducted sufficient discovery defined under all controlling
authorities that shows plaintiff cannot prove the element of causation essential to its claims
against Albay.

It is clear from the review of plaintiff's deposition transcript, attached to Albay’s moving
papers and Plaintiff's opposition, that Albay conducted a more than thorough examination of
plaintiff. Plaintiff's contention that Albay “specifically avoided” asking questions at deposition
to avoid eliciting damaging facts is preposterous and hollow. Plaintiff uses the “if I were asked at
deposition ....” argument which is unfair and unjust. Defendants in San Francsico are limited in
their ability to examine a plaintiff by SFGO No. 129 7.D. to completing its exam of plaintiff in 20
hours. This places an extreme burden on individual defendants where there are defendants
totalling over 30 (as in this case). It is a issue of due process and it is borderline already without

letting plaintiff use it as a sword against defendants.

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It is intended to be used as a shield protect a plaintiff from the ills of overzealous
defendants piling on at deposition and dragging a person through countless hours of stiff
examination. That is understandable, Even though it puts a difficult burden on the individual
defendants, it is balanced by the protection it affords plaintiff's. However, to allow a plaintiff to
use it as a sword to defeat a defendant’s summary judgement by declaring after the deposition
that “if he were asked.. then he would have said ...... ” is completely unjust and utterly frustrates
the intent of the General Order causing it to significantly prejudice defendant’s right to due
process and its ability to defend itself from the contentions of plaintiff.

In this case Albay did everything it could in light of GO 129 to conduct a thourough and
complete examination of plaintiff. A full reading of Albay’s examination of plaintiff at bis
deposition is all that is needed to refute plaintiffs contentions that Albay did not conduct a full
examination of the like that was found by the Court in Hunter v. Pacific Mechanical Corp. (1995)
37 Cal.App.4th 1282, to be sufficient to shift the initial burden to plaintiff to show that there is a
trial issue of material fact worthy of jury consideration.

The Court in Schieiding distinguished itself from Hunter stating. .. “(W)e distinguish the
Hunter case because it involved deposition testimony where plaintiff was specifically asked about
the defendant ... (H)ere, Dinwiddie conducted no discovery. In his deposition plaintiff was not
asked a single question concerning Dinwiddie.” Schieding, supra, 69 Cal. App.4" at 80.

As stated above, plaintiff uses piecemeal quotes from Schieiding to support his contention
that Albay did not conduct discovery to the extent necessary to prove that it did not cause plaintift
any injury thus shifting the initial burden to plaintiff to prove otherwise. Plaintiff has misapplied
Schieding and taken excerpis from the decision and applied them out of context in order to distort
the language of the Court for his own self serving benefit. His is a GROSS misapplication and
misinterpretation of the Schieding case.

In Schieding, the Coutt held that a party cannot simply argue there is an absence of facts
to support the opposing party’s case thus shifting the burden. Schieding, supra, 69 Cal. App.4" at
p. 80. The Court further held that the duty of a party to answer completely only extended so far

as the reasonable ambit of the questions which were asked. Id. In Schieding, the moving patty,

REPLY TO PLAINTIFFS’ OPPOSITION TO ALBAY CONSTRUCTION COMPANY’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION1 | Dinnwiddie, conducted NO discovery and did not ask a single question of plaintiff at deposition.

Therefore, the Court held that the plaintiff had no duty to volunteer information that was not
requested and without the premise of such a duty, the Court was unable to rely on the inference of
(in)completeness that was fundamental to their prior rules in Hunter and Union Bank finding that
the discovery responses were factually devoid. Schieding, supra, 69 Cal.App.4" at pp. 80, 81.
The Court in Schieding distinguished Hunter on the same rationale stating in pertinent
part, “(a)ecordingly, we distinguish the Hunter case because it involved deposition testimony

where the plaintiff was specifically asked about the defendant ...” Schieding, supra, 69

Cal.App.4" at pp. 80. The Court further stated, “(whe agree with Hunter that the circumstantial

evidence which would be required by Hagan (referring to the use of. cireumstantial evidence to

shift the burden) can consist of “factually devoid” discovery responses from which. an absence of

evidence can be inferred.”

