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BRAYTON®PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD
PO BOX 6169
NOVATO, CALIFORNIA 94948-6169
(415) 898-1555
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ALAN R. BRAYTON, ESQ., 5.B. #73685
DAVID R. DONADIO, ESQ., S.B. #154436
UMU K. TAFISI, ESQ., 8.B. #269862
BRAYTON*®PURCELL LLP
Attorneys at Law
222 Rush Landing Road
P.O. Box 6169
Novato, California 94948-6169
(415) 898-1555
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
SEP 29 2011
Clerk of the Court
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com BY: WILLIAM TRUPEK
Deputy Cle
Attorneys for Plaintiff
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CHARLES HUSBAND, ASBESTOS
No. CGC-09-275098
Plaintiff,
PLAINTIFF'S RESPONSE TO
VS. } DEFENDANT ALBAY CONSTRUCTION
) COMPANY’S SEPARATE STATEMENT
ASBESTOS DEFENDANTS (B*P) ) OF UNDISPUTED FACTS
Date: October 13, 2011
Time: 9:30 a.m.
Dept:_220, Hon. Harold Kahn
Trial Date: November 14, 2011
Action Filed: March 2, 2009
Plaintiff hereby submits the following responses to defendant ALBAY
CONSTRUCTION COMPANY ’s Separate Statement of Undisputed Facts in Support of Motion
for Summary Judgment or, in the Alternative, Summary Adjudication, with reference to
plaintiff's supporting evidence disputing such statements.
UNDISPUTED MATERIAL FACTS AND
ALLEGED SUPPORTING EVIDENCE
PLAINTIFF'S RESPONSE/EVIDENCE
1. Plaintiffs sued various defendants
alleging that he was occupationally exposed
to asbestos while working primarily as a
carpenter and heavy machi operator at
multiple locations for various employers
from approximately 1972 to 2004.
x 1088: “ALBAY:
NUnjroserSpheee aLBav.egt dn
ELAINTIFS RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED
1. Disputed. Defendant fails to point to
specific page/line reference on which it
relies for this statement. Plaintiffs
Answers to Interrogatories, Set One, reflect
plaintiff's allegations regarding asbestos
exposure over several decades, starting in as
early as the 1960s.
UKTwoe A HH FY NY
voN BW N RP NN MY RY SF Pe Be Se Se Se es BR Se
ec A A RO YD KF Se eI RHA BR WH | S
Supporting Evidence
Plaintiff's Answers to Interrogatories, Set
One, attached to the Index of Exhibits as
Exhibit "A."
2. Plaintiff has sued Albay, alleging they
‘were a contractor working at various
refineries during the time he also worked
ere.
Supporting Evidence
Plaintiff's Answers to Interrogatories, Set
One, attached to the Index of Exhibits as
Exhibit "4."
3. Plaintiff testified during his deposition
that he was directly employed by Albay
Construction Company on multiple
occasions during his career.
Supporting Evidence
Deposition of Plaintiff at pp. 256 - 264,
autached to the Index of Exhibits as Exhibit
4. Plaintiff's exclusive remedy against
Albay for any injuries he sustained while
employed by Albay is provided for under
The Workers Compensation Act.
Supporting Evidence
Labor Code § 3600 et seq. See also
Johns-Manville Products Corp. y. Superior
Court (1980) 27 Cal.3d 465, 468.
5. Plaintiff testified that he recalls working
in the vicinity of Albay employees working
on pipe and pipe related materials at Shell
Oil Refinery in 1974 while he was
employed by Dillingham Construction to
build scaffolding.
Supporting Evidence
Deposition of Plaintiff at pp. 265 -270,
gihached to the Index of enibits as Exhibit
KAbgured 10581 stoldvar ALBAY. vod
Plaintiff's Answers to Standard
iterrogatories, Set One, attached as Exhibit
F, to the Tafisi Decl.)
2. Undisputed. However Defendant fails to
point to specific page/line reference on
which it relies for this statement.
3. Undisputed.
4, Undisputed.
5. Disputed. Incomplete recitation of the
facts. Misleading.
Plaintiff saw ALBAY (ALBAY
CONSTRUCTION COMPANY)
employees at Shell Oil every day for about
six months in 1974, when he worked for
Dillingham and was building scaffolding.
He saw ALBAY employees working on
overhead piping systems and pumps. He
worked shoulder to shoulder fo ALBAY’s
employees for 30 percent of the time, since
he put up scaffolding in the pipeway anc
ALBAY’s employees used some of the
same scaffolds that he was working on.
2 KT
PLAINTIFFS RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTEDco Oo I DH RF BW N
YN YPN YN NN DY He Be Se Be Be es Be Se eS
oN DA MW fk YW NY - OC OD OB HD DH NM FB WY NY - OS
6. Plaintiff testified that he is unaware if
any of the pipe materials Albay was using
contained esbestos and nobody told him the
materials Albay employees were using
contained asbestos.
Supporting Evidence
Deposition of Plaintiff at p. 271:1-17,
attached to the Index of Exhibits as Exhibit
"BM
KAlsjured\10583: “ALBAY.
3
(Newly Served Deposition of Charles
Husband, Vol. II, April 19, 2011 (“Husband
Depo.”), Pg. 265:18-267:2; Pg. 267:3-11;
Pg. 267:17-268:13, attached as Exhibit A,
to the Tafisi Decl.)
(Husband Decl. { 7, attached as Exhibit B,
to the Tafisi Decl.)
Plaintiff saw the ALBAY employees
working with insulating material on pipes
and gasket material on valves. He saw
them cut pipe down and knock it on the
scaffolding, and he saw white, fibrous
insulation material go all over the place.
(Husband Depo., Pg. 268:14-22; Pg.
68:14-269:1, attached as Exhibit A, to the
Tafisi Decl.)
(Husband Decl. { 8, attached as Exhibit B,
to the Tafisi Decl.)
6. Plaintiff saw the ALBAY employees
working with insulating material on pipes
and gasket material on valves. He saw
them cut pipe down and knock it on the
scaffolding, and he saw white, fibrous
insulation material go all over the place.
(Husband Depo., Pg. 268:14-22; Pg.
268:14-269:1, attached as Exhibit A, to the
Tafisi Decl.)
(Husband Decl. { 8, attached as Exhibit B,
to the Tafisi Decl.)
Plaintiff testified that other workers at the
jobsite referred to the insulation on the
pipes as asbestos insulation.
(Husband Depo., Pg. 270:4-271:10,
attached as Exhibit A, to the Tafisi Decl.)
(Husband Decl. ¥ 11, attached as Exhibit B,
to the Tafisi Decl.)
He testified that this was in reference to the
insulation that his Dillingham co-workers
were working with. However, he was not
asked if this insulation was the same as the
insulation that the ALBAY employees were
disturbing. Had he been asked, he would
have testified that the insulation that other
workers called asbestos insulation was the
same type of white, fibrous pipe insulation
that he saw ALBAY employees disturbing.
(Husband Depo., Pg. 270:4-271:18,
attached as Exhibit A, to the Tafisi Decl.)
(Husband Decl. 7 11, attached as Exhibit B,
to the Tafisi Decl.)
UKT
ELAINTIF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY’S SEPARATE STATEMENT OF UNDISPUTEDDP CN DA WH BR WN
2 BSkek FSF BEGGS = 5
22
Furthermore, plaintiff was not asked to
describe what was flowing through the
pipes. Had he been asked, he would have
testified that they were steam and oil lines,
and they were highly pressurized pipes.
(Husband Decl. { 10, attached as Exhibit B,
to the Tafisi Decl.}
Defendant ALBAY admits in their General
Order No. 129 Interrogatory responses that
employees of ALBAY would “push back
asbestos insulation in order to do tie-ins.”
{ALBAY’s Response to General Order No.
129 Interrogatories, In re:_Complex
Asbestos Litigation, San Francisco Superior
Court No. 828684, No. 33, 42, attached as
Exhibit E, to the Tafisi Decl.)
The white, fibrous pire covering insulation
material described by Mr. HUSBAND mere
likely than not was asbestos-containing
material. The pipe covering insulation
described by Mr. HUSBAND could only
have been a calcium silicate or "85% mag”.
These forms of thermal insulation always
had asbestos as a component throughout the
1950s and 1960s and into the early 1970s
when the first non-asbestos containing pipe
covering and block insulations were first
introduced.
(Declaration of Charles Ay “Ay Decl.,”
13 fitached as Exhibit D, to the Tafisi
Moreover, plaintiff was not asked to
describe the gasket material that he saw
ALBAY employees working with on valves
at Shell Oil in 1974. Had he been asked, he
would have testified that he saw the
ALBAY employees removing and installing
grayish colored, fibrous gaskets on valves
flanges associated with valves and
pipes. Some of the gaskets had a metal
ring.
(Husband Decl. { 9, attached as Exhibit B,
to the Tafisi Decl.)
The gaskets that Mr. HUSBAND describes
as grayish and fibrous, and some having a
metal ring, at Shell Oil in 1974, more likely
than not were asbestos-containing
materials. This is because the vast majority
of these types of gaskets used on insulated
steam and oil lines, which are high heat and
KNinjored\ 10581 Sigidies-ALBAY pd 4 UKT
PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY S SEPARATE STATEMENT OF UNDISPUTEDOo eI DH RB Hw Me
RR ww eM NM KN NN De Be me ee ee
es UR A BR Oo NY Se SF owe I AHA RP BH NH YH SO
7. Plaintiff also saw Albay employees
performing work ona Pumping system at
hell but he does not specifically know
what they were doing or if they were
working with asbestos containing materials
to which he was exposed.
Supporting Evidence
Deposition of Plaintiff at pp. 272 - 273,
auiached to the Index of hh ibits as Exhibit
KNlopured 1058) spires.
high pressure piping systems, continui
through the late 1980s, were ‘asbestos ©
containing. Additionally, Gerald
Lamphiear, a project manager and Person
Most Knowledgeable for Shell Oil Co.,
testified that Shell Oil was using asbestos-
containing gaskets when he started in 1980;
that at the time of the deposition (1992)
Shell Oil had not yet found a suitable
replacement for asbestos gaskets; and that
Shell Oil purchased asbestos-containing
askets from Flexitallic and Durabla.
laration of Charles Ay “Ay Decl.,”
34 jitached as Exhibit D, to the Tafisi
{Deposition of Gerald Tamphiear, in
Mie el Gray v. Abex, SFSC 897887; Glen
joone v. Abex, SFSC 910118; Harold
Dennis v. Abex, SFSC 902130, SFSC
925508, and Robert and Marvel Gertz v
Abex, SFSC 922716, p. 134:9-16; pp.
135:25-136:1, 10-11; p, 136:12-15, attached
as Exhibit C, to the Tafisi Decl.)
7, Disputed. Incomplete recitation of the
facts, and the pages to which defendant
points as supporting evidence do not
indicate that plaintiff was asked if ALBAY
worked with asbestos containing materials
in association with the pumping system.
Nonetheless, irrelevant, as plaintiff testified
that ALBAY employees disturbed pipe
insulation and gaskets in his presence.
Plaintiff testified that he s saw ALBAY
employees working on the pumping system,
and he testified that, “I can't really ‘ell you
-exactly what they did...they were either
taking them off and putting new ones on or
repairing the leaks on the ones they were
tearing — replacing.”
Husband Depo., Pg. 270:4-271:18,
tached as Exhibit A, to the Tafisi Decl.)
Plaintiff refers to and incorporates herein
Response No. 7, above.
Plaintiff did not wear breathin protection
when he worked around ALBAY’s
employees when they performed this work.
(Husband Decl. 4] 12, attached as Exhibit B,
to the Tafisi Decl.)
lofurer 1058) Sites: ALRAY wn 5 UKT
ELAINTIFES RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTEDCRP SY HR HR FF BW YN
The removal and disturbance of the thermal
pipe insulation and gaskets by ALBAY
employees in Mr. HUSBAND ’s presence,
as described by Mr. HUSBAND, released
respirable asbestos fibers that
Mr. HUSBAND inhaled. This is especially
so given that he did not wear breathing
rotection.
laration of Charles Ay “Ay Decl.,”
35, attached as Exhibit D, to the Tafisi
ecl,)
8. Plaintiff testified that he recalled Albay 8. Disputed. Incomplete recitation of the
employees performing some pipe welding facts. Misleading.
work at Exxon Refinery in the 1970's while
he was there for another contractor to build Plaintiff testified that he saw ALBAY
scaffolding but does not know if the Albay employees at Exxon sofinery in 1972, when
employees were working with asbestos he worked there for Oscar Erickson, on a
containing products or materials. shutdown, for over three months. He
worked shoulder to shoulder to the ALBAY
Supporting Evidence employees about 20 percent of the time he
De of Plaintiff at pp. 276 - 277, work wlan welt see rome pipe
osition of Plaintiff at pp. ~ 277, work including welding on pipe, pulling
i of. Eehibits as Exhibit steam valves, and changing lines. Plaintiff
attached to the Index d chi 3 1
"BL" saw them removing insulation materials
14
15
16
7
18
19
20
21
22
23
24
25
26
27
28
from pipes, and the insulation looked white
and fibrous, and it was flaky and dusty.
Plaintiff worked near them when he was
performing scaffolding work, building and
tearing down scaffolds. When ALBAY
employees tore down insulated pipe, the
insulation chipped off and fell onto the
scaffolding, |
(Husband po., Pg. 273:21-274:2; Pg.
74:16-275:2; Pg. 275:22-276:2, pg.
275:3-21; Pg. 277:2-19; Pg. 274:24-275:2;
Pg. 277:11-19, attached as Exhibit A, to the
Declaration of Umu Tafisi “Tafisi Decl.”)
claration of Charles Husband “Husband
1.” { 2, attached as Exhibit B, to the
Tafisi Decl.)
Plaintiff also saw ALBAY employees
stirring up a lot of dust when they cleaned
up their work area. During his deposition,
he was not asked where the dust was from.
Had he been asked, he would have testified
that he saw the ALBAY employees
sweeping up dust from the white, fibrous,
flaky insulation that they were removing
during their work on the pipes.
(Husband Depo., Pg. Pg. 280:3-14, attached
as Exhibit A, to the Tafisi Decl.)
(Husband Decl. § 3, attached as Exhibit B,
to the Tafisi Decl.)
No i UKT
Ears RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED2 oO ND HW B&B WwW NL me
oe tte
BRRRRORE SSR UAR EDGES
9, Albay served Plaintiff with Special
Interrogatories, Request for uction of
Documents, Request for Admissions, and
Form Interrogatories, requesting that
Plaintiff identify all facts to support his
KUsjuedtoss
HAtsuatuosersoioe apa’ __ClTFnm
PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED
FACTS
Peo ie at the jobsite referred to the white
insulating material on the pipes as asbestos
ins ulation.
usband Depo., Pg. 278:3-7, attached as
hibit A, to the Tafisi Decl.)
(Husband Deel. { 4, attached as Exhibit B,
to the Tafisi Decl.)
During his deposition, Plaintiff was not
asked about what flowed through the pipes
that ALBAY employees worked on. Had
he been asked, he would have testified that
the the pipes were for steam and oil, and they
ighly pressurized.
tebe Decl. 5, attached as Exhibit B,
to the Tafisi Decl.)
Plaintiff did not wear breathing protection
when he worked around ALBA
employees when they performed this work.
(Husband Decl. € 6, ‘tached as Exhibit B,
to the Tafisi Decl.)
The white, fibrous pee coverin insulation
material described AND more
likely than not was Cabesios-containing
material. The pipe covering insulation
described by Mr. HUSBAND could only
have been a calcium silicate or "85% mag”.
These forms of thermal insulation always
had asbestos as a component throughout the
1950s and 1960s and into the early 1970s
when the first non-asbestos containing pipe
covering and block insulations were first
introduced.
(Declaration of Charles Ay “Ay Decl,”
bead attached as Exhibit D, to the Tafisi
The removal and disturbance of the thermal
pipe ins insulation by ALBAY employees in
ISBAND’s presence, as described by
Mr. HUSBAND, released respirable
asbestos fibers that Mr. HUSBAND
inhaled. This is especially so given that he
did not wear breathing protection.
(Declaration of Charles Ay “Ay Decl.,”
35, attached as Exhibit D, to the Tafisi
1.)
9, Undisputed.
UKTwo om NON HB WN He
woN NM MM N NON vt to _
&BRRkRESBREREBSSE A ARDREGH = S
claims of alleged asbestos exposure against
Albay, requesting a recitation of all facts
known to each witness identified by
Plaintiff, and requesting a statement of ail
facts known to Plaintiff (whether from
witnesses or documents) supporting his
claims against Albay specifically seeking all
information (documents, witnesses, facts)
that products supplied by Albay contained
asbestos, plus all information as to the
manner in which Plaintiff claim his
asbestos exposure from a product allegedly
supplied by Albay.
Supporting Evidence
Albay’'s Special interrogatories, Request for
Production of Documents, Request for
Admissions, and Form Interrogatories,
pra sanded on Plaintiff, attached to the
Inde of Exhibits collectively as Exhibit
10. In his responses to Albay's request for
all facts and information supporting his
contentions, Plaintiff provided responses
which included a list of jobsites where he
alleges Alba’ formed work in his
presence BUT provides only contradictory
allegation with no factual detail of any work
and failed to provide any facts that would
show he was exposed to respirable asbestos
as a result of any conduct by Albay or
would support his claims against Albay
based upon any theory of liability asserted
in plaintiffs Complaint. Plaintiff also
provided a list of potential witnesses with
information pertaming to this subject but all
witnesses identified in plaintiff's written or
oral discovery requests were deposed and
have no information or are deceased or
unavailable following a reasonable inquiry
and diligent search by counsel.
Supporting Evidence
Plaintiff's responses to Albay’s Special
interrogatories, Requests for Production of
Documents and Requests for Admissions to
Plaintiff, attached to the Index of Exhibits
collectively as Exhibit "D." See
Declaration of Jasun Molinelli in support
of Albay's Motion for Summary Judgment.
KAsjuedinaser AY.
10. Disputed. ument of counsel.
Incomplete recitation of facts. Also,
Defendant fails to reference any page/line
that supports these statements.
Relevant excerpts from Plaintiff's response
to Albay’s request for all facts and
information was provided as follows:
net Exxon Refinery in 1972]
Plaintiff testified that he saw
ALBAY employees removing pre-
existing white, fibrous insulation on
pipes, which created lots of dust in
the area, and the ALBAY employees
cleaned and swept up this dust in
laintiff's presence...In 1975 ata
y Area refinery, for about 6
months, plaintiff saw ALBAY
employees working on overhead
piping, pumps, and boilers, and they
were removing and installing white
fibrous insulation materials, ae
removing and i ets on
valves. The Temoval and
installation of insulation created a
lot of visible dust...
Defendant admits in their General
Order No. 129 Interrogatory
responses that employees of
ALBAY would “push back asbestos
KMnjueedOSUISpieALBAY apd
PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED
FACTSoem NDA HW Pb WwW NY
NN YN YN NKR Dy we a i
on NH A FF YW NH &Y§ SD OD OD DH HH HF WN KF OS
11. Albay did not cause or contribute, in
any way either directly or indirectly,
laintiff to be exposed to asbestos during
is working career.
Supporting Evidence
Deposition of Plaintiff at pp. 256 - 277,
attached to the Index of Exhibits as Exhibit
"B." Plaintiff's responses to Albay's Special
Interrogatories, Requests for luction of
Documents and Requests for Admissions to
Plaintiff, attached to the Index of Exhibits
collectively as Exhibit “D."
“i
K.Nlsjured\10581Siplf\as-ALBAY.
KAtsorestoseiSplOuenaLpavwpd ln
PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY’S SEPARATE STATEMENT OF UNDISPUTED
insulation in order to do tie-ins.”...In
re: Complex Asbestos Litigation,
San Francisco Superior Court
No. 828684, No. 33, 2. Plaintiffs’
experts in similar cases have
provided depositions, declarations
and trial testimony, that more likely
than not, the ets, high
temperature thermal pipe
insulation...manipulated and
disturbed by ALBAY employees
contained asbestos, and that when
broken, torn, cut, frayed, or
disturbed the asbestos is released
into the air. Plaintiff inhaled the
asbestos-laden air...”
(Plaintiff's Response to ALBAY’s Special
Interrogatory No. 1, Pg. 1:25-5:23, attached
as Exhibit G, to Tafisi Decl.)
11. Disputed. Argument of counsel.
Defendant fails to reference any page/line
of Plaintiff's written discovery responses to
sul pport its position. Incomplete recitation
of facts.
Plaintiff testified that he saw ALBAY
employees at Exxon refinery in 1972, when
he worked there for Oscar Erickson, on a
shutdown, for over three months. He
worked shoulder to shoulder to the ALBAY
employees about 20 percent of the time he
was at Exxon. ALBAY performed pipe
work including welding on pipe, pulling
steam valves, and changing lines. Plaintiff
saw them removing insulation materials
from pipes, and the insulation looked white
and fibrous, and it was flaky and dusty.
Plaintiff worked near them when he was
performing scaffolding work, building and
tearing down scaffolds. When ALBAY
employees tore down insulated pipe, the
insulation chipped off and fell onto the
scaffolding.
(Husband epo., Pg. 273:21-274:2; Pg.
74:16-275:2; Pg. 275:22-276:2; Pg.
275:3-21; Pg. 277:2-19; Pg. 274:24-275:2;
Pg. 277:11-19, attached as Exhibit A, to the
Declaration of Umu Tafisi “Tafisi Decl.)
(Declaration of Charles Husband “Husband
Decl.” 2, attached as Exhibit B, to the
Tafisi Decl.)
UKTmW A HW FB WN
10
We
KAbsjuresitosa:
Plaintiff also saw ALBAY employees
stirring up a lot of dust when they cleaned
up their work area. During his deposition,
he was not asked where the dust was from.
Had he been asked, he would have testified
that he saw the ALBAY employees
sweeping up dust from the white, fibrous,
flaky insulation that they were removing
during their work on the pipes,
(Husband Depo., Pg. Pg. 280:3-14, attached
as Exhibit A, to the Tafisi Decl.)
(Husband Decl. j 3, attached as Exhibit B,
to the Tafisi Decl.)
People at the jobsite referred to the white
insulating material on the pipes as asbestos
insulation.
(Husband Depo., Pg. 278:3-7, attached as
Exhibit A, to the Tafisi Decl.)
(Husband Decl. € 4, attached as Exhibit B,
to the Tafisi Decl.)
During his deposition, Plaintiff was not
asked about what flowed through the pipes
that ALBAY employees worked on. Had
he been asked, he would have testified that
the pipes were for steam and oil, and they
were highly pressurized.
(Husband Decl. 5, attached as Exhibit B,
to the Tafisi Decl.)
Plaintiff did not wear breathin: tection
when he worked around ALBAY’s
employees when they performed this work.
(Husband Decl. { 6, attached as Exhibit B,
to the Tafisi Dec!.)
Plaintiff also saw ALBAY employees at
Shell Oil every day for about six months in
1974, when he worked for Dillingham and
was building scaffolding. He saw ALBAY
employees working on overhead piping
systems and pumps. He worked shoulder to
joulder to ALBAY’s employees for 30
percent of the time, since he put up
scaffolding in the pipeway and ALBAY’s
employees used some of the same scaffolds
that he was working on.
(Husband Depo., Pg. 265:18-267:2; Pe.
267:3-11; Pg. 267:17-268:13, attached as
Exhibit A, te the Tafisi Decl.)
(Husband Decl. 7, attached as Exhibit B,
to the Tafisi Decl.)
UKT
PLAINTIFF'S: RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED
FACTSOo CO Ss AD th fe ND
we NB Vv Ww ye ret te
BYeRRRBEBRE BSeAR DE GS = Ss
Plaintiff saw the ALBAY employees
working with insulating material on pipes
and gasket material on valves. He saw
them cut pipe down and knock it on the
scaffolding, and he saw white, fibrous
insulation material go all over the place.
{Husband Depo., Pg. 268:14-22; Pg.
268:14-269:1, attached as Exhibit A, to the
Tafisi Decl.)
(Husband Decl. { 8, attached as Exhibit B,
to the Tafisi Decl.)
Plaintiff was not asked to describe the
gasket material that he saw ALBAY
employees working with on vaives at Shell
Gil in 1974. Had he been asked, he would
have testified that he say the > AL BAY ish
employees removing and installing grayisl
colored, fibrous gaskets on valves and
flanges associated with valves and pipes.
Some of the gaskets had a metal ring.
(Husband Decl. € 9, attached as Exhibit B,
to the Tafisi Decl.)
Furthermore, plaintiff was not asked to
describe what was flowing through the
pipes. Had he been asked, he would have
testified that they were steam and oil lines,
and they were hi ly pressurized pipes.
(Husband Decl. { 10, attached as Exhibit B,
to the Tafisi Decl.)
Other workers at the jobsite referred to the
insulation on the pipes as asbestos
(iiosband Depo Pg. 270:4-271:10
lus . Pg. 270: 210,
attached as Exhibit A, to the Tafisi Decl.)
(Husband Decl. { 11, attached as Exhibit B,
to the Tafisi Decl.)
He testified that this was in reference to the
insulation that his Dillingham co-workers
were working with. (Husband Depo., Pg.
270:4-271:18). However, he was not asked
if this insulation was the same as the
insulation that the ALBAY employees were
disturbing. Had he been asked, he would
have testified that the insulation that other
workers called asbestos insulation was the
same type of white, fibrous pipe insulation
that he saw ALBAY employees disturbing.
(Husband Decl. { 11, attached as Exhibit B,
to the Tafisi Deci.)
UKT
ELAINTIFE'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY’S SEPARATE STATEMENT OF UNDISPUTEDCo Re SD fe ND me
oot kph ph tk hk
Se WD A DW & WwW Ne
y
Qo
‘KAbujured O55 Sighd\yas ALBAY. pd
Plaintiff did not wear breathing protection
when he worked around ALBAY’s
employees when they performed this work.
(Husband Decl. ” attached as Exhibit B,
¢ the Tafisi Dec!
Defendant ALBAY admits in their General
Order No. 129 Interrogatory responses that
employees of ALBAY would h back
asbestos insulation in order to do tie-ins.
(ALBAY’s Response to General Order No.
129 Interrogatories, In re:_ Complex
Asbestos Litigation, San Francisco Superior
Court No. 828684, No. 33, { 2, attached as
Exhibit E, to the Tafisi Dee -)
Gerald Lamphiear, a project er and
Person Most Raouledomsble for Shell Oil
Co. testified in multiple cases on Fel
21, 1992, Mr. Lamphiear testified that
Shell Oil was using asbestos-containing
skets when he started in 1980 and had
en unable to successfully phase them out.
Mr. Lamphiear testified that, at the time of
the deposition, Shell had not yet found a
suitable r acement for asbestos gaskets.
iear testified that Shell
rte asbestos-containing gaskets from
lexitallic and Durabla.
(Deposition of Gerald Lamphiear, in
Michael Gray v. Abex, SFSC 897887; Glen
Boone v. Abex, SFSC 910118; Harold
Dennis v. Abex, SFSC 902130, SFSC
925508, and Robert and Marvel Gertz v
Abex, SFSC 922716, p. 134:9-16; pp.
135:25-136-1, 10-11: 3 p. 136:12- 15, attached
as Exhibit C, to the Tafisi Decl. )
The white, fibrous pipe covering insulation
material described pi Mr. HUSBAND more
likely than not was asbestos-containing
material. The pipe covering insulation
described by Mr. HUSB. could only
have been a calcium silicate or "85% mag”.
These forms of thermal insulation always
had asbestos as a component throughout
1950s and 1960s and into the early 1970s
when the first non-asbestos containing pipe
covering and block insulations were first
introduced.
(Declaration of Charles Ay “Ay Decl.,”
33, ttached as Exhibit D, to the Tafisi
cl.
UKT
PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED
FACTS12 OO SDN UW PB WN om
NN NN WON NN Rm mee
ean A A BW YD = SO wo a DA RB WH @
12. Albay having not breached any duty to
plaintiff, nor caused or contributed to
plaintiff's exposure to asbestos, is not liable
to plaintiff under any theory of liability
asserted in plaintiff's Complaint.
Supporting Evidence
Deposition of Plaintiff at pp. 256 - 277,
atinched to a) ie enibits as Exhibit
"B." Plaintiff's responses to Albay's
Special Interrogatories, Requests for
'roduction af Documents and Requests for
Admissions to Plaintiff, attached to the
Index of Exhibits collectively as Exhibit
it
ut
KAlsiurehtosst. EBAY.
The gaskets that Mr. HUSBAND describes
as grayish and fibrous, and some having a
metal ring, at Shell Oil in 1974, more likely
than not were asbestos-containing
materials. This is because the vast majority
of these types of gaskets used on insulated
steam and oil lines, which are high heat and
high pressure piping systems, continuing
through the late 1980s, were asbestos
containing. Additionally, Gerald
Lamphiear, a project manager and Person
Most Knowledgeable for Shell Oil Co.,
testified that Sheil Oil was using asbestos-
containing ets when he started in 1980;
that at the time of the deposition (1992)
Shell Oil had not yet found a suitable
replacement for asbestos gaskets; and that
Shell Oil purchased asbestos-containing
gaskets from Flexitallic and Durabla.
(Declaration of Charles Ay “Ay Decl.,”
34, sitached as Exhibit D, to the Tafisi
eck.
The removal and disturbance of the thermal
pipe insulation and ets by ALBAY
employees in Mr. HUSBAND’s presence,
as described by Mr. HUSBAND, released
respirable asbestos fibers that
Mr. HUSBAND inhaled. This is especially
so given that he did not wear breathing
protection.
(Declaration of Charles Ay “Ay Decl.,”
135 fitached as Exhibit D, to the Tafisi
ecl,
12. Disputed. Argument of counsel.
Defendant fails to reference any page/line
of Plaintiffs written discovery responses to
Support its position. Incomplete recitation
of facts,
Plaintiff refers to and incorporates herein
Response to No. 11, above.
ELAINTIFPS RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED2 Oo VD Hh B&B WN mw
yoN VPP vote
BRRRRORE SSS URBDREOS A S
ISSUE NO. 2: SUMMARY ADJUDICATION AS TO PLAINTIFF'S CAUSE OF
ACTION FOR NEGLIGENCE SHOULD BE GRANTED BECAUSE PLAINTIFF IS
UNABLE TO ESTABLISH THE REQUISITE ELEMENT CAUSATION.
13, Causation is an essential element of all
of Plaintiff's causes of action, and Plaintiff
has failed to produce admissible evidence
that he was exposed to asbestos from any
work activity or product for which Albay is
responsible.
Supporting Evidence
Deposition of Plaintiff at PP. 256 - 277,
attached to the Index of Exhibits as Exhibit
"B." Plaintiff's responses to Albay's
Special interrogatories, Requests for
-oduction 9, uments and Requests for
Admissions to Plaintiff, attached to the
Index of Exhibits collectively as Exhibit
14, Without Proof of causation, Albay can
not, and should not be held negligent for
any acts or omissions which lack such
proof. Therefore summary adjudication as
to plaintiff's cause of action for negligence
is proper as a matter of law.
Supporting Evidence
Deposition of Plaintiff at pp. 256 - 277,
attached to the Index of Exhibits as Exhibit
"B." Plaintiff's responses to Albay's Special
Interrogatories, Requests for Production of
Documents and Requests for Admissions to
Plaintiff, attached to the Index of Exhibits
collectively as Exhibit "D."
13. Disputed. Argument of counsel.
Defendant fails to reference any page/line
of Plaintiff's written discovery responses to
su pport its position. Incomplete recitation
of facts. Misleading.
Plaintiff refers to and incorporates herein
Response to No. 11, above.
14. Disputed. Argument of counsel.
Defendant fails to reference any page/line
of Plaintiff's written discovery responses to
support its position. Incomplete recitation
of facts.
Plaintiff refers to and incorporates herein.
Response to No. 11, above.
ISSUE NO. 3: SUMMARY ADJUDICATION AS TO PLAINTIFF'S CAUSE OF
ACTION FOR STRICT LIABILITY SHOULD BE GRANTED BECAUSE PLAINTIFF IS
UNABLE TO ESTABLISH THE REQUISITE ELEMENTS OF
EXPOSURE/CAUSATION.
15. Plaintiff filed this action for strict
liability based on his alleged exposure to
asbestos-containing products during his
career primarily as a carpenter.
Supporting Evidence
Deposition of Plaintiff at pp. 256 - 277,
attached to the inte hibits as Exhibit
"B.” Plaintiff's responses to Albay's
Special Interrogatories, Requests for
KYuresrose: Y,
15. Moot. Plaintiff has dismissed his cause
of action for strict liability as against
ALBAY in this matter.
ELANTIEPS RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTEDOo Oo YN A WA B® Ww Ne
jem
eU Aa RE HK SS
19
Production of Documents and Requests for
Admissions to Plaintiff, attached to the
Index of Exhibits collectively as Exhibit
"p"
Jimenez v. Superior Court (2002) 29
Cal.4th 473, 479; Pierson vy. Sharp
Memorial Hospital, Inc. (1989) 216
Cal.App.3d 340, 345 (law of negligence,
not strict liability, governs services);
Ferrari v. Grand Canyon Dories (1995) 32
Cal.App.4th 248; Pena v. Sita World
Travel, Inc. (1978) 88 Cal.App.3d 642;
DiCola v. White Bros. Performance Prods.,
Inc. (2008) 158 Cal.App.4th 666, 674;
Monte Vista v. Superior Court (1991) 226
Cal.App.3d 1681.
16. Albay is entitled to summary 16. Moot. Plaintiff has dismissed his cause
adjudication on a claim of strict product of action for strict liability as against
liability because plaintiff's discovery ALBAY in this matter.
nses and deposition testimony reveal
he lacks any factual basis for a finding that
Albay either manufactured or supplied any
of the products at issue - an essential
element of a claim for strict product
liability.
Supporting Evidence
Deposition of Plaintiff at pp. 256 - 277,
attached to the Index of Exhibits as Exhibit
"B." Plaintiff's responses to Albay's
Special Interrogatories, Requests for
'roduction of Documents and Requests for
Admissions to Plaintiff, attached to the
Index of Exhibits collectively as Exhibit
Jimenez v. Superior Court (2002) 29
Cal.4th 473, 479; Pierson v. Sharp
Memorial Hospital, Inc. (1989) 216
Cal.App.3d 340, 345 (law of negligence,
not strict liability, governs services);
Ferrari v. Grand Canyon Dories (1995) 32
Cal.App.4th 248; Pena v. Sita Worid
Travel, Inc. (1978) 88 Cal.App.3d 642;
DiCola v. ite Bros. Performance Prods.,
Inc. (2008) 158 Cal.App.4th 666, 674;
Monte Vista v. Superior Court (1991) 226
Cal.App.3d 1681.
Mi
Wt
KeAlgjuresA10581 AY. 15 UKT
PLAINTIFP'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY’S SEPARATE STATEMENT OF UNDISPUTEDOo em WD HW PR wWwN
ee a ee ae
oN DAA PB WN | S
ISSUE NO. 4: SUMMARY ADJUDICATION AS TO PLAINTIFF'S REQUEST FOR
PUNITIVE DAMAGES SHOULD BE GRANTED BECAUSE PLAINTIFF IS UNABLE
TO PROVE ALBAY ACTED WITH OPPRESSION, FRAUD OR MALICE.
17. Any claim for punitive damages
Tequires "clear and convincing” evidence a
defendant is guilty of oppression, fraud or
ice.
Supporting Evidence
Cal. Civil Code §3294. White v. Ultramar,
Inc. (1929) 21 Cal.4th 563, 572-573; G.D.
Searle & Company v. Superior Court
(1975) 49 Cal. App.3d 22; Kendall Yacht
Corp. v. United California Bank (1975) 50
Cal.App.3d 949, 958; McDonneil v.
dmerican Trust Co. (1955) 130 Cal.App.2d
Deposition of Plaintiff at pp. 256 - 277,
aiiuched to of! Index of Exhibits as Exhibit
"B." Plaintiff's responses to Albay's
Special Interrogatories, Requests for
Production of. ‘Bocuments and Requests for
Admissions to Plaintiff, attached to the
index of Exhibits collectively as Exhibit
18. Plaintiff has failed to establish any
evidence, with clear and convincing proof,
that Albay acted with oppression, fraud or
malice at any time during his career.
Supporting Evidence
Deposition of Plaintiff at pp. 256 - 277,
attached to the Index of Exhibits as Exhibit
"B." Plaintiff's responses to Albay's
Special Interrogatories, Requests for
Production of Documents and Requests for
Admissions to Plaintiff, attached to the
Index of Exhibits collectively as Exhibit
Wt
MW
Wt
x 10581 ALBAY.
17. Moot. Plaintiff has dismissed his claim
for punitive damages as against ALBAY in
this matter.
18. Moot. Plaintiff has dismissed his claim
for punitive damages as against ALBAY in
this matter.
UXT,
BRON ERs RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY’S SEPARATE STATEMENT OF UNDISPUTEDnm
wo oN DH BR WN
10
Cal. Civil Code § 3294. White v. Ultramar,
Inc. 11999) 21 Cal.4th 563, 572-573; G.D.
Searle & Company v. Superior Court
(1975) 49 Cal. App.3d 22; Kendall Yacht
Corp. v. United Cali fornia Bank (1975) 50
Cala ‘App. 3d 949, 958; McDonnell v.
American Trust Co. (1955) 130 Cal.App.2d
296, 301
Dated: 4 24/1) BRAYTON*PURCELL LLP
By: ¥
Umu K. Tafisi
Attorneys for Plaintiff
K AnjuredMOS81Sipid.ns-ALBAY. 17
PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED
FACTS
UKT,
Preview
BRAYTON®PURCELL LLP ATTORNEYS AT LAW 222 RUSH LANDING ROAD PO BOX 6169 NOVATO, CALIFORNIA 94948-6169 (415) 898-1555 Co Oo NH HN & WY Ne pet pak tht ha oOo ND DH FF WwW Nm & 19 ALAN R. BRAYTON, ESQ., 5.B. #73685 DAVID R. DONADIO, ESQ., S.B. #154436 UMU K. TAFISI, ESQ., 8.B. #269862 BRAYTON*®PURCELL LLP Attorneys at Law 222 Rush Landing Road P.O. Box 6169 Novato, California 94948-6169 (415) 898-1555 ELECTRONICALLY FILED Superior Court of California, County of San Francisco SEP 29 2011 Clerk of the Court Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com BY: WILLIAM TRUPEK Deputy Cle Attorneys for Plaintiff SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO CHARLES HUSBAND, ASBESTOS No. CGC-09-275098 Plaintiff, PLAINTIFF'S RESPONSE TO VS. } DEFENDANT ALBAY CONSTRUCTION ) COMPANY’S SEPARATE STATEMENT ASBESTOS DEFENDANTS (B*P) ) OF UNDISPUTED FACTS Date: October 13, 2011 Time: 9:30 a.m. Dept:_220, Hon. Harold Kahn Trial Date: November 14, 2011 Action Filed: March 2, 2009 Plaintiff hereby submits the following responses to defendant ALBAY CONSTRUCTION COMPANY ’s Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment or, in the Alternative, Summary Adjudication, with reference to plaintiff's supporting evidence disputing such statements. UNDISPUTED MATERIAL FACTS AND ALLEGED SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE/EVIDENCE 1. Plaintiffs sued various defendants alleging that he was occupationally exposed to asbestos while working primarily as a carpenter and heavy machi operator at multiple locations for various employers from approximately 1972 to 2004. x 1088: “ALBAY: NUnjroserSpheee aLBav.egt dn ELAINTIFS RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED 1. Disputed. Defendant fails to point to specific page/line reference on which it relies for this statement. Plaintiffs Answers to Interrogatories, Set One, reflect plaintiff's allegations regarding asbestos exposure over several decades, starting in as early as the 1960s. UKTwoe A HH FY NY voN BW N RP NN MY RY SF Pe Be Se Se Se es BR Se ec A A RO YD KF Se eI RHA BR WH | S Supporting Evidence Plaintiff's Answers to Interrogatories, Set One, attached to the Index of Exhibits as Exhibit "A." 2. Plaintiff has sued Albay, alleging they ‘were a contractor working at various refineries during the time he also worked ere. Supporting Evidence Plaintiff's Answers to Interrogatories, Set One, attached to the Index of Exhibits as Exhibit "4." 3. Plaintiff testified during his deposition that he was directly employed by Albay Construction Company on multiple occasions during his career. Supporting Evidence Deposition of Plaintiff at pp. 256 - 264, autached to the Index of Exhibits as Exhibit 4. Plaintiff's exclusive remedy against Albay for any injuries he sustained while employed by Albay is provided for under The Workers Compensation Act. Supporting Evidence Labor Code § 3600 et seq. See also Johns-Manville Products Corp. y. Superior Court (1980) 27 Cal.3d 465, 468. 5. Plaintiff testified that he recalls working in the vicinity of Albay employees working on pipe and pipe related materials at Shell Oil Refinery in 1974 while he was employed by Dillingham Construction to build scaffolding. Supporting Evidence Deposition of Plaintiff at pp. 265 -270, gihached to the Index of enibits as Exhibit KAbgured 10581 stoldvar ALBAY. vod Plaintiff's Answers to Standard iterrogatories, Set One, attached as Exhibit F, to the Tafisi Decl.) 2. Undisputed. However Defendant fails to point to specific page/line reference on which it relies for this statement. 3. Undisputed. 4, Undisputed. 5. Disputed. Incomplete recitation of the facts. Misleading. Plaintiff saw ALBAY (ALBAY CONSTRUCTION COMPANY) employees at Shell Oil every day for about six months in 1974, when he worked for Dillingham and was building scaffolding. He saw ALBAY employees working on overhead piping systems and pumps. He worked shoulder to shoulder fo ALBAY’s employees for 30 percent of the time, since he put up scaffolding in the pipeway anc ALBAY’s employees used some of the same scaffolds that he was working on. 2 KT PLAINTIFFS RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTEDco Oo I DH RF BW N YN YPN YN NN DY He Be Se Be Be es Be Se eS oN DA MW fk YW NY - OC OD OB HD DH NM FB WY NY - OS 6. Plaintiff testified that he is unaware if any of the pipe materials Albay was using contained esbestos and nobody told him the materials Albay employees were using contained asbestos. Supporting Evidence Deposition of Plaintiff at p. 271:1-17, attached to the Index of Exhibits as Exhibit "BM KAlsjured\10583: “ALBAY. 3 (Newly Served Deposition of Charles Husband, Vol. II, April 19, 2011 (“Husband Depo.”), Pg. 265:18-267:2; Pg. 267:3-11; Pg. 267:17-268:13, attached as Exhibit A, to the Tafisi Decl.) (Husband Decl. { 7, attached as Exhibit B, to the Tafisi Decl.) Plaintiff saw the ALBAY employees working with insulating material on pipes and gasket material on valves. He saw them cut pipe down and knock it on the scaffolding, and he saw white, fibrous insulation material go all over the place. (Husband Depo., Pg. 268:14-22; Pg. 68:14-269:1, attached as Exhibit A, to the Tafisi Decl.) (Husband Decl. { 8, attached as Exhibit B, to the Tafisi Decl.) 6. Plaintiff saw the ALBAY employees working with insulating material on pipes and gasket material on valves. He saw them cut pipe down and knock it on the scaffolding, and he saw white, fibrous insulation material go all over the place. (Husband Depo., Pg. 268:14-22; Pg. 268:14-269:1, attached as Exhibit A, to the Tafisi Decl.) (Husband Decl. { 8, attached as Exhibit B, to the Tafisi Decl.) Plaintiff testified that other workers at the jobsite referred to the insulation on the pipes as asbestos insulation. (Husband Depo., Pg. 270:4-271:10, attached as Exhibit A, to the Tafisi Decl.) (Husband Decl. ¥ 11, attached as Exhibit B, to the Tafisi Decl.) He testified that this was in reference to the insulation that his Dillingham co-workers were working with. However, he was not asked if this insulation was the same as the insulation that the ALBAY employees were disturbing. Had he been asked, he would have testified that the insulation that other workers called asbestos insulation was the same type of white, fibrous pipe insulation that he saw ALBAY employees disturbing. (Husband Depo., Pg. 270:4-271:18, attached as Exhibit A, to the Tafisi Decl.) (Husband Decl. 7 11, attached as Exhibit B, to the Tafisi Decl.) UKT ELAINTIF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY’S SEPARATE STATEMENT OF UNDISPUTEDDP CN DA WH BR WN 2 BSkek FSF BEGGS = 5 22 Furthermore, plaintiff was not asked to describe what was flowing through the pipes. Had he been asked, he would have testified that they were steam and oil lines, and they were highly pressurized pipes. (Husband Decl. { 10, attached as Exhibit B, to the Tafisi Decl.} Defendant ALBAY admits in their General Order No. 129 Interrogatory responses that employees of ALBAY would “push back asbestos insulation in order to do tie-ins.” {ALBAY’s Response to General Order No. 129 Interrogatories, In re:_Complex Asbestos Litigation, San Francisco Superior Court No. 828684, No. 33, 42, attached as Exhibit E, to the Tafisi Decl.) The white, fibrous pire covering insulation material described by Mr. HUSBAND mere likely than not was asbestos-containing material. The pipe covering insulation described by Mr. HUSBAND could only have been a calcium silicate or "85% mag”. These forms of thermal insulation always had asbestos as a component throughout the 1950s and 1960s and into the early 1970s when the first non-asbestos containing pipe covering and block insulations were first introduced. (Declaration of Charles Ay “Ay Decl.,” 13 fitached as Exhibit D, to the Tafisi Moreover, plaintiff was not asked to describe the gasket material that he saw ALBAY employees working with on valves at Shell Oil in 1974. Had he been asked, he would have testified that he saw the ALBAY employees removing and installing grayish colored, fibrous gaskets on valves flanges associated with valves and pipes. Some of the gaskets had a metal ring. (Husband Decl. { 9, attached as Exhibit B, to the Tafisi Decl.) The gaskets that Mr. HUSBAND describes as grayish and fibrous, and some having a metal ring, at Shell Oil in 1974, more likely than not were asbestos-containing materials. This is because the vast majority of these types of gaskets used on insulated steam and oil lines, which are high heat and KNinjored\ 10581 Sigidies-ALBAY pd 4 UKT PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY S SEPARATE STATEMENT OF UNDISPUTEDOo eI DH RB Hw Me RR ww eM NM KN NN De Be me ee ee es UR A BR Oo NY Se SF owe I AHA RP BH NH YH SO 7. Plaintiff also saw Albay employees performing work ona Pumping system at hell but he does not specifically know what they were doing or if they were working with asbestos containing materials to which he was exposed. Supporting Evidence Deposition of Plaintiff at pp. 272 - 273, auiached to the Index of hh ibits as Exhibit KNlopured 1058) spires. high pressure piping systems, continui through the late 1980s, were ‘asbestos © containing. Additionally, Gerald Lamphiear, a project manager and Person Most Knowledgeable for Shell Oil Co., testified that Shell Oil was using asbestos- containing gaskets when he started in 1980; that at the time of the deposition (1992) Shell Oil had not yet found a suitable replacement for asbestos gaskets; and that Shell Oil purchased asbestos-containing askets from Flexitallic and Durabla. laration of Charles Ay “Ay Decl.,” 34 jitached as Exhibit D, to the Tafisi {Deposition of Gerald Tamphiear, in Mie el Gray v. Abex, SFSC 897887; Glen joone v. Abex, SFSC 910118; Harold Dennis v. Abex, SFSC 902130, SFSC 925508, and Robert and Marvel Gertz v Abex, SFSC 922716, p. 134:9-16; pp. 135:25-136:1, 10-11; p, 136:12-15, attached as Exhibit C, to the Tafisi Decl.) 7, Disputed. Incomplete recitation of the facts, and the pages to which defendant points as supporting evidence do not indicate that plaintiff was asked if ALBAY worked with asbestos containing materials in association with the pumping system. Nonetheless, irrelevant, as plaintiff testified that ALBAY employees disturbed pipe insulation and gaskets in his presence. Plaintiff testified that he s saw ALBAY employees working on the pumping system, and he testified that, “I can't really ‘ell you -exactly what they did...they were either taking them off and putting new ones on or repairing the leaks on the ones they were tearing — replacing.” Husband Depo., Pg. 270:4-271:18, tached as Exhibit A, to the Tafisi Decl.) Plaintiff refers to and incorporates herein Response No. 7, above. Plaintiff did not wear breathin protection when he worked around ALBAY’s employees when they performed this work. (Husband Decl. 4] 12, attached as Exhibit B, to the Tafisi Decl.) lofurer 1058) Sites: ALRAY wn 5 UKT ELAINTIFES RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTEDCRP SY HR HR FF BW YN The removal and disturbance of the thermal pipe insulation and gaskets by ALBAY employees in Mr. HUSBAND ’s presence, as described by Mr. HUSBAND, released respirable asbestos fibers that Mr. HUSBAND inhaled. This is especially so given that he did not wear breathing rotection. laration of Charles Ay “Ay Decl.,” 35, attached as Exhibit D, to the Tafisi ecl,) 8. Plaintiff testified that he recalled Albay 8. Disputed. Incomplete recitation of the employees performing some pipe welding facts. Misleading. work at Exxon Refinery in the 1970's while he was there for another contractor to build Plaintiff testified that he saw ALBAY scaffolding but does not know if the Albay employees at Exxon sofinery in 1972, when employees were working with asbestos he worked there for Oscar Erickson, on a containing products or materials. shutdown, for over three months. He worked shoulder to shoulder to the ALBAY Supporting Evidence employees about 20 percent of the time he De of Plaintiff at pp. 276 - 277, work wlan welt see rome pipe osition of Plaintiff at pp. ~ 277, work including welding on pipe, pulling i of. Eehibits as Exhibit steam valves, and changing lines. Plaintiff attached to the Index d chi 3 1 "BL" saw them removing insulation materials 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 from pipes, and the insulation looked white and fibrous, and it was flaky and dusty. Plaintiff worked near them when he was performing scaffolding work, building and tearing down scaffolds. When ALBAY employees tore down insulated pipe, the insulation chipped off and fell onto the scaffolding, | (Husband po., Pg. 273:21-274:2; Pg. 74:16-275:2; Pg. 275:22-276:2, pg. 275:3-21; Pg. 277:2-19; Pg. 274:24-275:2; Pg. 277:11-19, attached as Exhibit A, to the Declaration of Umu Tafisi “Tafisi Decl.”) claration of Charles Husband “Husband 1.” { 2, attached as Exhibit B, to the Tafisi Decl.) Plaintiff also saw ALBAY employees stirring up a lot of dust when they cleaned up their work area. During his deposition, he was not asked where the dust was from. Had he been asked, he would have testified that he saw the ALBAY employees sweeping up dust from the white, fibrous, flaky insulation that they were removing during their work on the pipes. (Husband Depo., Pg. Pg. 280:3-14, attached as Exhibit A, to the Tafisi Decl.) (Husband Decl. § 3, attached as Exhibit B, to the Tafisi Decl.) No i UKT Ears RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED2 oO ND HW B&B WwW NL me oe tte BRRRRORE SSR UAR EDGES 9, Albay served Plaintiff with Special Interrogatories, Request for uction of Documents, Request for Admissions, and Form Interrogatories, requesting that Plaintiff identify all facts to support his KUsjuedtoss HAtsuatuosersoioe apa’ __ClTFnm PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED FACTS Peo ie at the jobsite referred to the white insulating material on the pipes as asbestos ins ulation. usband Depo., Pg. 278:3-7, attached as hibit A, to the Tafisi Decl.) (Husband Deel. { 4, attached as Exhibit B, to the Tafisi Decl.) During his deposition, Plaintiff was not asked about what flowed through the pipes that ALBAY employees worked on. Had he been asked, he would have testified that the the pipes were for steam and oil, and they ighly pressurized. tebe Decl. 5, attached as Exhibit B, to the Tafisi Decl.) Plaintiff did not wear breathing protection when he worked around ALBA employees when they performed this work. (Husband Decl. € 6, ‘tached as Exhibit B, to the Tafisi Decl.) The white, fibrous pee coverin insulation material described AND more likely than not was Cabesios-containing material. The pipe covering insulation described by Mr. HUSBAND could only have been a calcium silicate or "85% mag”. These forms of thermal insulation always had asbestos as a component throughout the 1950s and 1960s and into the early 1970s when the first non-asbestos containing pipe covering and block insulations were first introduced. (Declaration of Charles Ay “Ay Decl,” bead attached as Exhibit D, to the Tafisi The removal and disturbance of the thermal pipe ins insulation by ALBAY employees in ISBAND’s presence, as described by Mr. HUSBAND, released respirable asbestos fibers that Mr. HUSBAND inhaled. This is especially so given that he did not wear breathing protection. (Declaration of Charles Ay “Ay Decl.,” 35, attached as Exhibit D, to the Tafisi 1.) 9, Undisputed. UKTwo om NON HB WN He woN NM MM N NON vt to _ &BRRkRESBREREBSSE A ARDREGH = S claims of alleged asbestos exposure against Albay, requesting a recitation of all facts known to each witness identified by Plaintiff, and requesting a statement of ail facts known to Plaintiff (whether from witnesses or documents) supporting his claims against Albay specifically seeking all information (documents, witnesses, facts) that products supplied by Albay contained asbestos, plus all information as to the manner in which Plaintiff claim his asbestos exposure from a product allegedly supplied by Albay. Supporting Evidence Albay’'s Special interrogatories, Request for Production of Documents, Request for Admissions, and Form Interrogatories, pra sanded on Plaintiff, attached to the Inde of Exhibits collectively as Exhibit 10. In his responses to Albay's request for all facts and information supporting his contentions, Plaintiff provided responses which included a list of jobsites where he alleges Alba’ formed work in his presence BUT provides only contradictory allegation with no factual detail of any work and failed to provide any facts that would show he was exposed to respirable asbestos as a result of any conduct by Albay or would support his claims against Albay based upon any theory of liability asserted in plaintiffs Complaint. Plaintiff also provided a list of potential witnesses with information pertaming to this subject but all witnesses identified in plaintiff's written or oral discovery requests were deposed and have no information or are deceased or unavailable following a reasonable inquiry and diligent search by counsel. Supporting Evidence Plaintiff's responses to Albay’s Special interrogatories, Requests for Production of Documents and Requests for Admissions to Plaintiff, attached to the Index of Exhibits collectively as Exhibit "D." See Declaration of Jasun Molinelli in support of Albay's Motion for Summary Judgment. KAsjuedinaser AY. 10. Disputed. ument of counsel. Incomplete recitation of facts. Also, Defendant fails to reference any page/line that supports these statements. Relevant excerpts from Plaintiff's response to Albay’s request for all facts and information was provided as follows: net Exxon Refinery in 1972] Plaintiff testified that he saw ALBAY employees removing pre- existing white, fibrous insulation on pipes, which created lots of dust in the area, and the ALBAY employees cleaned and swept up this dust in laintiff's presence...In 1975 ata y Area refinery, for about 6 months, plaintiff saw ALBAY employees working on overhead piping, pumps, and boilers, and they were removing and installing white fibrous insulation materials, ae removing and i ets on valves. The Temoval and installation of insulation created a lot of visible dust... Defendant admits in their General Order No. 129 Interrogatory responses that employees of ALBAY would “push back asbestos KMnjueedOSUISpieALBAY apd PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED FACTSoem NDA HW Pb WwW NY NN YN YN NKR Dy we a i on NH A FF YW NH &Y§ SD OD OD DH HH HF WN KF OS 11. Albay did not cause or contribute, in any way either directly or indirectly, laintiff to be exposed to asbestos during is working career. Supporting Evidence Deposition of Plaintiff at pp. 256 - 277, attached to the Index of Exhibits as Exhibit "B." Plaintiff's responses to Albay's Special Interrogatories, Requests for luction of Documents and Requests for Admissions to Plaintiff, attached to the Index of Exhibits collectively as Exhibit “D." “i K.Nlsjured\10581Siplf\as-ALBAY. KAtsorestoseiSplOuenaLpavwpd ln PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY’S SEPARATE STATEMENT OF UNDISPUTED insulation in order to do tie-ins.”...In re: Complex Asbestos Litigation, San Francisco Superior Court No. 828684, No. 33, 2. Plaintiffs’ experts in similar cases have provided depositions, declarations and trial testimony, that more likely than not, the ets, high temperature thermal pipe insulation...manipulated and disturbed by ALBAY employees contained asbestos, and that when broken, torn, cut, frayed, or disturbed the asbestos is released into the air. Plaintiff inhaled the asbestos-laden air...” (Plaintiff's Response to ALBAY’s Special Interrogatory No. 1, Pg. 1:25-5:23, attached as Exhibit G, to Tafisi Decl.) 11. Disputed. Argument of counsel. Defendant fails to reference any page/line of Plaintiff's written discovery responses to sul pport its position. Incomplete recitation of facts. Plaintiff testified that he saw ALBAY employees at Exxon refinery in 1972, when he worked there for Oscar Erickson, on a shutdown, for over three months. He worked shoulder to shoulder to the ALBAY employees about 20 percent of the time he was at Exxon. ALBAY performed pipe work including welding on pipe, pulling steam valves, and changing lines. Plaintiff saw them removing insulation materials from pipes, and the insulation looked white and fibrous, and it was flaky and dusty. Plaintiff worked near them when he was performing scaffolding work, building and tearing down scaffolds. When ALBAY employees tore down insulated pipe, the insulation chipped off and fell onto the scaffolding. (Husband epo., Pg. 273:21-274:2; Pg. 74:16-275:2; Pg. 275:22-276:2; Pg. 275:3-21; Pg. 277:2-19; Pg. 274:24-275:2; Pg. 277:11-19, attached as Exhibit A, to the Declaration of Umu Tafisi “Tafisi Decl.) (Declaration of Charles Husband “Husband Decl.” 2, attached as Exhibit B, to the Tafisi Decl.) UKTmW A HW FB WN 10 We KAbsjuresitosa: Plaintiff also saw ALBAY employees stirring up a lot of dust when they cleaned up their work area. During his deposition, he was not asked where the dust was from. Had he been asked, he would have testified that he saw the ALBAY employees sweeping up dust from the white, fibrous, flaky insulation that they were removing during their work on the pipes, (Husband Depo., Pg. Pg. 280:3-14, attached as Exhibit A, to the Tafisi Decl.) (Husband Decl. j 3, attached as Exhibit B, to the Tafisi Decl.) People at the jobsite referred to the white insulating material on the pipes as asbestos insulation. (Husband Depo., Pg. 278:3-7, attached as Exhibit A, to the Tafisi Decl.) (Husband Decl. € 4, attached as Exhibit B, to the Tafisi Decl.) During his deposition, Plaintiff was not asked about what flowed through the pipes that ALBAY employees worked on. Had he been asked, he would have testified that the pipes were for steam and oil, and they were highly pressurized. (Husband Decl. 5, attached as Exhibit B, to the Tafisi Decl.) Plaintiff did not wear breathin: tection when he worked around ALBAY’s employees when they performed this work. (Husband Decl. { 6, attached as Exhibit B, to the Tafisi Dec!.) Plaintiff also saw ALBAY employees at Shell Oil every day for about six months in 1974, when he worked for Dillingham and was building scaffolding. He saw ALBAY employees working on overhead piping systems and pumps. He worked shoulder to joulder to ALBAY’s employees for 30 percent of the time, since he put up scaffolding in the pipeway and ALBAY’s employees used some of the same scaffolds that he was working on. (Husband Depo., Pg. 265:18-267:2; Pe. 267:3-11; Pg. 267:17-268:13, attached as Exhibit A, te the Tafisi Decl.) (Husband Decl. 7, attached as Exhibit B, to the Tafisi Decl.) UKT PLAINTIFF'S: RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED FACTSOo CO Ss AD th fe ND we NB Vv Ww ye ret te BYeRRRBEBRE BSeAR DE GS = Ss Plaintiff saw the ALBAY employees working with insulating material on pipes and gasket material on valves. He saw them cut pipe down and knock it on the scaffolding, and he saw white, fibrous insulation material go all over the place. {Husband Depo., Pg. 268:14-22; Pg. 268:14-269:1, attached as Exhibit A, to the Tafisi Decl.) (Husband Decl. { 8, attached as Exhibit B, to the Tafisi Decl.) Plaintiff was not asked to describe the gasket material that he saw ALBAY employees working with on vaives at Shell Gil in 1974. Had he been asked, he would have testified that he say the > AL BAY ish employees removing and installing grayisl colored, fibrous gaskets on valves and flanges associated with valves and pipes. Some of the gaskets had a metal ring. (Husband Decl. € 9, attached as Exhibit B, to the Tafisi Decl.) Furthermore, plaintiff was not asked to describe what was flowing through the pipes. Had he been asked, he would have testified that they were steam and oil lines, and they were hi ly pressurized pipes. (Husband Decl. { 10, attached as Exhibit B, to the Tafisi Decl.) Other workers at the jobsite referred to the insulation on the pipes as asbestos (iiosband Depo Pg. 270:4-271:10 lus . Pg. 270: 210, attached as Exhibit A, to the Tafisi Decl.) (Husband Decl. { 11, attached as Exhibit B, to the Tafisi Decl.) He testified that this was in reference to the insulation that his Dillingham co-workers were working with. (Husband Depo., Pg. 270:4-271:18). However, he was not asked if this insulation was the same as the insulation that the ALBAY employees were disturbing. Had he been asked, he would have testified that the insulation that other workers called asbestos insulation was the same type of white, fibrous pipe insulation that he saw ALBAY employees disturbing. (Husband Decl. { 11, attached as Exhibit B, to the Tafisi Deci.) UKT ELAINTIFE'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY’S SEPARATE STATEMENT OF UNDISPUTEDCo Re SD fe ND me oot kph ph tk hk Se WD A DW & WwW Ne y Qo ‘KAbujured O55 Sighd\yas ALBAY. pd Plaintiff did not wear breathing protection when he worked around ALBAY’s employees when they performed this work. (Husband Decl. ” attached as Exhibit B, ¢ the Tafisi Dec! Defendant ALBAY admits in their General Order No. 129 Interrogatory responses that employees of ALBAY would h back asbestos insulation in order to do tie-ins. (ALBAY’s Response to General Order No. 129 Interrogatories, In re:_ Complex Asbestos Litigation, San Francisco Superior Court No. 828684, No. 33, { 2, attached as Exhibit E, to the Tafisi Dee -) Gerald Lamphiear, a project er and Person Most Raouledomsble for Shell Oil Co. testified in multiple cases on Fel 21, 1992, Mr. Lamphiear testified that Shell Oil was using asbestos-containing skets when he started in 1980 and had en unable to successfully phase them out. Mr. Lamphiear testified that, at the time of the deposition, Shell had not yet found a suitable r acement for asbestos gaskets. iear testified that Shell rte asbestos-containing gaskets from lexitallic and Durabla. (Deposition of Gerald Lamphiear, in Michael Gray v. Abex, SFSC 897887; Glen Boone v. Abex, SFSC 910118; Harold Dennis v. Abex, SFSC 902130, SFSC 925508, and Robert and Marvel Gertz v Abex, SFSC 922716, p. 134:9-16; pp. 135:25-136-1, 10-11: 3 p. 136:12- 15, attached as Exhibit C, to the Tafisi Decl. ) The white, fibrous pipe covering insulation material described pi Mr. HUSBAND more likely than not was asbestos-containing material. The pipe covering insulation described by Mr. HUSB. could only have been a calcium silicate or "85% mag”. These forms of thermal insulation always had asbestos as a component throughout 1950s and 1960s and into the early 1970s when the first non-asbestos containing pipe covering and block insulations were first introduced. (Declaration of Charles Ay “Ay Decl.,” 33, ttached as Exhibit D, to the Tafisi cl. UKT PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED FACTS12 OO SDN UW PB WN om NN NN WON NN Rm mee ean A A BW YD = SO wo a DA RB WH @ 12. Albay having not breached any duty to plaintiff, nor caused or contributed to plaintiff's exposure to asbestos, is not liable to plaintiff under any theory of liability asserted in plaintiff's Complaint. Supporting Evidence Deposition of Plaintiff at pp. 256 - 277, atinched to a) ie enibits as Exhibit "B." Plaintiff's responses to Albay's Special Interrogatories, Requests for 'roduction af Documents and Requests for Admissions to Plaintiff, attached to the Index of Exhibits collectively as Exhibit it ut KAlsiurehtosst. EBAY. The gaskets that Mr. HUSBAND describes as grayish and fibrous, and some having a metal ring, at Shell Oil in 1974, more likely than not were asbestos-containing materials. This is because the vast majority of these types of gaskets used on insulated steam and oil lines, which are high heat and high pressure piping systems, continuing through the late 1980s, were asbestos containing. Additionally, Gerald Lamphiear, a project manager and Person Most Knowledgeable for Shell Oil Co., testified that Sheil Oil was using asbestos- containing ets when he started in 1980; that at the time of the deposition (1992) Shell Oil had not yet found a suitable replacement for asbestos gaskets; and that Shell Oil purchased asbestos-containing gaskets from Flexitallic and Durabla. (Declaration of Charles Ay “Ay Decl.,” 34, sitached as Exhibit D, to the Tafisi eck. The removal and disturbance of the thermal pipe insulation and ets by ALBAY employees in Mr. HUSBAND’s presence, as described by Mr. HUSBAND, released respirable asbestos fibers that Mr. HUSBAND inhaled. This is especially so given that he did not wear breathing protection. (Declaration of Charles Ay “Ay Decl.,” 135 fitached as Exhibit D, to the Tafisi ecl, 12. Disputed. Argument of counsel. Defendant fails to reference any page/line of Plaintiffs written discovery responses to Support its position. Incomplete recitation of facts, Plaintiff refers to and incorporates herein Response to No. 11, above. ELAINTIFPS RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED2 Oo VD Hh B&B WN mw yoN VPP vote BRRRRORE SSS URBDREOS A S ISSUE NO. 2: SUMMARY ADJUDICATION AS TO PLAINTIFF'S CAUSE OF ACTION FOR NEGLIGENCE SHOULD BE GRANTED BECAUSE PLAINTIFF IS UNABLE TO ESTABLISH THE REQUISITE ELEMENT CAUSATION. 13, Causation is an essential element of all of Plaintiff's causes of action, and Plaintiff has failed to produce admissible evidence that he was exposed to asbestos from any work activity or product for which Albay is responsible. Supporting Evidence Deposition of Plaintiff at PP. 256 - 277, attached to the Index of Exhibits as Exhibit "B." Plaintiff's responses to Albay's Special interrogatories, Requests for -oduction 9, uments and Requests for Admissions to Plaintiff, attached to the Index of Exhibits collectively as Exhibit 14, Without Proof of causation, Albay can not, and should not be held negligent for any acts or omissions which lack such proof. Therefore summary adjudication as to plaintiff's cause of action for negligence is proper as a matter of law. Supporting Evidence Deposition of Plaintiff at pp. 256 - 277, attached to the Index of Exhibits as Exhibit "B." Plaintiff's responses to Albay's Special Interrogatories, Requests for Production of Documents and Requests for Admissions to Plaintiff, attached to the Index of Exhibits collectively as Exhibit "D." 13. Disputed. Argument of counsel. Defendant fails to reference any page/line of Plaintiff's written discovery responses to su pport its position. Incomplete recitation of facts. Misleading. Plaintiff refers to and incorporates herein Response to No. 11, above. 14. Disputed. Argument of counsel. Defendant fails to reference any page/line of Plaintiff's written discovery responses to support its position. Incomplete recitation of facts. Plaintiff refers to and incorporates herein. Response to No. 11, above. ISSUE NO. 3: SUMMARY ADJUDICATION AS TO PLAINTIFF'S CAUSE OF ACTION FOR STRICT LIABILITY SHOULD BE GRANTED BECAUSE PLAINTIFF IS UNABLE TO ESTABLISH THE REQUISITE ELEMENTS OF EXPOSURE/CAUSATION. 15. Plaintiff filed this action for strict liability based on his alleged exposure to asbestos-containing products during his career primarily as a carpenter. Supporting Evidence Deposition of Plaintiff at pp. 256 - 277, attached to the inte hibits as Exhibit "B.” Plaintiff's responses to Albay's Special Interrogatories, Requests for KYuresrose: Y, 15. Moot. Plaintiff has dismissed his cause of action for strict liability as against ALBAY in this matter. ELANTIEPS RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTEDOo Oo YN A WA B® Ww Ne jem eU Aa RE HK SS 19 Production of Documents and Requests for Admissions to Plaintiff, attached to the Index of Exhibits collectively as Exhibit "p" Jimenez v. Superior Court (2002) 29 Cal.4th 473, 479; Pierson vy. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 345 (law of negligence, not strict liability, governs services); Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248; Pena v. Sita World Travel, Inc. (1978) 88 Cal.App.3d 642; DiCola v. White Bros. Performance Prods., Inc. (2008) 158 Cal.App.4th 666, 674; Monte Vista v. Superior Court (1991) 226 Cal.App.3d 1681. 16. Albay is entitled to summary 16. Moot. Plaintiff has dismissed his cause adjudication on a claim of strict product of action for strict liability as against liability because plaintiff's discovery ALBAY in this matter. nses and deposition testimony reveal he lacks any factual basis for a finding that Albay either manufactured or supplied any of the products at issue - an essential element of a claim for strict product liability. Supporting Evidence Deposition of Plaintiff at pp. 256 - 277, attached to the Index of Exhibits as Exhibit "B." Plaintiff's responses to Albay's Special Interrogatories, Requests for 'roduction of Documents and Requests for Admissions to Plaintiff, attached to the Index of Exhibits collectively as Exhibit Jimenez v. Superior Court (2002) 29 Cal.4th 473, 479; Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 345 (law of negligence, not strict liability, governs services); Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248; Pena v. Sita Worid Travel, Inc. (1978) 88 Cal.App.3d 642; DiCola v. ite Bros. Performance Prods., Inc. (2008) 158 Cal.App.4th 666, 674; Monte Vista v. Superior Court (1991) 226 Cal.App.3d 1681. Mi Wt KeAlgjuresA10581 AY. 15 UKT PLAINTIFP'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY’S SEPARATE STATEMENT OF UNDISPUTEDOo em WD HW PR wWwN ee a ee ae oN DAA PB WN | S ISSUE NO. 4: SUMMARY ADJUDICATION AS TO PLAINTIFF'S REQUEST FOR PUNITIVE DAMAGES SHOULD BE GRANTED BECAUSE PLAINTIFF IS UNABLE TO PROVE ALBAY ACTED WITH OPPRESSION, FRAUD OR MALICE. 17. Any claim for punitive damages Tequires "clear and convincing” evidence a defendant is guilty of oppression, fraud or ice. Supporting Evidence Cal. Civil Code §3294. White v. Ultramar, Inc. (1929) 21 Cal.4th 563, 572-573; G.D. Searle & Company v. Superior Court (1975) 49 Cal. App.3d 22; Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958; McDonneil v. dmerican Trust Co. (1955) 130 Cal.App.2d Deposition of Plaintiff at pp. 256 - 277, aiiuched to of! Index of Exhibits as Exhibit "B." Plaintiff's responses to Albay's Special Interrogatories, Requests for Production of. ‘Bocuments and Requests for Admissions to Plaintiff, attached to the index of Exhibits collectively as Exhibit 18. Plaintiff has failed to establish any evidence, with clear and convincing proof, that Albay acted with oppression, fraud or malice at any time during his career. Supporting Evidence Deposition of Plaintiff at pp. 256 - 277, attached to the Index of Exhibits as Exhibit "B." Plaintiff's responses to Albay's Special Interrogatories, Requests for Production of Documents and Requests for Admissions to Plaintiff, attached to the Index of Exhibits collectively as Exhibit Wt MW Wt x 10581 ALBAY. 17. Moot. Plaintiff has dismissed his claim for punitive damages as against ALBAY in this matter. 18. Moot. Plaintiff has dismissed his claim for punitive damages as against ALBAY in this matter. UXT, BRON ERs RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY’S SEPARATE STATEMENT OF UNDISPUTEDnm wo oN DH BR WN 10 Cal. Civil Code § 3294. White v. Ultramar, Inc. 11999) 21 Cal.4th 563, 572-573; G.D. Searle & Company v. Superior Court (1975) 49 Cal. App.3d 22; Kendall Yacht Corp. v. United Cali fornia Bank (1975) 50 Cala ‘App. 3d 949, 958; McDonnell v. American Trust Co. (1955) 130 Cal.App.2d 296, 301 Dated: 4 24/1) BRAYTON*PURCELL LLP By: ¥ Umu K. Tafisi Attorneys for Plaintiff K AnjuredMOS81Sipid.ns-ALBAY. 17 PLAINTIFF'S RESPONSE TO DEFENDANT ALBAY CONSTRUCTION COMPANY'S SEPARATE STATEMENT OF UNDISPUTED FACTS UKT,