Motion,Ex Parte: 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
jmolinelli@archernorris.com

ARCHER NORRIS FILED

A Professional Law Corporation Superior Court of California,
2033 North Main Street, Suite 800 County of San Francisco
PO Box 8035 JUL 21 2011
Walnut Creek, California 94596-3728 Clerk of the Court
Telephone: 925.930.6600 BY: WILLIAM TRUPEK
Facsimile: 925.930.6620 Deputy Clerk
Attorneys for Defendant

ALBAY CONSTRUCTION COMPANY
SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

CHARLES HUSBAND, ASBESTOS .

se Case No. CGC-09-275098
Plaintiff,
SEPARATE STATEMENT OF

v. UNDISPUTED MATERIAL FACTS IN

ASBESTOS DEFENDANTS (BP) ef al, SUPPORT OF MOTION FOR SUMMARY

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

Dept: 220°

Judge: Hon. Harold Kahn

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

COMES NOW ALBAY CONSTRUCTION COMPANY (“Albay”), and hereby submits

this Separate Statement of Undisputed Material Facts in Support of lis Motion for Summary

Judgment:

1. 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
‘ALB 184/1192932-1

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT1972 to 2004.

Supporting Evidence

Plaintiff's: Answers to Interrogatories, Set One,
attached to the Index of Exhibits as Exhibit “A.”

2. Plaintiffhas sued Albay, alleging they were
a contractor working at various refineries
during the time he also worked there.

Supporting Evidence

Plaintiff's Answers to Interrogatories, Set One,
attached to the Index of Exhibits as Exhibit “A.”

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, attached
to the Index of Exhibits as Exhibit “B.”

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. v. Superior Court
(1980) 27 Cal.3d 465, 468.

5. Plaintiff testified that he recalis 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, attached

ALB184/1192932-1

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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTto the Index of Exhibits as Exhibit “B.

6. Plaintiff testified that he is unaware if any
of the pipe materials Albay was using
contained asbestos and nobody toid 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 “B.”

7. 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.

Supporting Evidence

Deposition of Plaintiff at pp. 272 - 273, attached
to the Index of Exhibits as Exhibit “B.”’

8. 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 does not know if the Albay
employees were working with asbestos
containing products or materials.

Supporting Evidence

Deposition of Plaintiff at pp. 276 - 277, attached
to the Index of Exhibits as Exhibit “B.”

9. 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

ALB184/1192932-1

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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTIGN FOR SUMMARY JUDGMENT|

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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.

Supporting Evidence

Albay’s Special Interrogatories, Request for
Production of Documents, Request for
Admissions, and Form Interrogatories,
propounded on Plaintiff, attached to the index
of Exhibits collectively as Exhibit “C.”

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
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 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

“ALB184/1192932-1

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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTec Oo YN DH RB WN =

RN NY NN N NY Be Se Be Be eB Be es eB eB ke
A A BY YN =F SFO we IU DHA F WN S&S DS

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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.

11. Albay did not cause or contribute, in any
way, either directly or indirectly, plaintiff to be
exposed to asbestos during his 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 Production of
Documents and Requests for Admissions to
Plaintiff; attached to the Index of Exhibits
collectively as Exhibit “D.”

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, 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 tothe Index of Exhibits
collectively as Exhibit “D.”

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.

UNDISPUTED MATERIAL FACT

PLAINTIFF’S RESPONSE

13. Causation is an essential element of all of

ALB184/1192932-1

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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT10
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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 Production of
Documents and Requests for Admissions to
Plaintiff, attached to the Index of Exhibits
collectively as Exhibit “D.”

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.”

ISSUE NO. 3: SUMMARY ADJUDICATION AS TO PLAENTIFF’S CAUSE OF ACTION
FOR STRICT LIABILITY SHOULD BE GRANTED BECAUSE PLAINTIFF IS UNABLE
TO ESTABLISH THE REQUISITE ELEMENTS OF EXPOSURE/CAUSATION.

UNDISPUTED MATERIAL FACT PLAINTIFF’S RESPONSE

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 Index of Exhibits as Exhibit “B.”
Plaintiff's responses to Albay’s Special
interrogatories, Requests for Production of

ALB184/1192932-1 6

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTOo Oo NY DHA FF WwW YY

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Documents and Requests for Admissions to
Plaintiff, attached to the Index of Exhibits
collectively as Exhibit “D.”

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 World
Travel, Inc. (1978) 88 Cal.App.3d 642; DiCola
v, White Bros. Performance Prods., Inc. (2008)
58 Cal.App.4th 666, 674; Monte Vista v.
Superior Court (1991) 226 Cal.App.3d 1681.

‘Supporting Evidence

6. 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.

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.”

Jimenez v. Superior Court (2002) 29 Cal Ath
473, 479; Pierson v. Sharp Memorial Hospital,
Tac. (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.

at

ut

ALBI84/1192932-1 7

SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTa

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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.

UNDISPUTED MATERIAL FACT

PLAINTIFF'S RESPONSE

17. Any claim for punitive damages requires
“clear and convincing” evidence a defendant is
guilty of oppression, fraud or malice.

Supporting Evidence

Cal. Civil Code §3294. White v. Ultramar, ine.
(1999) 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; McDonnell v. American Trust Co. (1955)
130 Cal.App.2d 296, 301.

Deposition of Plaintiff at pp. 256 - 277, attached
to the Index of Exhibits as Exhibit “B.”
Plaintiff's responses to Albay’s Special
Inierrogatories, Requests for Production of
Documents and Requests for Admissions to
Plaintiff, attached to the Index of Exhibits
collectively as Exhibit “D.”

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 “D.”

Cal. Civil Code § 3294. White v. Ultramar,
Inc. (1999) 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; McDonnell v. American Trust Co. (1955)
130 Cal.App.2d 296, 301

ALB184/1192932-1

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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTDated: July 15, 2011

ALB184/1192932-i

Attorneys for Defendant
ALBAY CONSTRUCTION COMPANY

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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT