Preview
1 JAMES J. YUKEVICH (SBN 159896)
jyukevich@yukelaw.com
2 RAYMOND H. HUA (SBN 222466)
rhua@yukelaw.com
3 YUKEVICH | CAVANAUGH
355 S. Grand Avenue, 15th Floor
4 Los Angeles, California 90071-1560
Telephone: (213) 362-7777
5 Facsimile: (213) 362-7788
Email: eservice@yukelaw.com
6
Attorneys for Defendant INSIGHT
7 ENVIRONMENTAL, INC.
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SANTA BARBARA, ANACAPA BRANCH
10
11
KHP IV SANTA BARBARA, LLC, CASE NO. 21CV00676
12
Plaintiff, SEPARATE STATEMENT OF
13 UNDISPUTED MATERIAL FACTS IN
vs. SUPPORT OF DEFENDANT INSIGHT
14 ENVIRONMENTAL, INC.’S MOTION
YOUNG BROTHERS CONSTRUCTION FOR SUMMARY JUDGMENT OR, IN
15 COMPANY DBA YOUNG COMPANY; and THE ALTERNATIVE, FOR SUMMARY
DOES 1 through 25, ADJUDICATION
16
Defendant. [Filed Concurrently with Motion for Summary
17 Judgment/Adjudication; Compendium of
Exhibits; Declaration of Eric M. Sowatsky;
18 and [Proposed] Order]
19 Date: March 8, 2023
Time: 10:00 a.m.
20 Dept.: SB3
21 Assigned to the Hon. Thomas P. Anderle,
Dept. SB3
22
Action Filed: February 18, 2021
23 Trial Date: April 5, 2023
24
25 Pursuant to Code of Civil Procedure section 437c(b)(1) and California Rule of Court, rule
26 3.1350(c)-(d), Defendant INSIGHT ENVIRONMENTAL, INC. (hereinafter, “Insight”) hereby
27 submits its Separate Statement of Undisputed Material Facts in support of its concurrently-filed
28 Motion for Summary Judgment or, in the Alternative, for Summary Adjudication as to Plaintiff
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 KHP IV SANTA BARBARA, LLC’s (hereinafter “Plaintiff” or “KHP”) Second Amended
2 Complaint (“SAC”) and all causes of action against Insight therein.
3 ISSUE ONE:
4 THERE IS NO TRIABLE ISSUE WITH RESPECT TO PLAINTIFF’S SECOND CAUSE
5 OF ACTION FOR NEGLIGENCE BECAUSE PLAINTIFF CANNOT DEMONSTRATE
6 THAT INSIGHT HAD ANY DUTY UNDER THE CIRCUMSTANCES OR THAT IT
7 BREACHED ANY ALLEGED DUTY TO PLAINTIFF
8
No. Insight’s Undisputed Material Facts and Opposing Party's Response
9 Supporting Evidence: and Supporting Evidence:
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10 1. Plaintiff is the owner of the subject Hotel, which is
located at 1111. E. Cabrilla Boulevard, Santa
LOS ANGELES, CALIFORNIA 90071-1560
11 Barbara, California 93103 (hereinafter, the
“Hotel”).
CAVANAUGH
Telephone (213) 362-7777
12
Facsimile (213) 362-7788
Supporting Evidence:
13
Exhibit 1 – Plaintiff’s SAC ¶ 5.
14
2. Defendant YOUNG BROTHERS
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15
YUKEVICH
CONSTRUCTION COMPANY dba YOUNG
CONSTRUCTION (hereinafter “Young Brothers”)
16 is a licensed general contractor based in Santa
Barbara, California.
17
Supporting Evidence:
18
Exhibit 1 – Plaintiff’s SAC ¶¶ 2, 5.
19
Exhibit 2 - Plaintiff’s Responses to Young
20 Brothers’ Special Interrogatories, Set One,
No. 9.
21
Exhibit 3 - Young Brothers’ Responses to
22 Plaintiff’s Form Interrogatories, Set One,
Nos. 303.1 and 303.7.
23
Exhibit 4 – Depo. of Ted Bruckner at 44:19-
24 24.
25 3. Insight is an environmental consulting firm based in
Carpinteria, California, which specializes in
26 surveying, testing, and the detection of hazardous
and potentially hazardous materials, including
27 mold, lead, bacteria, radon, asbestos, and asbestos
containing materials (“ACMs”).
28
2
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
Supporting Evidence:
3
Exhibit 5 – Decl. of Benjamin Blaker ¶ 2.
4
Exhibit 6 – Depo. of Benjamin Blaker at
5 30:13-31:7, 78:23-79:9.
6 Exhibit 7 – Depo. of Gavin Wright at 30:5-
9.
7
4. Insight collects samples and then sends them to a
8 third-party laboratory to be tested.
9 Supporting Evidence:
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10 Exhibit 6 – Depo. of Benjamin Blaker at
30:13-31:7, 42:13-43:5, 47:2-3.
LOS ANGELES, CALIFORNIA 90071-1560
11
Exhibit 7 – Depo. of Gavin Wright at
CAVANAUGH
Telephone (213) 362-7777
12 126:12-19.
Facsimile (213) 362-7788
13 5. On or about September 13, 2019, Plaintiff hired
Young Brothers to perform general contracting and
14 construction services in connection with the
renovation of the Hotel (hereinafter, the “Project”).
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15
YUKEVICH
Supporting Evidence:
16
Exhibit 1 – Plaintiff’s SAC ¶ 5.
17
Exhibit 2 - Plaintiff’s Responses to Young
18 Brothers’ Special Interrogatories, Set One,
No. 9.
19
6. On or about September 18, 2019, after work had
20 already begun at the hotel, Plaintiff hired Insight on
a “rush” basis, in pertinent part, to perform limited
21 sampling at the Hotel.
22 Supporting Evidence:
23 Exhibit 5 – Decl. of Benjamin Blaker ¶ 3.
24 Exhibit 6 – Depo. of Benjamin Blaker at
24:11-25:21, 26:2-9, 26:16-28:23, 29:7-9,
25 30:5-12, 34:6-22, 35:7-11, 64:3-5, 71:7-11,
95:9-11, 109:11-110:9.
26
Exhibit 8 – Limited Asbestos Survey
27 Agreement.
28
3
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
3
Exhibit 9 - Email from Dane Patunoff to
4 Insight, dated September 18, 2019.
5 Exhibit 10 – Depo. of Dane Patunoff at
43:19-44:11.
6
7. Insight was retained to perform sampling on an as-
7 needed basis, in specific areas of the Hotel as
directed by Plaintiff.
8
Supporting Evidence:
9
Exhibit 5 – Decl. of Benjamin Blaker ¶ 3.
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10
Exhibit 6 – Depo. of Benjamin Blaker at
LOS ANGELES, CALIFORNIA 90071-1560
11 25:15-21, 26:16-28:23, 36:13-38:2, 38:8-15,
41:8-20, 47:4-12, 47:21-52:10, 56:23-57:17,
CAVANAUGH
Telephone (213) 362-7777
12 64:6-25, 109:11-110:9.
Facsimile (213) 362-7788
13 Exhibit 11 - Insight’s Preliminary Asbestos
Survey, dated September 30, 2019.
14
Exhibit 12 – Decl. of Robert Augspurger ¶
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15 5.
YUKEVICH
16 8. On September 23, 2019, Insight performed its first
limited preliminary asbestos survey at the Hotel, in
17 part, to determine the presence or absence of ACMs
at certain specified parts of the Hotel, including the
18 lobby, executive offices, the hallway to the bar, the
bar area, the pool court by the bar, and the Hotel
19 restaurant.
20 Supporting Evidence:
21 Exhibit 6 – Depo. of Benjamin Blaker at
47:21-50:25, 53:16-22, 152:10-12.
22
Exhibit 11 - Insight’s Preliminary Asbestos
23 Survey, dated September 30, 2019.
24 9. Insight had recommended testing the floors and
popcorn ceiling in these areas of Hotel during its
25 September 23, 2019 survey, but Plaintiff did not
want the floors or ceiling tested at that time.
26
Supporting Evidence:
27
Exhibit 6 – Depo. of Benjamin Blaker at
28 50:19-25, 51:21-52:7, 71:12-17, 109:11-
4
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
110:3, 152:13-18.
3
Exhibit 11 - Insight’s Preliminary Asbestos
4 Survey, dated September 30, 2019.
5 10. The report of Insight’s September 23, 2019 survey,
dated September 30, 2019, indicated the presence of
6 ACMs in certain walls of the Hotel’s restaurant.
7 Supporting Evidence:
8 Exhibit 6 – Depo. of Benjamin Blaker at
47:21-50:13, 68:2-10.
9
Exhibit 11 - Insight’s Preliminary Asbestos
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10 Survey, dated September 30, 2019.
LOS ANGELES, CALIFORNIA 90071-1560
11 11. On October 3, 2019, Mike Evans of Young
Brothers requested additional ACM testing because
CAVANAUGH
Telephone (213) 362-7777
12
Facsimile (213) 362-7788
“the first week of demo has exposed materials that
were not previously tested.”
13
Supporting Evidence:
14
Exhibit 4 – Depo. of Ted Bruckner at 91:15-
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15
YUKEVICH
92:20.
16 Exhibit 10 – Depo. of Dane Patunoff at
76:2-77:8.
17
Exhibit 13 - Email Chain between
18 employees of Plaintiff and Young Brothers,
dated October 3 and 4, 2019.
19
12. On October 3, 2019, as requested, Insight came
20 back and performed another limited preliminary
asbestos survey, specifically to test for the presence
21 of ACMs in acoustic ceiling materials in specified
areas of the Hotel, including in the first floor
22 interior walls and in the doorway to the bar hall.
23 Supporting Evidence:
24 Exhibit 6 – Depo. of Benjamin Blaker at
50:1-18, 74:18-75:13, 76:6-77:1, 78:17-
25 79:9.
26 Exhibit 10 – Depo. of Dane Patunoff at
76:2-77:8, 90:15-91:3.
27
Exhibit 13 - Email Chain between
28 employees of Plaintiff and Young Brothers,
5
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
dated October 3 and 4, 2019.
3
Exhibit 14 - Insight’s Preliminary Asbestos
4 Survey, dated October 7, 2019.
5 13. Insight’s October 3, 2019 sampling revealed the
presence of ACMs in the Hotel’s acoustic ceiling
6 materials and stucco walls.
7 Supporting Evidence:
8 Exhibit 6 – Depo. of Benjamin Blaker at
50:1-18, 74:18-75:13, 76:6-77:1, 78:17-
9 79:9.
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10 Exhibit 10 – Depo. of Dane Patunoff at
76:2-77:8, 90:15-91:3.
LOS ANGELES, CALIFORNIA 90071-1560
11
Exhibit 14 - Insight’s Preliminary Asbestos
CAVANAUGH
Telephone (213) 362-7777
12 Survey, dated October 7, 2019.
Facsimile (213) 362-7788
13 14. The sampling requested of Insight on October 3,
2019 did not include the El Cantina Ballroom floor.
14
Supporting Evidence:
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15
YUKEVICH
Exhibit 6 – Depo. of Benjamin Blaker at
16 50:1-18, 74:18-75:13, 77:17-22.
17 Exhibit 10 – Depo. of Dane Patunoff at
91:20-92:5.
18
Exhibit 12 – Decl. of Robert Augspurger ¶
19 9.
20 Exhibit 14 - Insight’s Preliminary Asbestos
Survey, dated October 7, 2019.
21
15. On October 4, 2019 at 11:37 a.m., Insight emailed
22 the preliminary results of its October 3, 2019
sampling to Plaintiff.
23
Supporting Evidence:
24
Exhibit 10 – Depo. of Dane Patunoff at
25 76:2-77:8, 90:15-91:3.
26 Exhibit 13 - Email Chain between
employees of Plaintiff and Young Brothers,
27 dated October 3 and 4, 2019.
28
6
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
3
Exhibit 15 - Email Chain between
4 employees of Plaintiff and Young Brothers,
dated October 4-7, 2019.
5
16. On October 4, 2019 at 12:11 p.m., Plaintiff’s
6 employee, Dane Patunoff, forwarded Insight’s
results to Ted Bruckner, Brian Szymczak, and Mr.
7 Evans of Young Brothers.
8 Supporting Evidence:
9 Exhibit 10 – Depo. of Dane Patunoff at
76:2-77:8, 90:15-91:3.
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10
Exhibit 13 - Email Chain between
LOS ANGELES, CALIFORNIA 90071-1560
11 employees of Plaintiff and Young Brothers,
dated October 3 and 4, 2019.
CAVANAUGH
Telephone (213) 362-7777
12
Facsimile (213) 362-7788
Exhibit 15 - Email Chain between
13 employees of Plaintiff and Young Brothers,
dated October 4-7, 2019.
14
17. On October 4, 2019 at 12:23 p.m., Mr. Patunoff
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15
YUKEVICH
emailed Mr. Szymczak and inquired as to whether
the subfloor in El Cantina Ballroom had been tested
16 because he did not see any indication in the prior
test results he received that the ballroom subfloor
17 had been tested.
18 Supporting Evidence:
19 Exhibit 10 – Depo. of Dane Patunoff at
76:2-77:8, 88:7-89:20.
20
Exhibit 13 - Email Chain between
21 employees of Plaintiff and Young Brothers,
dated October 3 and 4, 2019.
22
Exhibit 15 - Email Chain between
23 employees of Plaintiff and Young Brothers,
dated October 4-7, 2019.
24
18. On October 4, 2019 at 12:33 p.m., Mr. Szymczak
25 responded to Mr. Patunoff email, stating, “El
Cantina subfloor is good no need to test.”
26
Supporting Evidence:
27
Exhibit 10 – Depo. of Dane Patunoff at
28
7
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
89:21-90:14.
3
Exhibit 13 - Email Chain between
4 employees of Plaintiff and Young Brothers,
dated October 3 and 4, 2019.
5
Exhibit 16 – Depo. of Brian Szymczak at
6 42:19-43:23, 44:1-22.
7 19. Due to Mr. Szymczak’s representation, Mr.
Patunoff then allegedly requested that Young
8 Brothers instruct its subcontractor, Michael
Ramirez of AC Ramirez, to test sand the El Cantina
9 Ballroom floor.
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10 Supporting Evidence:
LOS ANGELES, CALIFORNIA 90071-1560
11 Exhibit 4 – Depo. of Ted Bruckner at 75:9-
15.
CAVANAUGH
Telephone (213) 362-7777
12
Facsimile (213) 362-7788
Exhibit 10 – Depo. of Dane Patunoff at
13 76:6-77:8, 88:7-91:3, 92:23-93:2.
14 Exhibit 13 - Email Chain between
employees of Plaintiff and Young Brothers,
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15 dated October 3 and 4, 2019
YUKEVICH
16 Exhibit 16 – Depo. of Brian Szymczak at
48:7-8, 53:7-16, 59:19-60:4, 99:24-100:4.
17
20. On October 10, 2019, Mr. Ramirez allegedly
18 sanded a portion of the El Cantina Ballroom
flooring before it could be sampled or tested for
19 ACMs.
20 Supporting Evidence:
21 Exhibit 1 – Plaintiff’s SAC ¶ 22.
22 Exhibit 4 – Depo. of Ted Bruckner at 75:9-
15.
23
Exhibit 10 – Depo. of Dane Patunoff at
24 91:20-92:5.
25 Exhibit 16 – Depo. of Brian Szymczak at
53:7-16, 59:19-60:4, 98:5-10.
26
21. On October 11, 2019, Insight came back and
27 performed sampling in the El Cantina Ballroom
area for the first time.
28
8
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
Supporting Evidence:
3
Exhibit 1 – Plaintiff’s SAC ¶ 23.
4
Exhibit 6 – Depo. of Benjamin Blaker at
5 84:21-85:3, 89:2-10.
6 Exhibit 7 – Depo. of Gavin Wright at 78:19-
79:18.
7
Exhibit 10 – Depo. of Dane Patunoff at
8 91:20-92:5.
9 Exhibit 12 – Decl. of Robert Augspurger ¶
9.
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10
Exhibit 17 - Insight’s Preliminary Asbestos
LOS ANGELES, CALIFORNIA 90071-1560
11 Survey, dated October 22, 2019.
CAVANAUGH
Telephone (213) 362-7777
12 22. The sampling performed by Insight on October 11,
Facsimile (213) 362-7788
2019 revealed that the sheet vinyl flooring in the El
13 Cantina Ballroom area contained ACMs which may
have been disturbed by the sanding.
14
Supporting Evidence:
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15
YUKEVICH
Exhibit 10 – Depo. of Dane Patunoff at
16 91:20-92:22.
17 Exhibit 17 - Insight’s Preliminary Asbestos
Survey, dated October 22, 2019.
18
23. Plaintiff allegedly shut down the Project so that
19 additional ACM testing, containment, and
abatement measures could be taken at the Hotel.
20
Supporting Evidence:
21
Exhibit 1 – Plaintiff’s SAC ¶¶ 26, 57.
22
Exhibit 2 - Plaintiff’s Responses to Young
23 Brothers’ Special Interrogatories, Set One,
No. 9.
24
Exhibit 4 – Depo. of Ted Bruckner at
25 164:17-24.
26 Exhibit 10 – Depo. of Dane Patunoff at
102:10-104:15.
27
28
9
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
24. Plaintiff’s SAC, filed on August 15, 2022, alleges
3 two causes of action against Insight, for
Negligence, and for Negligent Misrepresentation.
4
Supporting Evidence:
5
Exhibit 1 – Plaintiff’s SAC ¶¶ 39-59.
6
25. Insight’s contract with Plaintiff did not confer
7 discretion or require Insight to choose which areas
of the Hotel to be sampled or tested.
8
Supporting Evidence:
9
Exhibit 8 – Limited Asbestos Survey
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10 Agreement.
LOS ANGELES, CALIFORNIA 90071-1560
11 26. Insight simply collected samples in areas specified
by Plaintiff and sent the samples for lab testing.
CAVANAUGH
Telephone (213) 362-7777
12
Facsimile (213) 362-7788
Supporting Evidence:
13
Exhibit 5 – Decl. of Benjamin Blaker ¶ 3.
14
Exhibit 6 – Depo. of Benjamin Blaker at
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YUKEVICH
25:15-21, 26:16-28:23, 36:13-38:2, 38:8-15,
41:8-20, 47:4-12, 47:21-52:10, 56:23-57:17,
16 64:6-25, 109:11-110:9.
17 Exhibit 8 – Limited Asbestos Survey
Agreement.
18
Exhibit 12 – Decl. of Robert Augspurger ¶
19 5.
20 27. Insight did not collect any samples of the El
Cantina Ballroom floor until October 11, 2019,
21 after the subfloor had already been sanded by
Young Brothers and/or its subcontractor as,
22 Plaintiff claims.
23 Supporting Evidence:
24 Exhibit 5 – Decl. of Benjamin Blaker ¶ 8.
25 Exhibit 6 – Depo. of Benjamin Blaker at
152:10-18.
26
Exhibit 11 - Insight’s Preliminary Asbestos
27 Survey, dated September 30, 2019
28 Exhibit 12 – Decl. of Robert Augspurger ¶
10
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
9.
3
Exhibit 14 - Insight’s Preliminary Asbestos
4 Survey, dated October 7, 2019
5 28. Only three Insight employees and/or representatives
performed work at the Subject Property for Plaintiff
6 in connection with the Project: Benjamin Blaker;
Robert Augspurger; and Gavin Wright.
7
Supporting Evidence:
8
Exhibit 5 – Decl. of Benjamin Blaker ¶ 4.
9
Exhibit 12 – Decl. of Robert Augspurger ¶
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10 8.
LOS ANGELES, CALIFORNIA 90071-1560
11 29. Insight’s owner, Benjamin Blaker, did not represent
to anyone, including any persons affiliated with
CAVANAUGH
Telephone (213) 362-7777
12
Facsimile (213) 362-7788
Plaintiff or Young Brothers Construction Company,
that the flooring of the El Cantina Ballroom did not
13 need to be tested for ACMs, or that it could it could
be sanded prior to any ACM testing or before the
14 completion of any ACM testing.
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15
YUKEVICH
Supporting Evidence:
16 Exhibit 5 – Decl. of Benjamin Blaker ¶¶ 5-
6.
17
Exhibit 6 – Depo. of Benjamin Blaker at
18 119:14-121:17.
19 30. Mr. Blaker is not aware of any Insight employee or
representative making any such representation that
20 the El Cantina Ballroom subfloor was “good to go”
for sanding, or that there was “no need to test” the
21 El Cantina Ballroom flooring or subfloor prior to
obtaining test results.
22
Supporting Evidence:
23
Exhibit 5 – Decl. of Benjamin Blaker ¶¶ 5-
24 6.
25 Exhibit 6 – Depo. of Benjamin Blaker at
119:14-121:17.
26
31. Mr. Blaker was not even at the Hotel on October 4,
27 2019, the date that these purported
28
11
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
misrepresentations were allegedly made to Young
3 Brothers.
4 Supporting Evidence:
5 Exhibit 5 – Decl. of Benjamin Blaker ¶ 7.
6 Exhibit 6 – Depo. of Benjamin Blaker at
119:14-121:17.
7
Exhibit 19 - Plaintiff’s Responses to
8 Insight’s Special Interrogatories, Set One,
Nos. 3 and 5.
9
32. Insight’s CDHP Sampling Technician, Robert
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10 Augspurger, was also not at the Hotel on October 4,
2019.
LOS ANGELES, CALIFORNIA 90071-1560
11
Supporting Evidence:
CAVANAUGH
Telephone (213) 362-7777
12
Facsimile (213) 362-7788
Exhibit 12 – Decl. of Robert Augspurger ¶¶
13 5-9.
14 Exhibit 19 - Plaintiff’s Responses to
Insight’s Special Interrogatories, Set One,
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15 Nos. 3 and 5.
YUKEVICH
16 33. Mr. Augspurger did not tell anyone, including any
persons affiliated with KHP or Young Brothers
17 Construction Company, that the flooring of the El
Cantina Ballroom did not need to be tested for
18 ACMs, or that it could it could be sanded prior to
any ACM testing or before the completion of any
19 ACM testing.
20 Supporting Evidence:
21 Exhibit 12 – Decl. of Robert Augspurger ¶¶
5-9.
22
34. Mr. Augspurger did not believe it was his or
23 Insight’s job to make recommendations as to
whether or not specific areas of the Hotel were
24 cleared for sanding, demolition, or any other
renovation task associated with the Project.
25
Supporting Evidence:
26
Exhibit 12 – Decl. of Robert Augspurger ¶¶
27 5-9.
28
12
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
35. Insight site surveillance technician, Gavin Wright,
3 did not have any conversations with anybody at
Young Brothers telling them that the El Cantina
4 Ballroom subfloor did not need to be tested, and he
is not aware of anyone at Insight making any such
5 representations.
6 Supporting Evidence:
7 Exhibit 7 – Depo. of Gavin Wright at 16:23-
17:13, 59:8-15, 125:7-126:11, 132:5-24,
8 139:24-140:8.
9 36. Young Brothers has expressly acknowledged that
Gavin Wright was not the individual that allegedly
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10 made these purported representations alleged of in
Plaintiff’s SAC.
LOS ANGELES, CALIFORNIA 90071-1560
11
Supporting Evidence:
CAVANAUGH
Telephone (213) 362-7777
12
Facsimile (213) 362-7788
Exhibit 16 – Depo. of Brian Szymczak at
13 31:18-34:2, 66:18-67:11, 116:13-21.
14 37. On October 3, 2019, Mr. Szymczak knew that that
the flooring in the El Cantina Ballroom was an area
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15
YUKEVICH
of concern for potential ACMs.
16 Supporting Evidence:
17 Exhibit 16 – Depo. of Brian Szymczak at
28:13-30:14, 35:16-36:7.
18
38. Although he was mistaken as to what was actually
19 sampled, Mr. Szymczak claims that on October 3,
2019 he saw someone take a sample of the El
20 Cantina Ballroom subfloor.
21 Supporting Evidence:
22 Exhibit 14 - Insight’s Preliminary Asbestos
Survey, dated October 7, 2019.
23
Exhibit 16 – Depo. of Brian Szymczak at
24 27:3-12, 31:18-25, 36:1-7 39:2-5.
25 39. Mr. Szymczak understood that the samples he
allegedly saw taken would be sent to a lab for ACM
26 testing.
27 Supporting Evidence:
28 Exhibit 16 – Depo. of Brian Szymczak at
13
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT
ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1 No. Insight’s Undisputed Material Facts and Opposing Party's Response
Supporting Evidence: and Supporting Evidence:
2
36:4-7, 40:13-18, 45:2-5.
3
40. Mr. Szymczak understood that it would take at least
4 a few days for the lab to test the samples and return
its results.
5
Supporting Evidence:
6
Exhibit 16 – Depo. of Brian Szymczak at
7 40:19-22.
8 41. Mr. Szymczak believed that the El Cantina
Ballroom flooring should not be sanded before the
9 test results came back.
355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR
10 Supporting Evidence:
LOS ANGELES, CALIFORNIA 90071-1560
11 Exhibit 16 – Depo. of Brian Szymczak at
34:9-35:4, 40:23-41:6.
CAVANAUGH
Telephone (213) 362-7777
12
Facsimile (213) 362-7788
42. Mr. Szymczak knew on October 4, 2019 that
13 Plaintiff still considered the El Cantina Ballroom
subfloor to be an area of concern for potential
14 ACMs.
|
15
YUKEVICH
Supporting Evidence:
Preview
1 JAMES J. YUKEVICH (SBN 159896) jyukevich@yukelaw.com 2 RAYMOND H. HUA (SBN 222466) rhua@yukelaw.com 3 YUKEVICH | CAVANAUGH 355 S. Grand Avenue, 15th Floor 4 Los Angeles, California 90071-1560 Telephone: (213) 362-7777 5 Facsimile: (213) 362-7788 Email: eservice@yukelaw.com 6 Attorneys for Defendant INSIGHT 7 ENVIRONMENTAL, INC. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SANTA BARBARA, ANACAPA BRANCH 10 11 KHP IV SANTA BARBARA, LLC, CASE NO. 21CV00676 12 Plaintiff, SEPARATE STATEMENT OF 13 UNDISPUTED MATERIAL FACTS IN vs. SUPPORT OF DEFENDANT INSIGHT 14 ENVIRONMENTAL, INC.’S MOTION YOUNG BROTHERS CONSTRUCTION FOR SUMMARY JUDGMENT OR, IN 15 COMPANY DBA YOUNG COMPANY; and THE ALTERNATIVE, FOR SUMMARY DOES 1 through 25, ADJUDICATION 16 Defendant. [Filed Concurrently with Motion for Summary 17 Judgment/Adjudication; Compendium of Exhibits; Declaration of Eric M. Sowatsky; 18 and [Proposed] Order] 19 Date: March 8, 2023 Time: 10:00 a.m. 20 Dept.: SB3 21 Assigned to the Hon. Thomas P. Anderle, Dept. SB3 22 Action Filed: February 18, 2021 23 Trial Date: April 5, 2023 24 25 Pursuant to Code of Civil Procedure section 437c(b)(1) and California Rule of Court, rule 26 3.1350(c)-(d), Defendant INSIGHT ENVIRONMENTAL, INC. (hereinafter, “Insight”) hereby 27 submits its Separate Statement of Undisputed Material Facts in support of its concurrently-filed 28 Motion for Summary Judgment or, in the Alternative, for Summary Adjudication as to Plaintiff SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 KHP IV SANTA BARBARA, LLC’s (hereinafter “Plaintiff” or “KHP”) Second Amended 2 Complaint (“SAC”) and all causes of action against Insight therein. 3 ISSUE ONE: 4 THERE IS NO TRIABLE ISSUE WITH RESPECT TO PLAINTIFF’S SECOND CAUSE 5 OF ACTION FOR NEGLIGENCE BECAUSE PLAINTIFF CANNOT DEMONSTRATE 6 THAT INSIGHT HAD ANY DUTY UNDER THE CIRCUMSTANCES OR THAT IT 7 BREACHED ANY ALLEGED DUTY TO PLAINTIFF 8 No. Insight’s Undisputed Material Facts and Opposing Party's Response 9 Supporting Evidence: and Supporting Evidence: 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 1. Plaintiff is the owner of the subject Hotel, which is located at 1111. E. Cabrilla Boulevard, Santa LOS ANGELES, CALIFORNIA 90071-1560 11 Barbara, California 93103 (hereinafter, the “Hotel”). CAVANAUGH Telephone (213) 362-7777 12 Facsimile (213) 362-7788 Supporting Evidence: 13 Exhibit 1 – Plaintiff’s SAC ¶ 5. 14 2. Defendant YOUNG BROTHERS | 15 YUKEVICH CONSTRUCTION COMPANY dba YOUNG CONSTRUCTION (hereinafter “Young Brothers”) 16 is a licensed general contractor based in Santa Barbara, California. 17 Supporting Evidence: 18 Exhibit 1 – Plaintiff’s SAC ¶¶ 2, 5. 19 Exhibit 2 - Plaintiff’s Responses to Young 20 Brothers’ Special Interrogatories, Set One, No. 9. 21 Exhibit 3 - Young Brothers’ Responses to 22 Plaintiff’s Form Interrogatories, Set One, Nos. 303.1 and 303.7. 23 Exhibit 4 – Depo. of Ted Bruckner at 44:19- 24 24. 25 3. Insight is an environmental consulting firm based in Carpinteria, California, which specializes in 26 surveying, testing, and the detection of hazardous and potentially hazardous materials, including 27 mold, lead, bacteria, radon, asbestos, and asbestos containing materials (“ACMs”). 28 2 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 Supporting Evidence: 3 Exhibit 5 – Decl. of Benjamin Blaker ¶ 2. 4 Exhibit 6 – Depo. of Benjamin Blaker at 5 30:13-31:7, 78:23-79:9. 6 Exhibit 7 – Depo. of Gavin Wright at 30:5- 9. 7 4. Insight collects samples and then sends them to a 8 third-party laboratory to be tested. 9 Supporting Evidence: 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 Exhibit 6 – Depo. of Benjamin Blaker at 30:13-31:7, 42:13-43:5, 47:2-3. LOS ANGELES, CALIFORNIA 90071-1560 11 Exhibit 7 – Depo. of Gavin Wright at CAVANAUGH Telephone (213) 362-7777 12 126:12-19. Facsimile (213) 362-7788 13 5. On or about September 13, 2019, Plaintiff hired Young Brothers to perform general contracting and 14 construction services in connection with the renovation of the Hotel (hereinafter, the “Project”). | 15 YUKEVICH Supporting Evidence: 16 Exhibit 1 – Plaintiff’s SAC ¶ 5. 17 Exhibit 2 - Plaintiff’s Responses to Young 18 Brothers’ Special Interrogatories, Set One, No. 9. 19 6. On or about September 18, 2019, after work had 20 already begun at the hotel, Plaintiff hired Insight on a “rush” basis, in pertinent part, to perform limited 21 sampling at the Hotel. 22 Supporting Evidence: 23 Exhibit 5 – Decl. of Benjamin Blaker ¶ 3. 24 Exhibit 6 – Depo. of Benjamin Blaker at 24:11-25:21, 26:2-9, 26:16-28:23, 29:7-9, 25 30:5-12, 34:6-22, 35:7-11, 64:3-5, 71:7-11, 95:9-11, 109:11-110:9. 26 Exhibit 8 – Limited Asbestos Survey 27 Agreement. 28 3 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 3 Exhibit 9 - Email from Dane Patunoff to 4 Insight, dated September 18, 2019. 5 Exhibit 10 – Depo. of Dane Patunoff at 43:19-44:11. 6 7. Insight was retained to perform sampling on an as- 7 needed basis, in specific areas of the Hotel as directed by Plaintiff. 8 Supporting Evidence: 9 Exhibit 5 – Decl. of Benjamin Blaker ¶ 3. 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 Exhibit 6 – Depo. of Benjamin Blaker at LOS ANGELES, CALIFORNIA 90071-1560 11 25:15-21, 26:16-28:23, 36:13-38:2, 38:8-15, 41:8-20, 47:4-12, 47:21-52:10, 56:23-57:17, CAVANAUGH Telephone (213) 362-7777 12 64:6-25, 109:11-110:9. Facsimile (213) 362-7788 13 Exhibit 11 - Insight’s Preliminary Asbestos Survey, dated September 30, 2019. 14 Exhibit 12 – Decl. of Robert Augspurger ¶ | 15 5. YUKEVICH 16 8. On September 23, 2019, Insight performed its first limited preliminary asbestos survey at the Hotel, in 17 part, to determine the presence or absence of ACMs at certain specified parts of the Hotel, including the 18 lobby, executive offices, the hallway to the bar, the bar area, the pool court by the bar, and the Hotel 19 restaurant. 20 Supporting Evidence: 21 Exhibit 6 – Depo. of Benjamin Blaker at 47:21-50:25, 53:16-22, 152:10-12. 22 Exhibit 11 - Insight’s Preliminary Asbestos 23 Survey, dated September 30, 2019. 24 9. Insight had recommended testing the floors and popcorn ceiling in these areas of Hotel during its 25 September 23, 2019 survey, but Plaintiff did not want the floors or ceiling tested at that time. 26 Supporting Evidence: 27 Exhibit 6 – Depo. of Benjamin Blaker at 28 50:19-25, 51:21-52:7, 71:12-17, 109:11- 4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 110:3, 152:13-18. 3 Exhibit 11 - Insight’s Preliminary Asbestos 4 Survey, dated September 30, 2019. 5 10. The report of Insight’s September 23, 2019 survey, dated September 30, 2019, indicated the presence of 6 ACMs in certain walls of the Hotel’s restaurant. 7 Supporting Evidence: 8 Exhibit 6 – Depo. of Benjamin Blaker at 47:21-50:13, 68:2-10. 9 Exhibit 11 - Insight’s Preliminary Asbestos 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 Survey, dated September 30, 2019. LOS ANGELES, CALIFORNIA 90071-1560 11 11. On October 3, 2019, Mike Evans of Young Brothers requested additional ACM testing because CAVANAUGH Telephone (213) 362-7777 12 Facsimile (213) 362-7788 “the first week of demo has exposed materials that were not previously tested.” 13 Supporting Evidence: 14 Exhibit 4 – Depo. of Ted Bruckner at 91:15- | 15 YUKEVICH 92:20. 16 Exhibit 10 – Depo. of Dane Patunoff at 76:2-77:8. 17 Exhibit 13 - Email Chain between 18 employees of Plaintiff and Young Brothers, dated October 3 and 4, 2019. 19 12. On October 3, 2019, as requested, Insight came 20 back and performed another limited preliminary asbestos survey, specifically to test for the presence 21 of ACMs in acoustic ceiling materials in specified areas of the Hotel, including in the first floor 22 interior walls and in the doorway to the bar hall. 23 Supporting Evidence: 24 Exhibit 6 – Depo. of Benjamin Blaker at 50:1-18, 74:18-75:13, 76:6-77:1, 78:17- 25 79:9. 26 Exhibit 10 – Depo. of Dane Patunoff at 76:2-77:8, 90:15-91:3. 27 Exhibit 13 - Email Chain between 28 employees of Plaintiff and Young Brothers, 5 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 dated October 3 and 4, 2019. 3 Exhibit 14 - Insight’s Preliminary Asbestos 4 Survey, dated October 7, 2019. 5 13. Insight’s October 3, 2019 sampling revealed the presence of ACMs in the Hotel’s acoustic ceiling 6 materials and stucco walls. 7 Supporting Evidence: 8 Exhibit 6 – Depo. of Benjamin Blaker at 50:1-18, 74:18-75:13, 76:6-77:1, 78:17- 9 79:9. 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 Exhibit 10 – Depo. of Dane Patunoff at 76:2-77:8, 90:15-91:3. LOS ANGELES, CALIFORNIA 90071-1560 11 Exhibit 14 - Insight’s Preliminary Asbestos CAVANAUGH Telephone (213) 362-7777 12 Survey, dated October 7, 2019. Facsimile (213) 362-7788 13 14. The sampling requested of Insight on October 3, 2019 did not include the El Cantina Ballroom floor. 14 Supporting Evidence: | 15 YUKEVICH Exhibit 6 – Depo. of Benjamin Blaker at 16 50:1-18, 74:18-75:13, 77:17-22. 17 Exhibit 10 – Depo. of Dane Patunoff at 91:20-92:5. 18 Exhibit 12 – Decl. of Robert Augspurger ¶ 19 9. 20 Exhibit 14 - Insight’s Preliminary Asbestos Survey, dated October 7, 2019. 21 15. On October 4, 2019 at 11:37 a.m., Insight emailed 22 the preliminary results of its October 3, 2019 sampling to Plaintiff. 23 Supporting Evidence: 24 Exhibit 10 – Depo. of Dane Patunoff at 25 76:2-77:8, 90:15-91:3. 26 Exhibit 13 - Email Chain between employees of Plaintiff and Young Brothers, 27 dated October 3 and 4, 2019. 28 6 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 3 Exhibit 15 - Email Chain between 4 employees of Plaintiff and Young Brothers, dated October 4-7, 2019. 5 16. On October 4, 2019 at 12:11 p.m., Plaintiff’s 6 employee, Dane Patunoff, forwarded Insight’s results to Ted Bruckner, Brian Szymczak, and Mr. 7 Evans of Young Brothers. 8 Supporting Evidence: 9 Exhibit 10 – Depo. of Dane Patunoff at 76:2-77:8, 90:15-91:3. 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 Exhibit 13 - Email Chain between LOS ANGELES, CALIFORNIA 90071-1560 11 employees of Plaintiff and Young Brothers, dated October 3 and 4, 2019. CAVANAUGH Telephone (213) 362-7777 12 Facsimile (213) 362-7788 Exhibit 15 - Email Chain between 13 employees of Plaintiff and Young Brothers, dated October 4-7, 2019. 14 17. On October 4, 2019 at 12:23 p.m., Mr. Patunoff | 15 YUKEVICH emailed Mr. Szymczak and inquired as to whether the subfloor in El Cantina Ballroom had been tested 16 because he did not see any indication in the prior test results he received that the ballroom subfloor 17 had been tested. 18 Supporting Evidence: 19 Exhibit 10 – Depo. of Dane Patunoff at 76:2-77:8, 88:7-89:20. 20 Exhibit 13 - Email Chain between 21 employees of Plaintiff and Young Brothers, dated October 3 and 4, 2019. 22 Exhibit 15 - Email Chain between 23 employees of Plaintiff and Young Brothers, dated October 4-7, 2019. 24 18. On October 4, 2019 at 12:33 p.m., Mr. Szymczak 25 responded to Mr. Patunoff email, stating, “El Cantina subfloor is good no need to test.” 26 Supporting Evidence: 27 Exhibit 10 – Depo. of Dane Patunoff at 28 7 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 89:21-90:14. 3 Exhibit 13 - Email Chain between 4 employees of Plaintiff and Young Brothers, dated October 3 and 4, 2019. 5 Exhibit 16 – Depo. of Brian Szymczak at 6 42:19-43:23, 44:1-22. 7 19. Due to Mr. Szymczak’s representation, Mr. Patunoff then allegedly requested that Young 8 Brothers instruct its subcontractor, Michael Ramirez of AC Ramirez, to test sand the El Cantina 9 Ballroom floor. 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 Supporting Evidence: LOS ANGELES, CALIFORNIA 90071-1560 11 Exhibit 4 – Depo. of Ted Bruckner at 75:9- 15. CAVANAUGH Telephone (213) 362-7777 12 Facsimile (213) 362-7788 Exhibit 10 – Depo. of Dane Patunoff at 13 76:6-77:8, 88:7-91:3, 92:23-93:2. 14 Exhibit 13 - Email Chain between employees of Plaintiff and Young Brothers, | 15 dated October 3 and 4, 2019 YUKEVICH 16 Exhibit 16 – Depo. of Brian Szymczak at 48:7-8, 53:7-16, 59:19-60:4, 99:24-100:4. 17 20. On October 10, 2019, Mr. Ramirez allegedly 18 sanded a portion of the El Cantina Ballroom flooring before it could be sampled or tested for 19 ACMs. 20 Supporting Evidence: 21 Exhibit 1 – Plaintiff’s SAC ¶ 22. 22 Exhibit 4 – Depo. of Ted Bruckner at 75:9- 15. 23 Exhibit 10 – Depo. of Dane Patunoff at 24 91:20-92:5. 25 Exhibit 16 – Depo. of Brian Szymczak at 53:7-16, 59:19-60:4, 98:5-10. 26 21. On October 11, 2019, Insight came back and 27 performed sampling in the El Cantina Ballroom area for the first time. 28 8 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 Supporting Evidence: 3 Exhibit 1 – Plaintiff’s SAC ¶ 23. 4 Exhibit 6 – Depo. of Benjamin Blaker at 5 84:21-85:3, 89:2-10. 6 Exhibit 7 – Depo. of Gavin Wright at 78:19- 79:18. 7 Exhibit 10 – Depo. of Dane Patunoff at 8 91:20-92:5. 9 Exhibit 12 – Decl. of Robert Augspurger ¶ 9. 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 Exhibit 17 - Insight’s Preliminary Asbestos LOS ANGELES, CALIFORNIA 90071-1560 11 Survey, dated October 22, 2019. CAVANAUGH Telephone (213) 362-7777 12 22. The sampling performed by Insight on October 11, Facsimile (213) 362-7788 2019 revealed that the sheet vinyl flooring in the El 13 Cantina Ballroom area contained ACMs which may have been disturbed by the sanding. 14 Supporting Evidence: | 15 YUKEVICH Exhibit 10 – Depo. of Dane Patunoff at 16 91:20-92:22. 17 Exhibit 17 - Insight’s Preliminary Asbestos Survey, dated October 22, 2019. 18 23. Plaintiff allegedly shut down the Project so that 19 additional ACM testing, containment, and abatement measures could be taken at the Hotel. 20 Supporting Evidence: 21 Exhibit 1 – Plaintiff’s SAC ¶¶ 26, 57. 22 Exhibit 2 - Plaintiff’s Responses to Young 23 Brothers’ Special Interrogatories, Set One, No. 9. 24 Exhibit 4 – Depo. of Ted Bruckner at 25 164:17-24. 26 Exhibit 10 – Depo. of Dane Patunoff at 102:10-104:15. 27 28 9 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 24. Plaintiff’s SAC, filed on August 15, 2022, alleges 3 two causes of action against Insight, for Negligence, and for Negligent Misrepresentation. 4 Supporting Evidence: 5 Exhibit 1 – Plaintiff’s SAC ¶¶ 39-59. 6 25. Insight’s contract with Plaintiff did not confer 7 discretion or require Insight to choose which areas of the Hotel to be sampled or tested. 8 Supporting Evidence: 9 Exhibit 8 – Limited Asbestos Survey 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 Agreement. LOS ANGELES, CALIFORNIA 90071-1560 11 26. Insight simply collected samples in areas specified by Plaintiff and sent the samples for lab testing. CAVANAUGH Telephone (213) 362-7777 12 Facsimile (213) 362-7788 Supporting Evidence: 13 Exhibit 5 – Decl. of Benjamin Blaker ¶ 3. 14 Exhibit 6 – Depo. of Benjamin Blaker at | 15 YUKEVICH 25:15-21, 26:16-28:23, 36:13-38:2, 38:8-15, 41:8-20, 47:4-12, 47:21-52:10, 56:23-57:17, 16 64:6-25, 109:11-110:9. 17 Exhibit 8 – Limited Asbestos Survey Agreement. 18 Exhibit 12 – Decl. of Robert Augspurger ¶ 19 5. 20 27. Insight did not collect any samples of the El Cantina Ballroom floor until October 11, 2019, 21 after the subfloor had already been sanded by Young Brothers and/or its subcontractor as, 22 Plaintiff claims. 23 Supporting Evidence: 24 Exhibit 5 – Decl. of Benjamin Blaker ¶ 8. 25 Exhibit 6 – Depo. of Benjamin Blaker at 152:10-18. 26 Exhibit 11 - Insight’s Preliminary Asbestos 27 Survey, dated September 30, 2019 28 Exhibit 12 – Decl. of Robert Augspurger ¶ 10 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 9. 3 Exhibit 14 - Insight’s Preliminary Asbestos 4 Survey, dated October 7, 2019 5 28. Only three Insight employees and/or representatives performed work at the Subject Property for Plaintiff 6 in connection with the Project: Benjamin Blaker; Robert Augspurger; and Gavin Wright. 7 Supporting Evidence: 8 Exhibit 5 – Decl. of Benjamin Blaker ¶ 4. 9 Exhibit 12 – Decl. of Robert Augspurger ¶ 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 8. LOS ANGELES, CALIFORNIA 90071-1560 11 29. Insight’s owner, Benjamin Blaker, did not represent to anyone, including any persons affiliated with CAVANAUGH Telephone (213) 362-7777 12 Facsimile (213) 362-7788 Plaintiff or Young Brothers Construction Company, that the flooring of the El Cantina Ballroom did not 13 need to be tested for ACMs, or that it could it could be sanded prior to any ACM testing or before the 14 completion of any ACM testing. | 15 YUKEVICH Supporting Evidence: 16 Exhibit 5 – Decl. of Benjamin Blaker ¶¶ 5- 6. 17 Exhibit 6 – Depo. of Benjamin Blaker at 18 119:14-121:17. 19 30. Mr. Blaker is not aware of any Insight employee or representative making any such representation that 20 the El Cantina Ballroom subfloor was “good to go” for sanding, or that there was “no need to test” the 21 El Cantina Ballroom flooring or subfloor prior to obtaining test results. 22 Supporting Evidence: 23 Exhibit 5 – Decl. of Benjamin Blaker ¶¶ 5- 24 6. 25 Exhibit 6 – Depo. of Benjamin Blaker at 119:14-121:17. 26 31. Mr. Blaker was not even at the Hotel on October 4, 27 2019, the date that these purported 28 11 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 misrepresentations were allegedly made to Young 3 Brothers. 4 Supporting Evidence: 5 Exhibit 5 – Decl. of Benjamin Blaker ¶ 7. 6 Exhibit 6 – Depo. of Benjamin Blaker at 119:14-121:17. 7 Exhibit 19 - Plaintiff’s Responses to 8 Insight’s Special Interrogatories, Set One, Nos. 3 and 5. 9 32. Insight’s CDHP Sampling Technician, Robert 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 Augspurger, was also not at the Hotel on October 4, 2019. LOS ANGELES, CALIFORNIA 90071-1560 11 Supporting Evidence: CAVANAUGH Telephone (213) 362-7777 12 Facsimile (213) 362-7788 Exhibit 12 – Decl. of Robert Augspurger ¶¶ 13 5-9. 14 Exhibit 19 - Plaintiff’s Responses to Insight’s Special Interrogatories, Set One, | 15 Nos. 3 and 5. YUKEVICH 16 33. Mr. Augspurger did not tell anyone, including any persons affiliated with KHP or Young Brothers 17 Construction Company, that the flooring of the El Cantina Ballroom did not need to be tested for 18 ACMs, or that it could it could be sanded prior to any ACM testing or before the completion of any 19 ACM testing. 20 Supporting Evidence: 21 Exhibit 12 – Decl. of Robert Augspurger ¶¶ 5-9. 22 34. Mr. Augspurger did not believe it was his or 23 Insight’s job to make recommendations as to whether or not specific areas of the Hotel were 24 cleared for sanding, demolition, or any other renovation task associated with the Project. 25 Supporting Evidence: 26 Exhibit 12 – Decl. of Robert Augspurger ¶¶ 27 5-9. 28 12 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 35. Insight site surveillance technician, Gavin Wright, 3 did not have any conversations with anybody at Young Brothers telling them that the El Cantina 4 Ballroom subfloor did not need to be tested, and he is not aware of anyone at Insight making any such 5 representations. 6 Supporting Evidence: 7 Exhibit 7 – Depo. of Gavin Wright at 16:23- 17:13, 59:8-15, 125:7-126:11, 132:5-24, 8 139:24-140:8. 9 36. Young Brothers has expressly acknowledged that Gavin Wright was not the individual that allegedly 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 made these purported representations alleged of in Plaintiff’s SAC. LOS ANGELES, CALIFORNIA 90071-1560 11 Supporting Evidence: CAVANAUGH Telephone (213) 362-7777 12 Facsimile (213) 362-7788 Exhibit 16 – Depo. of Brian Szymczak at 13 31:18-34:2, 66:18-67:11, 116:13-21. 14 37. On October 3, 2019, Mr. Szymczak knew that that the flooring in the El Cantina Ballroom was an area | 15 YUKEVICH of concern for potential ACMs. 16 Supporting Evidence: 17 Exhibit 16 – Depo. of Brian Szymczak at 28:13-30:14, 35:16-36:7. 18 38. Although he was mistaken as to what was actually 19 sampled, Mr. Szymczak claims that on October 3, 2019 he saw someone take a sample of the El 20 Cantina Ballroom subfloor. 21 Supporting Evidence: 22 Exhibit 14 - Insight’s Preliminary Asbestos Survey, dated October 7, 2019. 23 Exhibit 16 – Depo. of Brian Szymczak at 24 27:3-12, 31:18-25, 36:1-7 39:2-5. 25 39. Mr. Szymczak understood that the samples he allegedly saw taken would be sent to a lab for ACM 26 testing. 27 Supporting Evidence: 28 Exhibit 16 – Depo. of Brian Szymczak at 13 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT INSIGHT ENVIRONMENTAL, INC.’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 1 No. Insight’s Undisputed Material Facts and Opposing Party's Response Supporting Evidence: and Supporting Evidence: 2 36:4-7, 40:13-18, 45:2-5. 3 40. Mr. Szymczak understood that it would take at least 4 a few days for the lab to test the samples and return its results. 5 Supporting Evidence: 6 Exhibit 16 – Depo. of Brian Szymczak at 7 40:19-22. 8 41. Mr. Szymczak believed that the El Cantina Ballroom flooring should not be sanded before the 9 test results came back. 355 SOUTH GRAND AVENUE, FIFTEENTH FLOOR 10 Supporting Evidence: LOS ANGELES, CALIFORNIA 90071-1560 11 Exhibit 16 – Depo. of Brian Szymczak at 34:9-35:4, 40:23-41:6. CAVANAUGH Telephone (213) 362-7777 12 Facsimile (213) 362-7788 42. Mr. Szymczak knew on October 4, 2019 that 13 Plaintiff still considered the El Cantina Ballroom subfloor to be an area of concern for potential 14 ACMs. | 15 YUKEVICH Supporting Evidence: