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

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Eugene C. Blackard Jr. (Bar No. 142090)
Jocelyn M. Soriano (Bar No. 201169)

Jasun C. Molinelli (Bar No. 204456) ELECTRONICALLY
ARCHER NORRIS
A Professional Law Corporation F ILE D
2033 North Main Street, Suite 800 . _ Superior Court of California,
Walnut Creek, California 94596-3759 ounty of San Francisco
Telephone: — 925.930.6600 JUL 21 2011
Facsimile: 925.930.6620 Clerk of the Court

- BY: WILLIAM TRUPEK

Deputy Clerk

Attorneys for Defendant
ALBAY CONSTRUCTION COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

CHARLES HUSBAND, ASBESTOS
Case No. CGC-09-275098

Plaintiff,
MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
ASBESTOS DEFENDANTS (BP) et al.,
Date: October 13, 2011
Defendants. Time: 9:30 a.m.
: Dept.: 220
Judge: Hon. Harold Kahn

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

1. INTRODUCTION

This is a personal injury action in which Plaintiff seeks damages for injuries he allegedly
sustained from exposure to asbestos-containing products. Plaintiff claims asbestos exposure
during the course of his work primarily as a carpenter for multiple employers in California from
1972 to 2004.

Plaintiff has named ALBAY CONSTRUCTION COMPANY (“ALBAY”) as a defendant
in this action because he alleges that he worked on the same job where Albay was also employed
as a contractor.

However, Albay has now proved with affirmative evidence that plaintiff was never caused

to be exposed to respirable asbestos due to the activities of any Albay employees during his

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MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT.career. Thus, Albay employees never caused plaintiff te be exposed to any asbestos, let alone any
respirable asbestos at any time. '

Consequently, Plaintiff cannot prove that he was caused to be exposed to any respirable
asbestos fibers for which Albay may be held liable under any theory of liability alleged in
plaintiff's Complaint. Unless Plaintiff can provide reliable facts to show otherwise, Albay’s
Summary Judgment motion should be granted as a matter of law.

If. STATEMENT OF FACTS

Plaintiffs sued various defendants alleging that he was occupationally exposed to asbestos
while working primarily as a carpenter and heavy machinery operator at multiple locations for
various employers from approximately 1972 to 2004. (SS No. 1 Plaintiff has sued Albay,
alleging they were a contractor working at various refineries during the time he also worked
there. (SS No. 2.)

Plaintiff testified during his deposition that he was directly employed by Albay
Construction Company on multiple occasions during his career. (SS No. 3) Plaintiff's exclusive
remedy against Albay for any injuries he sustained while employed by Albay is provided for
under The Workers Compensation Act. (SS No. 4.) ©

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. (SS No. 5)

Plaintiff testified that he is unaware if any of the pipe materials Albay was using contained
asbestos and nobody told him the materials Albay employees were using contained asbestos. (SS
No. 6.) Plaintiff also saw Albay employees performing work on a pumping system at Shell but he
does not specifically know what they were doing or if they were working with asbestos
containing materials to which he was exposed. (SS No. 7.)

Plaintiff testified that he recalled Albay employees performing some pipe welding work at
Exxon Refinery in the 1970’s while he was there for another contractor to build scaffolding but

1 “Asbestos materials do not pose a health risk when they are intact and undisturbed. Grahn v. Tosco Corp. (1997)
58 Cal. App.4" 1373, 1397-1398

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MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT—

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does not know if the Albay employees were working with asbestos containing products or
materials. (SS No. 8.)

Albay served Plaintiff with Special Interrogatories, Request for Production of Documents,
Request for Admissions, and Form Interrogatories, requesting that Plaintiff identify all facts to
support his 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 all 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. (SS No. 9.)

In his responses to Albay’s request for all facts and information supporting his
contentions, Plaintiff provided responses which inciuded a list of jobsites where he alleges Albay
performed 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 plaintiff's Complaint. Plaintiff also provided a list of
potential witnesses with information pertaining to this subject but all witnesses identified in
plaintiff's written or oral discovery requests are deceased or unavailable following a reasonable
inquiry and diligent search by counsel. (SS No. 10.)

Albay did not cause or contribute, in any way, either directly or indirectly, plaintiff to be
exposed to asbestos during his working career. (SS No. 11.) Albay having not breached any duty
to plaintiff, nor caused or contributed to plaintiffs exposure te asbestos, is not liable to plaintiff
under any theory of liability asserted in plaintiff's Complaint. (SS No. 12.)

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. (SS No. 13.) 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.
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MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTCo Oo NW DA

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(SS No. 14.)

Plaintiff filed this action for strict liability based on his alleged exposure to asbestos-
containing products during his career primarily as a carpenter. (SS No. 15.) Albay is entitled to
summary adjudication on a claim of strict product liability because plaintiff's discovery responses
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. (SS No. 16.)

Any claim for punitive damages requires “clear and convincing” evidence a defendant is
guilty of oppression, fraud or malice. (SS No. 17.) 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. (SS No. 18.)

Absent the existence of a material fact proving that an asbestos-containing product was
caused by Albay to be exposed to plaintiff, plaintiff's Complaint fails to state a cause of action
against Albay and Albay’s motion should be granted as a matter of law or, in the alternative,
summary adjudication as to each cause of action and plaintiff's prayer for punitive damages.

1. ARGUMENT

A Plaintiff Cannot Prove the Existence of A Triable Issue of Material Fact,
It is well-established that one of the purposes of summary judgment is to provide courts

with a mechanism to cut through the parties’ pleadings in order to determine whether, despite
their allegations, trial is in fact necessary to resolve a dispute. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843 As the court in MeCreery v, Eli Lily & Co. (1978) 87 Cal.App.3d 77,
82, held, another important purpose is to expedite litigation by avoiding needless trials by
disposing of cases which are unmeritorious in substance and fact. In that regard, the court shall
climinate harm or harassment of parties at the expense of the public and in particular of other
litigants. (Wells Fargo Bank v. Kincaid (1968) 260 Cal. App.2d 120,123.)

Summary judgment is proper if there is no triable issue as to any material fact and the
moving patty is entitled to a judgment as a matter of law. (CCP §437(c).) Under section 437(c),

a defendant is entitled to summary judgment if the record establishes as a matter of law that
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MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTplaintiff's action is without merit. (Zelda, Inc. v. Northiand Ins. Co. (1997) 56 Cal.App.4th 1252,
1258.) A defendant may satisfy this burden by showing that one or more elements of the cause of
action cannot be established. (CCP §437(c(o)(2):) Once it has been determined that a cause of
action cannot be sustained, the burden shifis to the plaintiff to set forth specific facts which
establish a triable issue. (CCP §437(c)(0)(2); Union Bank v. Superior Court (1995) 31
Cal.App.4" 573.) A plaintiff “may not rely upon the mere allegations. . . of its pleadings to
show that a triable issue of material fact exists but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists as to that cause of action.” (CCP §4370(p)(2).)

Since under the facts presented here, Plaintiffs set forth no specific facts to show that a
disputed issue of material fact exists requiring trial, Albay is entitled to judgment as a matter of
law.

B. Plaintiffs Cannot Prove the Existence of a Triable Issue of Fact

Plaintiff's alleged causes of action against Albay require proof of causation. (McGonnell
v. Kaiser Gypsum Co.. (2002) 98 Cal. App.4th 1098, 1102-3; Sindell v. Abbott Laboratories
(1980) 26 Cal.3d 588; Williams v. Wraxall (1995) 33 Cal.App.4th 120; Chavers v. Gatke Corp.
(2003) 107 Cal.App.4th 606.)

In the context of asbestos litigation, causation is established where a plaintiff establishes
exposure to the defendant’s products. If there is no exposure to the claimed deleterious product,
as here, there can be no causation and all theories of liability fail. (Lineaweaver v. Plant
Insulation Co. (1995) 31 Cal.App.4th 1409; Dumin v. Owens-Corning Fiberglass Corp. (1994)
28 Cal.App.4th 650; 655; Rutherford v. Owens Hlinois, Inc. (1997) 16 Cal.4th 953; Gatton v. AP.
Green Services (1998) 64 Cal.App.4th 688, 690; McGonnell v. Kaiser Gypsum Co. (2002) 98
Cal.App.4th 1098.) ,

Like negligence and strict liability, fraud claims are governed by tort principles and also
require a showing of causation, i.e., exposure to a defendant’s product. Well recognized under
California law, a complete causal relationship between the fraud or deceit and the plaintiff's
damages is required. (Williams v. Wraxall (1995) 33 Cal.App.4th 120.) As enunciated by the

Court in City Solutions, Ine. v. Clear Channel Communications, (2004) 365 F.34 835, “whether
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MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTthe claim lies in false representation, concealment, or nondisclosure, the elements of fraud giving
rise to the tort action for deceit in California, are (1) misrepresentation; (2) knowledge of falsity;
(3) intent to defraud; (4) justifiable reliance; and (5) resulting damage.” (Emphasis added.) Civil
Code §§1709 and 1710. See also, City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith.
(1988) 68 Cal.App.4th 445 (common law elements of frand which gives rise to the tort action of
deceit requires causation); Hauter v. Zogarts (1975) 14 Cal.3d 104 (false representation relies on
common law tort principles under Restatement Torts 402B).

As explained by the Supreme Court in Sindell v. Abbott Laboratories (1980) 26 Cal.3d
588 where, as here, the plaintiff alleges negligence, strict liability, breach of warranty, conspiracy,
fraud and fraudulent representation, and enterprise (market share) liability, the Court held:

[T]he imposition of liability depends upon a showing by plaintiff
that his injuries were caused by an act of the defendant or by an
instrumentality under the defendant’s control. The rule applies
whether the injury resulted from an accidental event or from the use
of a defective product. (Citations omitted. Emphasis added.)

The court in Smith v. ACandS (1994) 31 Cal_App.4th 77, 89, further held:

[E]ven under the most lenient causation standards, there must be
proof that defendant's asbestos products or activities were present at
plaintiff's worksite...Lacking proof of causation, all of [plaintiff's]
claims ... fail. [Emphasis added.]

The mere possibility is insufficient to establish that the “proximate cause” element of
Plaintiff's causes of action. (Morgenroth v. Pacific Medical Center, Inc. (1976) 54 Cal.App.3d
§21, 533; Johnston v. Brother (1961) 190 Cal.App.2d 464, 473; Pacific Employers Ins. Co. v.
Industrial Accident Commission (1960) 182 Cal.App.2d 162, 165.) Rather, “the evidence must
be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party
opposing the motion for summary judgment.” (McGonnell, supra, at 1419-1421.)

In McGonnell, a wrongful death action, plaintiffs claimed that their decedent was
exposed to asbestos-containing products manufactured by Kaiser Gypsum. The decedent was
unable at deposition, before his demise; to identify any product he used or disturbed as having
been manufactured by Kaiser Gypsum. Kaiser Gypsum moved for summary judgment in the

subsequent wrongful death action. In opposition to the motion, plaintiffs offered invoices

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showing that the decedent’s employer, a hospital, had purchased Kaiser Gypsum products in the
1970's.

Plaintiffs further produced copies of contractor invoices, bearing the notation that the
Kaiser products were intended for a project at the decedent’s worksite. Plaintiffs also offered
portions of the depositions of a contractor, and a building supplier that showed that Kaiser
Cement products might have been delivered or used on a project at the hospital in the late
1970’s. In addition, plaintiffs offered the defendants’ discovery responses wherein Kaiser
Gypsum admitted, that its joint compound contained asbestos in the early to mid-1970s, and that
Kaiser Cement produced plastic cement which contained asbestos until 1973. The trial court
granted the motion for summary judgment, finding that no triable issue of fact existed regarding
the decedent’s exposure to either a Kaiser Gypsum or Kaiser Cement product.

On appeal, the First Appellate District affirmed the trial court’s order and held that the
deposition testimony alone, showing he had no knowledge of exposure to Kaiser products, was
sufficient to shift the burden to plaintiffs to demonstrate the existence of triable issues of fact, that
js, that the decedent was in fact exposed. Once shifted, plaintiffs were required to put forth
evidence to show that the decedent was actually exposed to asbestos by way of a Kaiser Gypsum
or Kaiser Cement product, which they failed to do. The Court of Appeal affirmed, holding at
page 1103-1105:

... Plaintiffs may prove causation in an asbestos case by
demonstrating that the plaintifi’s or decedent’s exposure to the
defendant’s asbestos-containing product in reasonable medical
probability was a substantial factor in contributing to the aggregate
dose of asbestos the plaintiff or decedent inhaled or ingested, and
hence to the risk of developing asbestos-related cancer. The
McGonnell deposition excerpt supporting defendants’ summary
judgment motion showed McGonnell had no knowledge of any
exposure to Kaiser Products, let alone any Kaiser products that
contained asbestos.

McGonnell’s deposition excerpt is precisely the type of evidence
specified by the Code of Civil Procedure § 437¢ and our Supreme
Court as proper evidence to support a summary judgment motion.
The evidence showed plaintiffs could not establish an element of

their case --- causation.

At his deposition, he was able to identify the kinds of materials he
worked with, . . . His failure to place any Kaiser products at his
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MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTplace of employment shifted the burden to plaintiffs to produce
some circumstantial evidence to establish exposure to Kaiser
products.

Here, based upon the evidence produced to date, this court should determine that Albay is
not a culpable party. The facts are exceedingly clear. Based upon plaintiff's testimony at
deposition, Albay did not and could not have caused or contributed to Plaintiff's exposures to
asbestos at anytime during his working career. (SS Nos. 3-8.) Sisice no triable issues of fact
exist, Albay is entitled to judgment as a matter of law.

Cc. Plaintiffs’ Answers to Albay’s Written Interrogatories Create No Triable Issues of
Fact

1. Plaintiff's Answers to Interrogatories Lacks Material Facts to Prove That Albay
Caused or Contributed to Plaintiff's Exposures

It is well-settled that in responding to written interrogatories, a party may not rely on the
allegations of his own pleadings, even if verified, to make the evidentiary showing required for
summary judgment. (C.C.P. section 437c(p)(2)}; College Hospital, Ine. v. Superior Court of
Orange County (1994) 8 Cal.4" 704, 720; See also, Parker v. Twentienth Century Fox-Film
Corp. (1970) 3 Cal.3d 176, 181.) Moreover, a Plaintiff may not rely on contradictions in his
own testimony to create a triable issue of fact. (State Farm Mutual Automobile Ins. Co. v.
Eastman, et. al. (158 Cal App. 3d 562.}

In State Farm Mutual Automobile Ins. Co. v. Eastman, State Farm sought declaratory
relief as to its duty to defend or indemnify insured driver (Eastman) of a dune buggy involved in
an accident. The dune buggy’s owner’s insurer cross complained secking the same relief. The
dune buggy was owned by Eastman’s brother-in-law. State Farm moved for summary judgment
on the grounds that it had ne duty to defend where the driver had no permission by the owner to
operate the vehicle. State Farm relied on various declarations, depositions and answers to request
for admissions in support of the motion.

According to deposition testimony, Eastman admitted that he had no permission to operate
the vehicle. In opposition to the motion, Eastman submitted his own answers to certain

interrogatories which were directly contrary to testimony given by Eastman, indicating that he

ALBI84/1193053-1 8

MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENThad implied permission and as such a triable issue of fact existed.

On appeal, the Court held that a “party may not rely on contradictions in his own
testimony to create a triable issue of fact for purposes of summary judgment. The Court reasoned
that where admissions are made at deposition, the “credibility of the admissions are value so
highly that the controverting affidavits [or answers to interrogatories] may be disregarded as
irrelevant, inadmissible or evasive.” (State Farm, supra., at 573.)

Here, Albay propounded Special Interrogatories, Form Interrogatories, Request for
Admissions and Request for Production of Documents. (SS Nos. 9.) The discovery requests were
specifically tailored to elicit information related to the claims against Albay, including that
Plaintiff describe the nature of the exposure, the locations, dates and witnesses to the alleged
exposure.

In response to the interrogatory requesting the date and location of exposure, Plaintiff .

provided pure allegation and identified a long laundry list of jobsites and employers, all of which

were contradictory to. his deposition testimony, and all of which lacked any substantial fact
whatsoever that would prove he was exposed te asbestos as a result of an act or omission of
Albay. (SS Nos. 10.)

This evidence does not create a triable issue of fact since this information was verified by
Plaintiff at deposition. Under Code of Civil Procedure section 437c(p)(2), general allegations and
unsupported conclusions are inadmissible for purposes of summary judgment. Further, under the
principles of State Farm, where the allegations are in direct contradiction to his admissions
obtained at deposition, the controverting evidence must be disregarded as inadmissible evidence.

In response to specific interrogatory requests seeking witnesses and documents that would
provide further information with regard to plaintiff allegations against Albay Construction
Company, plaintiff answered by citing a list of names and deposition transcripts with no rhyme or
reason much like plaintiff did in Andrews v. Foster Wheeler (2006) 138 Cal.app.4th 96. (SS Nos.
22-23.)

Under Andrews v. Foster Wheeler (2006) 138 Cal.app.4th 96: “plaintiffs” list of names

and depositions and documents do not raise disputed issues of material fact by themselves” since
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Plaintiff failed to provide any actual facts related to Plaintiff's claims. In Andrews, in response to
similar Special Intertogatories, Plaintiff listed a number of people who served with the Plaintiff
aboard a vessel. Jd. at 105. However, Plaintiff did not state that any of these witnesses had any
information particular to the moving party Foster Wheeler. In response to a request seeking a
description of the Foster Wheeler product that allegedly exposed the Plaintiff to asbestos, Plaintiff
merely referred to his general allegations. In sum, Plaintiff answered defendant-specific
comprehensive interrogatories by stating, in effect, that he had no specific facts supporting his
claims against the moving Defendant. id at 106-107. Thus, as a matter of law, Plaintiff's
responses were “factually devoid” of material facts showing that the Plaintiff was exposed to
asbestos from a product supplied or manufactured by Foster Wheeler. As a result, the burden
shifted to Plaintiff to show any evidence of exposure to an asbestos-containing product
manufactured or supplied by Foster Wheeler.

Similarly in this case, in response to specific discovery requests seeking all facts,
witnesses and documents known to Plaintiff to support his claims against Albay, Plaintiff merely
rehashes his general allegations, without identifying facts or documents to support his claims
against Albay. At no time does Plaintiff identify any specific facts or documents to show that he
was actually exposed to an asbestos-containing product disturbed or controlled by Albay at any
time in his career while employed by another contractor. Plaintiff simply lists a number of sites
and the names of some alleged co-workers (most of whom are deceased or without known
addresses), without setting forth actual information showing asbestos exposure.

As in Andrews, 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 client
specific discovery, is that Plaintiffs have no such evidence. Scheiding, supra at 79.

Under Scheiding, if a plaintiff presents no facts to support his claims, it is reasonably

inferred that such plaintiff has no facts to support his claim.

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| MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTD. The Burden Shifted To Plaintiffs To Prove Plaintiff Was Exposed To Asbestos From
Au Act Or Omission of Albay Employees

Factually-devoid discovery responses and deposition testimony are sufficient to shift the
burden on summary judgment because responses to discovery require the responding party to
answer each request completely and to the fullest extent possible. Code of Civil Procedure
§2030(f (1).

1. Plaintiff's Failure To Identify Any Facts, Living Witnesses, Or Documents To

Support His Claim That He Was Exposed To Respirable Asbestos By Albay

Construction Employees In Response To Written Discovery Requests Shifts The
Burden To Plaintiffs

A moving defendant may rely on factualiy devoid discovery responses to shift the burden
of proof pursuant to Code of Civil Procedure §437¢(p)(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’s products were present at a jobsite, the failure of
a plaintiff to provide facts and evidence of the presence of a product at a 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) 59 Cal.App.4® 64, 83.

As discussed above, plaintiff responded to Valley’s case-specific discovery by asserting
only general allegations and conclusory statements regarding Decedent’s exposure to Albay at
various refineries during his working career. Plaintiff provided no further information as to the
specific time, place, or manner in which Decedent was allegedly exposed to any asbestos
containing products or materials disturbed by Albay in his presence; Plaintiff never set forth any
admissible evidence they may have that any products or materials used by Albay, in his presence
or otherwise, contained asbestos; nor did Plaintiff set forth any documents or witnesses to
specifically support his claims against Albay. (SS Nos. 9 and 10).

Factually devoid discovery responses are sufficient to shift the burden because responses
to discovery require the responding party to answer each request completely and to the fullest
extent possible. Code of Civil Procedure §2030( (1). A plaintiff's responses to discovery

requesting the evidentiary basis for that plaintiff's claims of liability as to any defendant are
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MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTnN

presumed to be complete and exhaustive as to that issue. Scheiding, supra at 76. The Scheiding
court stated “[t]he inference [is that] since the plaintiff had a statutory duty to respond fully,” his
“factually devoid’ answers or failure to respond showed the plaintiff had no facts. Scheiding,
supra at 79. In other words, it is reasonable to infer that the responding plaintiff, in the above
scenario, has no evidence to support his or her claims. id.