As alleged and proved in its Separate Statement of Undisputed Material Facts and
Memorandum of Points and Authorities in support of its motion for summary judgment, Albay
conducted sufficient discovery and it is clear after a thorough review of that discovery, and

plaintiff's responses thereto, that plaintiff's responses across the board were devoid of any facts

that would prove Albay caused him any injury. In fact, the testimony provided by plaintiff to
Albay’s deposition questions affirmatively and directly proves that he was not expo ed to an

asbestos-containing product as a result of Albay, nor did he ever respire any airbome asbestos

caused to become so by Albay. (Albay’s Separate Statement of Undisputed Material Facts in

support of Motion for Summary Judgemmt, Fact Nos. 3-8.) And, plaintiff's responses to Albay’s
specifically tailored written discovery requesis were factually devoid and provided responses
found by the Court in Andrews, infra, to be insufficient to prove that he was caused to be exposed.
to asbestos or injured in any way by Albay.

In Andrews v. Foster Wheeler (2006) 138 Cal. App. 4th 96, the Court discussed in detail
the standard for shifting the initial burden of production in an asbestos related summary, ‘judgment
motion. The court in Andrews considered both Plaintiff's deposition testimony and responses to

written discovery. Jd., at 103-104, The moving party, like Albay in this action, served written

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discovery asking for each fact that supported the allegations, each alleged exposure, the manner
of the exposure, all witnesses or documents known to the Plaintiff, the facts known to each

witness, etc. ‘These requests are nearly identical to the requests served by Albay in this case and

the responses cited in Andrews are nearly identical to plaintiffs responses in this case!

In Andrews, the Plaintiff responded by listing a number of sites, listing co-workers
without specifying what evidence, if any, they had as to the moving patty, and restating the
general allegations. Id., at 106-108. The Court found that under these circumstances, the
responses were factually-devoid, and the burden was properly shifted to the Plaintiffs. For the
sake of efficiency, space and time, Albay will not recite the entire decision from the Court in.
Andrews, however a full reading of the decision is encouraged and is extremely enlightening
when it comes to considering the value of plaintiff's discovery responses.

As the Andrews Court noted,

This answer [repeating the general allegations, listing some sites,
and naming some co-workers] was insufficient to support a claim.
It contains little more than general allegations against Foster
Wheeler and does not state specific facts showing that [plaintiff]
was actually exposed to asbestos-containing material from Foster
Wheeler’s products.

Foster Wheeler propounded... special interrogatories in its effort to
obtain all the facts known to plaintiff regarding Andrews’ exposure
to Foster Wheeler products. Plaintiffs provided little, if any,
substantive information in it s reply. Andrews, supra, at 105.

Similarly in this case, in response to specific requests seeking the identity of all facts,
witnesses and documents to support their claims as to Albay, Plaintiff provided arbitrary and
baseless responses intended to create a discovery quagmire for Albay, but worthless of any
evidentiary value otherwise.

Like in Andrews, supra, the only inference that can be drawn by this Court from Plaintiff's
failure to provide fact-based responses, in light of his statutory duty to respond fully to this
specific discovery, is that Plaintiffhas no such evidence. Scheiding, supra at 79, As the
Scheiding court stated “[t]he inference [is that] since the plaintiff had a statutory duty to respond
fully, his ‘factually devoid’ answers showed he had no facts.” Scheiding, supra at79. Thus,

Plaintiff's factually-devoid responses to the interrogatories and other discovery seeking

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information particular as to Graybar, shifted the burden on the pending motion for summary
judgment. Id; Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal. App. 4" 962, 974.

Therefore, Plaintiff's factually devoid discovery responses in this case are the
circumstantial evidence that constitutes affirmative evidence sufficient to prove that plaintiff does
not have and cannot reasonably expect to obtain evidence that constitutes a prima facie case of

negligence against Albay, Scheiding, supra at 83.

B. Plaintiff’s Deposition Testimony Is Affirmative Direct Evidence That Albay
Did Not Cause Plaintiff To Be Injured In Any Way

As alleged and cited in its Separate Statement of Undisputed Material Facts, Albay

elicited sworn deposition testimony from Plaintiff that affirmative shows that he was not caused
to be exposed to asbestos or injured by any act or omission of Albay. (SS Nos. 3-12) There can
be no question that by thoroughly examining the witness at his deposition and eliciting dispositive
factual testimony from plaintiff to his own claims, Albay has acted affirmatively and created
direct evidence that proves he was not exposed to asbestos by Albay. In turn, this direct evidence
negates the element of causation essential to plaintiff's complaint against Albay. And, this direct
evidence affirmatively shifts the burden to plaintiff to prove otherwise and that a triable issue of
material fact exists. Scheiding, supra at 83; Hunter, supra, (1995) 37 Cal.App.4th 1282; Hagen
v, Hickenbottom (1995) 41 Cal. App. Ath 168.

Cc. The Self-Serving Declaration Of Plaintiff Contradicts His Prior Deposition
Testimony And Is Inadmissible,

Plaintiff cannot offer a declaration in contradiction to an admission against interest. Tn his
deposition, upon questioning attorney, Plaintiff's testimony was clear as cited in Albay’s Separate
Statement and attached as Exhibit “B,” to its original moving papers. Now, Plaintiff declares,
months afterward when faced with a motion for summary judgment, self serving and
contradictory statements in a supporting declaration attached to his Opposition to Albay’s
Summary Judgment in a last ditch effort to create a material issue of fact.

The Supreme Court in D'Amico v. Board of Medical Examiners (1974) 11 Cal. 3d 1, 22,

recognized that:

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[A]dmissions against interest have a very high credibility value.
This is especially true when, as in this case, the admission is
obtained not in the normal course of human activities and affairs
but in the context of an established pretrial procedure whose
purpose is to elicit facts. Accordingly, when such an admission,
becomes relevant to the determination, on motion for summary
judgment, of whether or not there exist triable issues of fact (as
‘opposed to legal issues) between the parties, it is entitled to and
should receive a kind of deference not normally accorded
evidentiary allegations in affidavits.

Even before D’Amico, courts had consistently ruled that a party may not contradict his
deposition testimony through subsequent self-serving declarations, and Courts continue to hold so
today. See King v. Andersen (1966) 242 Cal. App. 2d 606; see, also, Roth v. Rhodes (1994) 25
Cal. App. 4" $30, 545.

The general rule is that:

In determining whether any triable issue of material fact exists, the
trial court may, in its discretion, give greater weight to the
admissions made in deposition and disregard contradictory and
self-serving affidavits of the party.

Benavidez v. San Jose Police Dept. (1999) 71 Cal. App. 4" 853, 861, citing Preach v.
Monter Rainbow (1993) 12 Cal. App. 4" 1441, 1451.

In the instant case, Plaintiff testified with clarity and understanding at the tire of his
deposition in response to direct and tailored questions from Albay. (Pertinent portions of
Plaintiff's Deposition testimony is attached to Albay’s original moving papers and Plaintiff's
Opposition.) Now, plaintiff offers a declaration that is utterly self-serving and contradictory to
his previous discovery responses. Furthermore, plaintiff alleges that Albay did not conduct a
thorough examination. This contention is hogwash. It is improper for plaintiff to attempt to
detine what should have been the scope of Albay’s examination of him at deposition. tis
beyond self-serving to do so. In fact, Albay conducted a more than sufficient and thorough exam
of Plaintiff, certainly given San Francisco General Order 129 deposition limitations and
requirements, as discussed above.

D’Amico therefore applies and this Court may properly give greater weight to the

admissions made in deposition and disregard Plaintiff’s self-serving affidavit.

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SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATIONCo OH NA

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D. The DeclaRation of Charles Ay Lacks Foundation, Is Speculative And Is
Tnadmissible In Its Entirety

As a lynchpin to his Opposition, Plaintiff offers a Declaration of “asbestos consultant”

Charles Ay, summarily concluding that dust and debris from gasket and pipe insulation materials
that Plaintiff identifies in his self-serving declaration, contained asbestos. (See Declaration of

Charles Ay at paragraphs 11 through 13, attached as Exhibit “C,” to plaintiffs Opposition to

Summary Judgment.)

1. Ay’s Expert Testimony is Based Upon The Inadmissible Declaration of
Plaintiff And Is Thus Lacking In Foundation and Inadmissible In Its Entirety.

In paragraphs 31 ta 35 of his Declaration, Mr. Ay cites the basis for his opinions that the
Plaintiff was exposed to asbestos as a result of Albay’s activities. Paragraph 31 starts out by
stating, “(1) have reviewed the Declaration of Plaintiff...” In subsequent paragraphs, Mr. Ay
goes on. to form opinions based upon facts set forth in Plaintiff’ s self-serving declaration offered
in support of his opposition to Albay’s summary judgment. No where in Mr. Ay’s declaration
does he indicate that he reviewed any other of Plaintiff's more reliable discovery responses
whatsoever in order to form his “expert” opinions related to this case.

Had Mr. Ay reviewed plaintiff's deposition testimony or his responses to written
discovery requests, maybe he would have established the requisite foundation to opine further.
But be did not, so that point is moot. Maybe, had he reviewed all the other pertinent, relevant and
admissible evidence (plenty of it to review) Mr. Ay would have changed his opinions in
paragraphs 31 to 35 of his declaration to opine that plaintiff was NOT exposed to asbestos, We
just don’t know because Mr, Ay only reviewed plaintiff's last minute, self-serving declaration
produced only to frustrate the summary judgment process.

Mr. Ay did not review anything other than the self-serving declaration of Plaintiff which.
is completely unreliable and inadmissible, as discussed above. Therefore, Mr. Ay’s opinions in
paragraph 31 ~ 35 of his declaration where he comments on the chemical makeup of gaskets and
pipe insulation are fruit from. a poisonous tree and are inadmissible as such. To the extent

Plaintiff's Declaration is inadmissible, any “opinion” Mr. Ay asserts based on Plaintiff's

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testimony should be disregarded by the Court, as based entirely on speculation. See Smith v.
ACand8, Ine. (1994) 31 Cal. App. 4° 77, (finding that an expert in an asbestos case may not
properly rely on speculative evidence); In re Cheryl H (1984) 153 Cal. App. 3d 1098 (finding that
an expert may not base an opinion on inadmissible evidence from an incompetent witness.)
Furthermore, it is well-settled that in order to support an opposition to summary judgment,
a declaration must (a) show the declarant’s personal knowledge and competency to testify; (b)
state evidentiary facts, not conclusions; (c) and not contain inadmissible hearsay or opinions.
Hayman v. Block (1986) 176 Cal. App. 3d 629, 638-639. Based upon his limited review of
available facts and evidence in this case and his review ONLY of plaintiffs inadmissible

declaration, Mr. Ay fails on ali three requirements set forth in Hayman,

2. Ay’s Expert Testimony is Based Upon Pure Speculation and Inadmissible In Its
Entirety.

Under any circumstance, an expert declaration must contain enough credible evidentiary
support to substantiate the opinion given. LaPlante v. Wellcraft Marine Corp. (2001) 94 Cal.
App. 4" 282. “Self-serving conclusions” by expert witnesses “devoid of any basis, explanation or
reasoning” are not sufficient to create a triable issue of fact to defeat summary judgment. Eagle
Refinery Co, Inc. v. Associated International Insurance (2001) 85 Cal. App. 4” 1200, 1315.

Even if Plaintiff's declaration is ruled to be admissible, in reliance upon the alleged facts
therein, Mr. Ay concludes without any evidence that the subject products that plaintiff alleges to
have been exposed to contained asbestos. This is pure speculation, conclusory and is not
“evidence.” Hayman, supra, 176 Cal. App. 3d 629, 638-639 Plaintiff and, hence, Mr. Ay have
absolutely no idea what manufacturer or brand of said materials were present at Shell Oil and/or
Exxon Refinery. He is outright guessing. Therefore, it is impossible to opine that the subject
materials contained asbestos.

As stated above, Mr. Ay is relying on Plaintiff's own declaration in order to formulate his
opinions. Nowhere in plaintiff's declaration does he profess to know the brand name or the
manufacturer of the products at issue. (See Declaration of Plaintiff attached to Plaintiff's
Opposition as Exhibit “B.”)

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REPLY TO PLAINTIFFS’ OPPOSITION TO ALBAY CONSTRUCTION COMPANY’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATIONMr. Ay declares that he has “worked with and have knowledge of both asbestos-
containing and non-asbestos gaskets and pipe insulation constructions materials available and
used in the 1970’s, the relevant time frame. (Emphasis added) (See Declaration of Charles Ay at
paragraphs 30 and 33 attached as Exhibit “D,” to plaintiff's Opposition to Summary Judgment.)

These paragraphs alone establishes that Mr. Ay cannot say with any certainty whatsoever
that the unidentified gasket and pipe insulation materials that plaintiff alleges to have been.
exposed to by Albay in his own declaration contained asbestos. Any opinion that they did contain
asbestos made by Mr. Ay is fraught with gross speculation, lacks any nexus between the product
and asbestos content and is conclusory.

Based upon Mr. Ay’s own “expert” testimony, it is clear to see that it is impossible for
him to discern the chemical makeup of the subject materials since he did not know if it was the
non asbestos containing type or the asbestos containing type, both of which he admits existed in
the relevant time period. He doesn’t even know the brand names or who they were made by so
Mr. Ay’s baseless conclusions that plaintiff was exposed to asbestos as a result of the subject
materials is utter speculation and purely conclusory.

Tt is insufficient to create an issue of material fact worthy of jury consideration. Tt would

be akin to asking a jury to flip a coin in order to determine if the gasket and pipe insulation

materials that Plaintiff identified in his own declaration contained asbestos or not.

For the foregoing reasons, Albay respectfully objects to the Declaration of Charles Ay as
lacking foundation, based upon speculation and requests that this Court rule it as inadmissible and
not consider it for the purposes of this motion.

3, Deposition Testimony of GW Lamphiaer is Inadmissible Against Albay.

The deposition testimony of GW Lamphiaer offered by plaintiff in support of this
opposition to Albay’s summary judgment motion is inadmissible hearsay. Furthermore, it was
not taken in this matter or any matter in which Albay was a party at interest. Therefore, Albay
had no opportunity to cross-examine the witness regarding his allegations as they relate to Albay.

Wt. CONCLUSION

For the foregoing reasons, it is clear that: (1) Albay has properly shifted the burden to

plaintiff to show that a triable issue of material fact exists; (2) Plaintiff's self-serving declaration
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is inadmissible and does not create an issue of fact regardless; (3) Charles Ay’s declaration is
lacking in foundation, conclusory and speculative; (4) GW Lamphiaer’s depositon testimony is
inadmissible against Albay; (5) Plaintiff has not established that any of the materials he allege to
have been exposed to as a result of Albay contained asbestos and he respired it; and (6) Albay has
proved that they did not cause Plaintiff any injury or damage ever.

In light of these facts, plaintiff cannot prove the element of causation essential to his

complaint against Albay and summary judgment must be granted as a matter of law

Dated: October 5, 2011 ARCHER

Jasun C. Molinelli
Attorneys for Defendant
ALBAY CONSTRUCTION COMPANY

ALB184/1234065-1

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REPLY TO PLAINTIFFS” OPPOSITION TO ALBAY CONSTRUCTION COMPANY'S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATIONPROOF OF SERVICE

| Name of Action; Charles Husband y. Asbestos Defendants

Court and Action No: San Francisco Superior Court Action No. CGC-09-275098

1, the undersigned, declare that I am over the age of eighteen years and not a party to this
action or proceeding. My business address is 2033 North Main Street, Suite 800, Walnut Creek,
California 94596-3759. On October 7, 201 1, I caused the following document(s) to be served:

REPLY TO PLAINTIFFS’ OPPOSITION TO ALBAY CONSTRUCTION COMPANY'S
MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

oO by placing a trus copy of the document(s) listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices. | am readily familiar
with this business’ practice for collection and processing of correspondence for mailing
with the United States Postal Service. On the same day that a sealed envelope is placed
for collection and mailing, it is deposited in the ordinary course of business with the
United States Postal Service with postage fully prepaid.

oO by having a true copy of the document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m, The transmission
was reported as complete without error by a report issued by the transmitting facsimile
machine. .

oO by having personally delivered a true copy of the document(s) listed above, enclosed ina
sealed envelope, to the person(s) and at the address(es) set forth below.

oO by having personal delivery by of a true copy of the document(s) listed above, enclosed
ina sealed envelope, to the person(s) and at the address(es) set forth below.

i I electronically served the above referenced document(s) through LEXIS NEXIS. E-
service in this action was completed on all parties listed on the service list with LEXIS
NEXIS. This service complies with the court’s order in this case.

1 declare under penalty of perjury that the foregoing is true and correct, Executed on
October 7, 2011, at Walnut Creek, California,

Rakia Grant-Smith

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REPLY TO PLAINTIFES’ OPPOSITION TO ALBAY CONSTRUCTION COMPANY'S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION