Motion,Ex Parte: JOEL HERNANDEZCUEVA, ET AL VS. AMERICAN STANDARD INC,. ET AL

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                                Electronically FILED by Superior Court of California, County of Los Angeles on 03/22/2022 08:17 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Valenzuela,Deputy Clerk


                     1   Simona A. Farrise, Esq. (CSB No. 171708)
                         FARRISE LAW FIRM, P.C.
                     2   P.O. Box 118
                         Port Costa, CA California 94569
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                     4   Benjamin H. Adams, Esq. (CSB No. 272909)
                         DEAN OMAR BRANHAM SHIRLEY, LLP
                     5   302 N. Market Street, Suite 300
                         Dallas, Texas 75202
                     6   Telephone: (214) 722-5990
                         Facsimile: (214) 722-5991
                     7   badams@dobslegal.com

                     8   Attorneys for Plaintiffs

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                                               SUPERIOR COURT OF THE STATE OF CALIFORNIA
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                                                          FOR THE COUNTY OF LOS ANGELES
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                    12     Coordinated Special Proceeding                            Coordinated Case No: JCCP 4674
                           Special Title (Rule 3.550)
                    13                                                               [Assigned for all pre-trial purposes to the
                            LAOSD ASBESTOS CASES                                     Honorable Hon. Stuart M. Rice, Dept. 15]
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                          JOEL HERNANDEZCUEVA, Deceased;                             LASC Case No.: BC475956
                    15                                                               (Consolidated with BC558820)
                    16    JOVANA COLLANTES, individually and as
                          her and successor-in-interest to JOEL
                    17    HERNANDEZCUEVA, deceased; JOANNA                           PLAINTIFFS’ MOTION IN LIMINE TO
                          HERNANDEZ, JOEL HERNANDEZ,                                 EXCLUDE SPECULATIVE TESTIMONY
                    18    JENNY HERNANDEZ, NOHELY                                    OF GARY PAOLI AND ROBERT
                                                                                     GALLUCCI
                          HERNANDEZ, individually and as heirs to
                    19    JOEL HERNANDEZCUEVA, deceased,                             [MOTION IN LIMINE NO. 3]
                    20
                                                                                     [Filed Concurrently with Declaration of
                    21                                    Plaintiffs,                Benjamin H. Adams; [PROPOSED] Order]

                    22    vs.                                                        ____________________________________
                    23    AMERICAN STANDARD, INC.; et al.                            Complaint Filed:            September 25, 2014
                    24                                                               Trial Date:                 May 2, 2022
                                                           Defendants.
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                                   PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE SPECULATIVE TESTIMONY [MIL NO. 3]
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                                  Plaintiffs  hereby    move    this court   for  an  order   in limine   preventing    Defendants’     expert
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                         witnesses     Gary    Paoli   and   Robert    Gallucci    from    offering    speculative     testimony    that   Joel
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                         Hernandezcueva       was   not  exposed     to any   asbestos   from   the  renovation    and   removal    of  Kaiser
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                         Gypsum’s      Null-A-Fire    fire-rated   drywall   and   Hamilton’s     All-Purpose     joint compound      initially
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                         installed by E.F. Brady in the mid-1970’s during the construction of the Flour offices known as Park
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                         Place at 3333 Michelson Drive Irvine, California.             Neither witness has any personal knowledge of
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                         any   construction    activities  involving   the  Flour   offices   and  their  speculative    testimony    that Mr.
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                         Hernandezcueva would not have been exposed to dust from the disturbance of the drywall and joint
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                         compound material Brady installed is directly contradicted by a Flour representative who testified
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                         that a quarter of the originally installed drywall and joint compound was disturbed between 1992
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                         and 1995 during Mr. Hernandezcueva’s tenure as a janitor in that facility.
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                                                                                FACTS
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                                  Fluor Corporation contracted with C.L. Peck to construct Park Place, a large office complex
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                         at 3333 Michelson Drive, Irvine, California consisting of four pods (A, B, C and D), and a concourse
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                         connecting those pods.      C.L. Peck, in turn, subcontracted the drywall work to E.F. Brady who agreed
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                         to supply the materials for the project and to install them.          EF Brady installed all of the drywall and
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                         joint compound on the project, including the core, the shell and tenant improvement work.1                     Ninety
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                         percent   of the  interior  walls  were   drywall.2   E.F.  Brady    installed  1,190,000    square   feet of  Kaiser
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                         Gypsum’s Null-A-Fire fire-rated drywall board and approximately 22,500 gallons of Hamilton All-
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                         Purpose joint compound in Pods A, B, C, D and the Concourse.3 Both the Kaiser Gypsum drywall
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                         and the Hamilton All-Purpose joint compound contained asbestos.
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                                  While    working     as  a  janitor   at  Park   Place    from   approximately      1993    to  1995,    Joel
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                         Hernandezcueva was exposed to dust and debris from the Kaiser Gypsum drywall and the Hamilton
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                         All-Purpose joint compound. During that time period, approximately 25% of the original drywall
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                          Ex. 1, Mallonee Trial Testimony at 198:4-9; 200:16-27; 202: 8-21; 207:15-26; 208:3; 208:16-19; 233:21-234:13,
                    27    234:25-27.
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                           Id. at 204:17-205:2.
                    28   3
                          Ex. 2, Deposition of Gary Paoli (10/29/18) at 22:14-21; 45:21-46:7.

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                                   PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE SPECULATIVE TESTIMONY [MIL NO. 3]
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                         walls in Pods A, B, C, D and the Concourse were demolished during renovations and remodeling at
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                         the  Park  Place   property.4   According     to Fluor,  the  premises    owner,   this  included   knocking    down
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                         walls.5 Fluor reiterated its testimony at trial that approximately 25% of the original walls in Pods
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                         A, B, C and the Concourse were disturbed between 1992 and 1995.6
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                                  Indeed,   Mr.   Hernandezcueva       recalled   construction    in  which   walls   were   knocked    down:
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                         “Sometimes they would knock down walls or they would remodel inside.”7 Mr. Hernandezcueva had
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                         to collect  the  trash  from   the  wall  demolition,    which   included    “drywall,   insulation,   anything   that
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                         came    from   the  construction…”8      He   cleaned   up   construction    debris  left  by  outside   contractors,
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                         including   “drywall    and  metal.”9   Mr.   Hernandezcueva       was   the only   person   who   cleaned   up  after
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                         construction    for Fluor.10   He  had   to clean  up  all the  buildings   in the  complex.11    The   construction
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                         debris came “from the offices."12 Mr. Hernandezceuva hung plastic for the contractors and was there
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                         when the drywall was being taken down “with a vacuum” to clean up “so when they would knock
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                         it down, the least amount of dust that could be made or had there.”13 The outside contractors left the
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                         place “really dirty,” so Mr. Hernandezcueva had to clean up after them as well.14
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                                  While Defendants’ construction expert, Gary Paoli, bid on the Park Place project, he did not
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                         win the contract and was not at the jobsite at the time of the construction or during any subsequent
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                         repairs or renovations. He did visit the site but not until October of 2018 when he only had access
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                         to the public areas.
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                                  Defendants’ other construction expert, Robert Galluci, was also not present when E.F. Brady
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                         performed their work at Park Place or at any other time except on one instance he met a friend in
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                    23    Ex. 3, Deposition of defendant Fluor Corporation though its designated PMK John Sorich, (8/2/13) at p. 8:10-17; 8:21-
                         9:3; 219:3-220:14, 220:17-221:13, 221:16-222:20.
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                    24    Id. at p. 221:16-222:6
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                          Ex. 4, trial testimony of Fluor Corporation through its designated PMK John Sorich, (9/25/13) at 459:20-460:10.
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                    25    Ex. 5, Deposition of Joel Hernandezceuva, (5/1/13) at p. 23:2-9.
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                          Id. at 23:21-25, 24:13-18.
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                    26    Id. at 43:7-23
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                           Id. at 57:6-11.
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                           Id. at 78:13-18.
                    27   12
                           Id. at 44:11-16.
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                           Id. at 58:12-59:4 and 60:15-22.
                    28   14
                           Id. at 61:13-25.

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                                   PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE SPECULATIVE TESTIMONY [MIL NO. 3]
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                         the lobby and on another, in October of 2013, he took pictures of the public areas.15 He has never
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                         seen the utility rooms, the electric rooms, the janitor’s closet nor the storage rooms at Park Place.16
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                                                                            ARGUMENT
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                         I.       EVIDENCE          WHICH         PRODUCES          ONLY        SPECULATIVE            INFERENCES            IS
                     5            IRRELEVANT AND, THEREFORE, INADMISSIBLE.
                     6            Only   relevant   evidence    is admissible.    Ev.   C.  §  350.  “Relevant    evidence”     is defined   as
                     7   “evidence…having         any   tendency    in  reason   to  prove   or  disprove    any   disputed   fact  that  is of
                     8   consequence      to the  determination     of the  action.”  Ev.   C.  § 210.  Evidence     is relevant   if it“tends
                     9   ‘logically, naturally, and by reasonable inference’ to establish material facts.” People v. Benavides
                    10    (2005)   35  Cal.4th   69, 90  (citing  People   v.  Garceau    (1993)   6  Cal.4th  140,   177).  Although    a  trial
                    11    court has broad discretion in determining the relevance of evidence, it has no discretion to admit
                    12    irrelevant evidence. Id.
                    13            Speculative inferences do not establish relevance. The evidence must have a tendency “in
                    14    reason”   to  prove   the  disputed    facts: “Evidence     which    produces    only   speculative    inferences   is
                    15    irrelevant evidence.”      People v. Babbitt (1988) 45 C3d 660, 682 (emphasis in original); People v.
                    16    Hovarter (2008)      44  C4th   983,   1009; California Pub.      Employees'     Retirement    System    v. Moody's
                    17    Investors Service, Inc. (2014) 226 CA4th 643, 684.
                    18            In People v. Babbitt, 45 C3d 660, 682, the defendant offered evidence that violent movies
                    19    were being shown on the victim's television and claimed these triggered his attack on the victim.
                    20    Such evidence was “too speculative” to be relevant in the absence of evidence that defendant had
                    21    actually  seen   or  heard  the  movies.    Id. Since   such   a link  was   not  established,   the  evidence    was
                    22    properly excluded. Id.
                    23            There   was   a  similar   missing    link  in California    Pub.   Employees’     Retirement     System    v.
                    24    Moody’s Investors Service, Inc., 226 CA4th 643, 684, an action by the California Public Employees'
                    25    Retirement    System    against   credit  rating  agencies    for  negligent   misrepresentation      and  negligent
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                    27   15
                            Ex. 6, Galluci Deposition at 60:13-20; 87:8-11.
                    28   16
                            Id. at 57:11-16; 58:15-59:3.


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                                   PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE SPECULATIVE TESTIMONY [MIL NO. 3]
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                         interference with prospective economic advantage. In affirming the trial court’s exclusion of various
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                         exhibits,   Division   3  held   that  there  was   a  reasonable    basis   for  excluding    exhibits   relating  to
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                         Defendants'    rating   activities  as  overly  speculative    and   irrelevant  because    none   of  the  excluded
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                         exhibits   mentioned     the  type  of  securities   named    in  the  complaint.    CalPers    did  not  “offer  any
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                         evidence of an appropriate link between the securities identified in the [excluded] exhibits and those
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                         identified  in  the  complaint.”    California Pub.    Employees'     Retirement    System    v. Moody's    Investors
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                         Service, Inc., supra, 226 CA4th at 684. Importantly, the excluded exhibits related to other financial
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                         products rated by the defendant Rating Agencies, but not the specific financial products at issue in
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                         plaintiffs’ complaint. Id.
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                                  Here,   both   Gary   Paoli   and   Robert    Gallucci   are  speculating     when    they  aver   that  Joel
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                         Hernandezcueva was not exposed to asbestos from an repairs or renovations to the drywall materials
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                         installed by Brady at Park Place. Neither expert was present when the work was done or when any
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                         other repairs or renovations occurred at Park Place.             On the other hand, John Sorich, a corporate
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                         representative for Flour, was present at the Park Place worksite from 1979 until 1985 and from 1991
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                         until  1995   and   whose    work    was   very   connected    to  consolidating    the  offices   at  Park   Place17,
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                         estimated that 25% of the original drywall was disturbed from 1992 through 1995 from “knocking
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                         down a wall, putting up a new wall, those types of things; the air condition vents and the location of
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                         that; the lighting; those types of things.”18
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                                                                           CONCLUSION
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                                  For  all the  reasons   stated  herein,   Plaintiffs  respectfully   submit    that the  Court   grant  their
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                         motion in limine and prevent Mr. Paoli and Mr. Gallucci from testifying that Joel Hernandezcueva
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                         was not exposed to drywall products installed by E.F. Brady at Park Place.
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                            See Ex. 3, Sorich Deposition at 47:16-22.
                    28   18
                            Sorich Deposition at 219:3-222:6.

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                                   PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE SPECULATIVE TESTIMONY [MIL NO. 3]
                     1   DATED: March 22, 2022                                 FARRISE LAW FIRM, P.C.
                                                                               DEAN OMAR & BRANHAM, LLP
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                     3                                                           By:   /s/ Benjamin H. Adams
                     4                                                                 Simona A. Farrise, Esq.
                                                                                       Benjamin H. Adams, Esq.
                     5                                                                 Attorneys for Plaintiffs

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                                   PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE SPECULATIVE TESTIMONY [MIL NO. 3]
                     1                                                PROOF OF SERVICE
                                                                   LASC      Case No.: BC475956
                     2                                            (Consolidated with BC558820)
                     3
                                  I am employed in the County of Dallas, State of Texas.             I am over eighteen years of age and
                     4   not a party to the within action; my business address is 302 N. Market Street, Suite 300, Dallas,
                         Texas 75202.
                     5
                                  On the date set forth below, I served the foregoing document(s) described as:
                     6
                                       PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE SPECULATIVE
                     7              TESTIMONY OF GARY PAOLI AND ROBERT GALLUCCI (MIL NO. 3)
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                                  On all interested parties in this action as follows:
                     9
                                                 SEE SERVICE LISTED ATTACHED ON LEXIS NEXIS
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                                   [X]      BY ELECTRONIC SERVICE: I caused the above document(s) to be served via File
                    11    & ServeXpress pursuant to C.C.P. § 1010.6, C.R.C. Rule 2.251, and the Case Management Order
                    12    filed June 12, 2012 authorizing electronic service in asbestos cases, transmitting completely and
                          without error through the approved vendor on all interested parties in this action as designated on
                    13    the Transaction Receipt located on the File & ServeXpress website.

                    14            I declare under penalty of perjury, under the laws of the State of California that the above
                         is true and correct.
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                    16            Executed on March 22, 2022.

                    17                                                               /s/ Chelsea Weeks
                                                                                     Chelsea Weeks
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                                   PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE SPECULATIVE TESTIMONY [MIL NO. 3]