Plaintiff's discovery responses are similar to if not exactly the same as the factually
devoid responses the plaintiff offered in the recent case of Andrews v. Foster Wheeler (2006) 138
Cal. App. 4" 96. In Andrews, in response to similar Special Interrogatories, plaintiff listed a
number of people who served with the plaintiff aboard a vessel, and provided a list of depositions
each of these workers had provided. /d. at 105. The plaintiff in Andrews did not state that any of
these witnesses had any information particular to the moving party Foster Wheeler. In response
to a request seeking a description of the Foster Wheeler product that allegedly exposed the
plaintiff to asbestos, plaintiff merely referred to his general allegations. In sum, the plaintiff
answered defendant-specific comprehensive interrogatories by relying solely on his allegations
showing, in effect, that he had no specific facts supporting his claims against the moving
defendant. Id at 106-107. Thus, as a matter of law, plaintiff's responses were “factually devoid”
of material facts showing that the plaintiff was exposed to asbestos from a product supplied or
manufactured by Foster Wheeler. As a result, the burden shifted to plaintiff to show any
evidence of exposure to an asbestos-containing product manufactured or supplied by Foster
Wheeler.

In this case, all available percipient witnesses identified by plaintiff through oral and
written discovery were deposed and found to have no information or knowledge that plaintiff was
caused to be exposed to asbestos as a result of work around Albay employees. (SS No. 10). All
other potential witnesses identified by plaintiff were either deceased or unable to be located
following a reasonable inquiry and diligent search to locate them. (SS No. 10.)

Thus, as 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 client specific discovery, is that Plaintiffs simply have no such evidence. Scheiding, supra at
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MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT27
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79. Thus, since Plaintiff's responses to the extensive discovery propounded seeking information
particular as to Valley is factually devoid, the burden shifts to Plaintiffs on Valley’s motion for
summary judgment as a matter of law. Id.; Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal_App. qn
962, 974.
Yv.
IN THE ALTERNATIVE, THE COURT SHOULD GRANT SUMMARY
ADJUDICATION AS TO PLAINTIFF’S CAUSES OF ACTION FOR NEGLIGENCE
AND STRICT LIABILITY AND PUNITIVE DAMAGES

A. Plaintiff's Causes of Action for Negligence Fails Because Plaintiff Has Failed To
Prove Causation.

If the Court is inclined to deny Albay’s motion for summary judgment, Albay requests
summary adjudication as to each of the causes of action alleged in Plaintiff's complaint. As
discussed in detail above, causation is an essential element of Plaintiff's causes of action, and
Plaintiff has failed to produce admissible evidence that he was exposed to respirable asbestos
from any work activity or product for which Albay is responsible. (SS Nos. 3-8.) 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.

B Plaintiff's Claim For Strict Liability Against Albay Fails As A Matter Of Law

Because Plaintiff’s Discovery Responses and Deposition Testimony Demonstrate

That Plaintiffs Lack The Basis For A Finding That Albay Manufactured, Designed,
Or Supplied Any Materials-Let Alone Asbestos-Containing Products.

Entities, such as Albay, engaged in the business of furnishing a service are not subject to
strict product liability claims. Jimenez v. Superior Court (2002) 29 Cal.Ath 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 World Travel, Inc. (1978) 88 Cal.App.3d 642.

Accordingly, a defendant can avoid liability by showing it did not manufacture or supply
the particular product alleged to have been defective and caused injury. See, DiCola v. White
Bros, Performance Prods., Inc. (2008) 158 Cal.App.4th 666, 674 (plaintiff's evidence failed to

refute defendants’ evidence alleged defective motorcycle stand did not come from defendants,
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MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTthus summary judgment in favor of the defendant was proper); Monte Vista v. Superior Court
(1991) 226 Cal.App.3d 1681.

There, the plaintiff sued for injuries from falling after grabbing on to a soap dish that
Defendant subcontractor had installed in her mass-produced home. The Court held that Willey
was not a “seller” of the soap dish within the meaning of the Restatement of Torts. Specifically,
Willey was not in the business of selling soap dishes or other fixtures. It simply purchased the
soap dish as part of its service contract to install tiles and fixtures. Thus, Willey’s job was to do
the tile work, it was not to sell a particular product. Accordingly, under Califomia law, strict
products liability was not imposed on Willey.

Similarly here, Albay’s job was to work with various materials or products, as specified
either by the construction plans, or by the general contractor at a particular site — not to sell a
product, Plaintiff's responses to Albay’s special interrogatories demonstrate plaintiff lacks the
factual basis for a finding Albay either manufactured or supplied any of the alleged materials
which caused plaintiff to be exposed to asbestos. Indeed, both in his complaint as well as in his
responses to written discovery plaintiff acknowledges Albay was a contractor, in the business of
furnishing services, and not materials. Plaintiff neither alleges, nor attempt to prove Albay acted
in any other capacity when allegedly injuring Plaintiff.

Similarly, Plaintiff's deposition testimony reveals that he has no knowledge that Albay
either manufactured or supplied any products with which he worked at any of the alleged sites.
Rather, his alleges Albay was a contractor at various refineries, when he performed work there.
Thus, Plaintiff lacks any evidence to demonstrate Albay manufactured, or supplied any materials
with which plaintiff worked during his employment ~ an essential element of plaintiffs’ strict
product liability case against Albay and thus Albay requests the court grant summary adjudication
as to Plaintiff's causes of action for negligence and strict liability. (SS Nos. 3-8.)

Cc Plaintiff's Claim For Punitive Damages Fails As A Matter Of Law Because The
Underlying Causes Of Action Fail And There Is No Evidence Albay Acted With
Oppression, Fraud Or Malice.

Plaintiff has made an additional claim for punitive damages. However, Plaintiff's lack of

any evidence as to the causes of action for negligence and strict liability defeats the claim for
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MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTna A BB WN

punitive damages under Civil Code § 3294. Furthermore, pursuant to Civil Code § 3294{a),
punitive damages require both tort action and a finding by clear and convincing

evidence of oppression, fraud or malice. Here, there is no evidence Albay acted with oppression,
fraud or malice. (SS Nos. 3-12.)

A plaintiff cannot maintain a punitive damages claim based upon alleged conduct that is
negligent or even grossly negligent. Kendall. Yacht Corp. v. United California Bank (1975) 50
Cal.App.3d 949, 958. McDonnell vy. American Trust Co. (1955) 130 Cal App.2d 296, 301.
Exemplary damages may only be pled “where it is proven by clear and convincing evidence that
the defendant has been guilty of oppression, fraud, or malice... ..” Cal.Civ.Code § 3294(a).
Section 3294(c) defines oppression, fraud, and malice as follows:(1) “Malice” means conduct
which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the rights or safety of
others.(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person's rights.(3) “Fraud” means an intentional
misrepresentation, deceit, or concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person of property or legal rights or
otherwise causing injury.

Here, Plaintiff fails to allege any facts that Albay acted with oppression, fraud,
or malice. Albay sought all facts in support of Plaintiff's contention that Albay was liable. In his
responses, Plaintiff does not provide any specific facts supporting Albay acted with oppression,
fraud or malice, and merely repeats general allegations unsupported by facts, documents or
witnesses.

Moreover, pursuant to Civil Code § 3294(a) and (b), a plaintiff cannot support a claim for
punitive damages against a corporate defendant unless the plaintiff alleges specific facts
establishing a corporate officer, director, or managing agent engaged in malicious, fraudulent or
oppressive conduct. Cal. Civ.Code. 3294{a) and (b); White v. Ulramar, Inc. (1999) 21 Cal.4th
563, 572-573. The court in /hite reasoned such limitation avoids the imposition of punitive

damages on employers who were merely negligent or reckless, and distinguishes ordinary
ALB184/1193053-1 15

MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTrespondeat superior liability from corporate liability for punitive damages. White, at 572. Here,
no facts support Albay’s corporate officers, directors or managing agents engaged in any conduct
giving rise to punitive damages. As such, Plaintiff's prayer and claim for exemplary and punitive
damages should be stricken in their entirety.
¥. CONCLUSION

For the foregoing reasons, Albay Construction Company respectfully requests that this
Court grant its motion for summary judgment. As shown above, Plaintiff testified that during the
occasions that Albay was present at his work sites he does not have any information or
knowledge whether he was caused to be exposed to respirable asbestos in any way by Albay.

Under all circumstances, Albay cannot be held liable for Plaintiff's alleged exposures.
Because no triable issues of fact exist requiring trial, Albay Construction Company is entitled to

judgment as a matter of law.

Dated: July 15, 2011 ARCHER NO’

\

Jasun C: Molinelli
Attorneys for Defendant
ALBAY CONSTRUCTION COMPANY

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MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT