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BUTY & CURLIANO LLP.
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‘310.287.8000
JASON J. CURLIANO [SBN 167509]
MARC BRAINICH [SBN 191034]
JOHN T. SHEEHAN [SBN 273994]
BUTY & CURLIANO LLP ELECTRONICALLY
516 - 16" Street FILED
Oakland, CA 94612 Superior Court of California,
Tel: 510.267.3000 County of San Francisco
Fax: 510.267.0117 08/21/2018
Email: jcurliano@butycurliano.com Clerk of the Court
mbrainich@butycurliano.com BY OLARD A ASO BAe
jsheehan@butycurliano.com. Deputy Clerk
Attorneys for Cross-Complainant and Cross-Defendant:
KAISER FOUNDATION HEALTH PLAN, INC.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JAMES SPINGOLA, ) No. CGC-17-562009
)
Plaintiff, ) DECLARATION OF JOHN SHEEHAN
v. ) IN SUPPORT OF KAISER
) FOUNDATION HEALTH PLAN,
KAISER FOUNDATION HOSPITALS, | ) INC”S MOTION FOR SUMMARY
AGUATIERRA ASSOCIATES, INC. dba ) JUDGMENT
WEISS ASSOCIATES, AMEC FOSTER- )
WHEELER ENVIRONMENTAL & ) Date: October 9, 2018
INFRASATUCTURE, INC., HALEY & ) Time: 9:30 a.m.
ALDRICH, INC., DOES ONE through ONE +) ~Dept.: 302
HUNDRED, )
) [Hearing date per Court order on August 7,
Defendants. ) 2018]
2 )
) Complaint Filed: October 19, 2017
AND RELATED CROSS-CLAIMS ) Trial Date: October 22, 2018
)
I, John T. Sheehan, declare as follows:
1. lam an attorney duly licensed to practice law in the State of California and an
associate with the law firm of Buty & Curliano LLP, attorneys of record for Kaiser Foundation
Health Plan, Inc. (“KFHP”). Iam one of the attorneys at my firm responsible for handling this
matter and, in that capacity, have personal knowledge of the facts set forth in this declaration. If
called upon as a witness, I would and could competently testify as to the facts set forth in this
declaration.
1
DECLARATION OF JOHN SHEEHAN IN SUPPORT OF KAISER FOUNDATION HEALTH PLAN,
INC.’S MOTION FOR SUMMARY JUDGMENT28
2. Attached hereto as Exhibit A is a true and correct copy of the First Amended
Complaint (“FAC”) for Plaintiff James Spingola’s (“Plaintiff”) personal injury action against
Aguatierra Associates, Inc. dba Weiss Associates (“Weiss”), filed on November 17, 2017.
3. Plaintiff's FAC alleges Weiss’ work and services at the property at 2130 O’Farrell
Street, San Francisco, California (“O’Farrell Street Property”) resulted in toxic exposures to
Plaintiff of chemicals that caused personal injury and damages. Plaintiff's FAC does not make any
claim against KI'HP or allege that KFHP is liable in any way for Plaintiff's personal injuries at
issue in his personal injury action.
4. Attached hereto as Exhibit B is a true and correct copy of Weiss’ Cross-Complaint
against KFHP seeking equitable indemnity, contribution and declaratory relief, filed on March 5,
2018.
5. In the Cross-Complaint, the only factual allegation Weiss makes regarding KFHP’s
conduct in connection with the Contract is that Weiss recommended KFHP investigate potential
vapor intrusion in February 2005 and that KFHP did not investigate this issue until 2008 when it
subsequently evacuated its employees from the Property. Weiss does not allege that the “sole”
negligence of KFHP resulted in Plaintiffs toxic exposures and injuries alleged in the FAC.
6. Richard Weiss, owner of Weiss was deposed in this action on June 20, 2018. Mr.
Weiss was designated by Weiss as their person most qualified regarding Weiss’ work at the
property at O’Farrell Street Property at issue in the personal injury action. At his deposition, Mr.
Weiss testified that Weiss had approximately 50 employees between 1997 and 2007. Mr. Weiss
testified Weiss did not perform asbestos work at the O’Farrell Street Property. Attached hereto as
Exhibit C is a true and correct copy of excerpts from Mr. Weiss’ deposition transcript.
7. Scott Bourne, a former employee of Weiss was deposed in this action on July 11,
2018. Mr. Bourne described two memoranda he authorized in 2004 and 2005 addressed to Kaiser
Foundation Hospitals employee Helen Ku regarding Weiss’ work at the O’Farrell Street Property.
Attached hereto as Exhibit D is a true and correct copy of excerpts from Mr. Bourne’s deposition
transcript. Attached hereto as Exhibit E are true and correct copies of the two memoranda shown
to Mr. Bourne as exhibits during his deposition.
2
DECLARATION OF JOHN SHEEHAN IN SUPPORT OF KAISER FOUNDATION HEALTH PLAN,
INC.’S MOTION FOR SUMMARY JUDGMENT1 I declare, under penalty of perjury under the laws of the State of California, that the
2 || foregoing is true and correct. Executed this 21st day of August, 2018, at Oakland, California.
JOHN SHEEHAN
28
BUTY & CURLIANOLLP
Bia tora Street 3
cAsset2
ont ae
Pree DECLARATION OF JOHN SHEEHAN IN SUPPORT OF KAISER FOUNDATION HEALTH PLAN,
INC.’S MOTION FOR SUMMARY JUDGMENTEXHIBIT A16
LAW OFFICES OF
WALKUP, MELODIA, KELLY & SCHOENBERGER
A PROFESSIONAL, CORPORATION:
650.CALIFORNIA STREET, 26" FLOOR ELECTRONICALLY
SAN FRANCISCO, CALIFORNIA 94108-2615. FILED
Ts (415) 981-7210» Fs (415) 391-6965 Isls tabdyk lf extant
County of San Francisco
KHALDOUN A, BAGHDADI (State Bar #190111) 11/17/2017
kbaghdadi@walkuplawoffice.com Clerk of the Court
JUSTIN CHOU Gtate Bar #279137) +111 pee ciork
jchou@walkuplawoffice,com
ATTORNEYS FOR JAMES SPINGOLA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JAMES SPINGOLA, Case No. CGC-17-562009
Plaintiff, First Amended Complaint for
Jaintif Damages and Demand for Jury
rial
Vv.
KAISER FOUNDATION HOSPITALS, 1. Fraudulent Concealment,
AGUATIERRA ASSOCIATES, INC. dba
WEISS ASSOCIATES, AMEC FOSTER-
WHEELER ENVIRONMENTAL &
INFRASTRUCTURE, INC., HALEY &
ALDRICH, INC., DOES ONE through
ONE HUNDRED,
2. Negligence
Defendants.
COMES NOW plaintiff James Spingola and alleges as follows:
The Parties
A Plaintiff James Spingola is an individual and a resident of the State of
California.
2. Defendant Kaiser Foundation Hospitals is a non-profit entity registered.
to dé business in the State of California. Kaiser Foundation Hospitals is
headquartered in and, upon information and belief, has its principal place of business
in Oakland, California.
1
First Amended Complaint for Damages.and Demand, for Jury Trial«« Case No. CGC-17-5620093. Defendant Kaiser Foundation Hospitals and/or Does One through
Twenty own the property 2130 O’Farrell Street in the County of San Francisco, State
of California.
4, Defendant Aguatierra Associates, Inc. dba Weiss Associates (hereinafter
“defendant Weiss Associates”) is an environmental firm with its headquarters and its
principal place of business in Emeryville, California.
5. AMEC Foster-Wheeler Environmental & Infrastructure, Inc. is a
corporation registered to do business in the State of California. Its headquarters is in
oO YN OA PF Oo WH ew
Alpharetta, Georgia.
10 6. Defendant Haley & Aldrich, Inc. is a corporation registered to do
11 || business in the State of California. It is headquartered in Burlington, Massachusetts,
12 7. A certificate of merit.is filed herewith pursuant to Code of Civil
18 || Procedure § 411.35(b)(1).
14 8. The true names, capacities, and involvement, whether individual,
15 || corporate, governmental, or associate of the defendants named herein as Doe, are
16 || unknown to plaintiff who therefore sues said defendants by such fictitious names.
17 || Plaintiff prays leave to amend this complaint to show their true names and
18 || capacities, when the same have been finally determined,
19 9. Plaintiff is informed and believes, and upon such information and belief
20 || alleges, that each of the defendants designated herein as Doe is negligently, strictly
21 || liable, professionally negligent, or otherwise legally responsible in some manner for
22 ||the events and happenings referred to here, and is negligently or otherwise legally
23 || vesponsible for the damages incurred by plaintiff.
24 10. At all times herein, each and every of the defendants was the agent,
25 || servant, partner, joint venturer, employee, and/or franchisee of each of the other
26 || defendants, and éach was at all times acting within the course and scope of such
27 || agency, service, employment, joint venture, partnership, and/or franchise.
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Preliminary Allegations
11. In 1982, defendant Kaiser Foundation Hospitals and Does One through
Twenty purchased the property at 2130 O'Farrell Street in the County of San
Francisco, State of California.
12, When it purchased this property, defendant Kaiser Foundation
Hospitals and Does One through Twenty knew or had constructive knowledge that
the property and/or the area near the property had been the location of Sanitary
Laundry Company, Sanitary Laundry & Cleaners or a. similar commercial operation.
These defendants also had actual or constructive knowledge that Sanitary Laundry
Company, Sanitary Laundry & Cleaners, and/or a similar commercial operation
operated a commercial dry laundry cleaning or similar business at and/or near this
address, and that these businesses used, stored, disposed of, and/or discarded
dangerous toxic chemicals into the subsurface soil and groundwater beneath and
around the property at 2130 O'Farrell Street. Defendant Kaiser Foundation
Hospitals and Does One through Twenty had actual or constructive knowledge that
the dangerous toxic chemicals included carcinogenic solvents such as
tetrachloroethylene (PCE) and trichloroethylene (TCE),
13. From 1989 to 1991, defendant Kaiser Foundation Hospitals and Does
One through Twenty demolished the building at 2130 O'Farrell Street and erected a
new structure. This new building was a parking structure above ground, but beneath
it there was an enclosed basement, On or before this time, defendant Kaiser
Foundation Hospitals and Does One through Twenty had actual or constructive
knowledge that the ground beneath 2130 O'Farrell Street contained toxic-
contaminated groundwater and soil, Moreover, these defendants had actual or
constructive knowledge that toxic chemical contamination of groundwater and/or
subsurface soil could lead to dangerous toxic-contaiminated indoor air.
14, During or around 1991, defendants Weiss Associates atid Does Twenty-
One through Thirty were hired, contracted, retained, and/or otherwise tasked by
3
First Amended Complaint: for Damages and Demand for Jury Trialoo Ne oe PF Oo WY
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LAW OFF108S OF
defendant. Kaiser Foundation Hospitals and Does One through Twenty with
designing, drilling, constructing, and operating a groundwater extraction system at:
2130 O'Farrell Street, This groundwater extraction system drew groundwater up
from beneath the building, removed solvents from it, and pumped it back beneath the
surface. The pump room for the groundwater extraction system was located in the
basement of 2130 O'Farrell Street.
15. The design, drilling, construction, and operation of this groundwater
extraction, system was flawed, The groundwater wells and/or their associated
machinery were carelessly, negligently, and recklessly designed, assembled,
implemented, placed, sealed, operated, and/or otherwise created and employed in
such a way that they permitted dangerous toxic chemicals like PCE and TCE in the
groundwater and/or the subsurface soil to infiltrate the indoor air of the basement of
2130 O'Farrell Street.
16. From 2005 to 2008, plaintiff James Spingola worked in defendant
Kaiser Foundation Hospitals and/or Does One through Twenty’s “Distribution
Center” which was located in the basement of 2130 O'Farrell Street. During those
years, he was present in, worked in, and breathed the toxic-contaminated indoor air
of the basement of 2130 O’Farrell Street.
17. From the time of the construction of the building to the present,
defendant Kaiser Foundation Hospitals and Does One through Twenty hired,
contracted, retained, and/or otherwise tasked defendants Weiss Associates, AMEC
Foster:Wheeler Environmental & Infrastructure, Inc., Haley & Aldrich, Inc., and
Does Twenty-One through Fifty to perform environmental testing at the subject
property. Testing revealed to defendants that there were levels of dangerous toxic
chenticals, including carcinogenic solvents, in the indoor air that were dangerous to
human health. Defendants Weiss Associates, AMEC Foster-Wheeler Environmental
& Infrastructure, Inc., Haley & Aldrich, Inc., and Does Twenty-One through Fifty
informed defendant Kaiser Foundation Hospitals and Does One through Twenty of
4
First Amended Complaint for Damages and Demand for Jury TrialAW OFFICES OF
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SAN FRANCISCO, CA 98108,
(03) 9817210
their findings, Despite these notifications, a prolonged and unreasonable amount of
time passed between the discovery of these dangerous levels of these toxic chemicals
and when defendants evacuated occupants of 2180 O'Farrell Street. During this time,
the occupants, including plaintiff James Spingola, were further exposed to dangerous
toxic chemicals at the subject property.
18. By reason of the premises, and as a substantial, legal, and proximate
cause of defendants’ actions, plaintiff James Spingola developed metastatic renal cell
carcinoma and suffered other injuries presently undiagnosed. Plaintiff is informed
and believes that, some of these injuries will be permanent.
First. Cause of Action
[Fraudulent Concealment of Injury - Defendant Kaiser Foundation
Hospitals and Does One through Twenty]
19. Plaintiff hereby incorporates by this reference all of the above
allegations as if set out in full in this First Cause of Action.
20. While working for defendant Kaiser Foundation Hospitals and Does One
through Twenty, and while working for said defendants at 2130 O'Farrell Street,
plaintiff James Spingola was injured. His injury, caused by his presence in,
occupancy of, and/or breathing in the enclosed basement space at 2130 O’Farrell
Street, includes metastatic renal cell carcinoma. Plaintiff is informed and believes
these injuries will be permanent.
21. At all relevant times herein defendants Kaiser Foundation Hospitals
and Does One through Twenty knew that there were dangerous levels of dangerous
toxic chemicals, including carcinogenic solvents, at 2130 O’Farrell Street. These
defendants also knew that plaintiff James Spingola was injured by his exposure to
said dangerous toxic chemicals while working at 2130 O'Farrell Street. Nonetheless,
thésé defendants fraudulently concealed the existence of plaintiff James Spingola’s
injury, and fraudulently concealed the connection between the injury and his
employment. This fraudulent concealment proximately caused and aggravated
5
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plaintiff James Spingola’s injury, and this aggravation caused additional serious,
permanent, and/or irreparable injury to plaintiff James Spingola.
22. Because defendant Kaiser Foundation Hospitals and Does One through
Twenty fraudulently concealed this injury and aggravation of the injury, plaintiff
James Spingola has been generally and specially damaged in a sum in excess of the
tminimum jurisdictional limits of this court.
WHEREFORE, plaintiff prays judgment against defendants, and each of them,
as hereinafter set forth,
Second Cause of Action
[Negligence —- Defendants Weiss Agonistes and Does Twenty-One through
irty
23. Plaintiff hereby incorporates by this reference all of the above
allegations as if set out in full in this Second Cause of Action.
24. After the construction of the building at 2130 O'Farrell Street,
defendants Weiss Associates and Does Twenty-One through Thirty were hired,
contracted, retained, and/or otherwise tasked with performing environmental testing
at 2130 O'Farrell Street. Defendants Weiss Associates and Does Twenty-One through
Thirty were hired, contracted, retained, and/or otherwise tasked with identifying
dangerous environmental threats, including but not limited to dangerous toxic
chemicals in the groundwater, subsurface soil, and indoor air beneath, in and/or near
2130 O’Farrell Street. These defendants carelessly, unreasonably, and recklessly
failed to identify the dangerous toxic chemicals in the groundwater, subsurface soil,
and indoor air in and/or near 2130 O'Farrell Street. Moreover, these defendants
failed to accurately determine, assess, and evaluate the danger presented by the toxic
chemicals present in or néat 2180 O’Farrell Street.
25. At all relevant times herein, defendants Weiss Associates and Does
Twenty-One through Thirty were hired, contracted, retained, and/or otherwise
tasked with designing, drilling, constructing, and operating a groundwater extraction
6
First Amended Complaint for Damages and Demand for Jury Trialyemediation system at 2130 O'Farrell Street.
woe
26. The design, drilling, construction, and operation of this groundwater
extraction system was flawed. Namely, the groundwater wells and/or their associated
machinery were carelessly, negligently, and recklessly designed, assembled,
implemented, placed, sealed, operated, and/or otherwise created and used in such a
way that.they permitted dangerous toxic chemicals like PCE and TCE in the
groundwater and/or the subsurface soil to infiltrate the indoor air of the basement of
2130 O'Farrell Street.
27. ASeptember 8, 2008 letter to the California Regional Water Quality
Oo onrwioanw fp wo
Control Board summarizés some of these failures:
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By its design and construction, there are locations where PCE vapors off gassing from
groundwater can enter the basement from various elements of the system, There are vent holes
in the-extraction and monitoring wells that allow air pressure in the well to equilibrate with air
pressure in the basement, but also allow PCE vapors to enter the basement. A preferential
pathway assessment was Implemented to evaluate whether th Ing and extraction wells
were conduits for vapor intrusion. PCE wes detected at con nging from 28 to 500
‘ugiin® in well boxes and PVC conduits in the floor slab ahd u 000 tig/m* in monitoring.
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‘ reguits of the preferential pathway a sirient, it Was concluded that the:
nd extraction wells were acting as vapor intrusion conduits allowing PCE vapors to
asement, Because of this, it was concluded that the existing pumping system ‘should
be decommissioned and moved to an alternative location and that'a replacement pumping
system should be installed in the upper groundwater zone to continue extraction of
contaminated groundwater. The replacement pumping system will be located outside of the
building located at 2130 O'Farrell Street.
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28. At all relevant times herein, defendants Weiss Associates and Does
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Twenty-One through Thirty were hired, contracted, retained, and/or otherwise
tasked with monitoring, assessing, evaluating, measuring, and/or otherwise
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overseeing the environment in and around 2180 O'Farrell Street. Said defendants
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were responsible for regularly or periodically monitoring, assessing, evaluating,
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26 || measuring, and/or otherwise overséeing the environment in and around 2130
27 || O’Farrell Street between 1991 and 2007.
28 29. During this time period, these defendants carelessly, unreasonably, and
LAW OFFICES OF
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LAW OFFICES OF
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recklessly failed to identify the threat of dangerous toxic chemicals in and/or near
2130 O'Farrell Street, and/or failed to appreciate the magnitude of this threat.
Having carelessly, unreasonably, and negligently failed to identify this threat, and/or
to appreciate the magnitude of this threat, defendants Weiss Associates and Does
Twenty-One through Thirty did not take reasonable actions to address the threat of
dangerous toxic chemicals to individuals including plaintiff James Spingola, such as
pbut-not limited to: informing defendants Kaiser Foundation Hospitals and Does One
through Twenty of said threat, informing other individuals and/or entities
responsible for the ownership, maintenance, and/or control of 2180 O'Farrell Street of
said threat, warning individuals entering or occupying 2130 O'Farrell Street of said
threat, evacuating individuals from 2180 O’Farrell Street, and/or notifying the proper
authorities of said threat to the extent required by law. In the alternative, to the
extent that such actions were taken, there was a careless, unreasonable, and reckless
delay in taking such actions which was a substantial cause of the injuries described
herein.
30, Each of the above-described actions and omissions was an independent,
substantial, and legal cause of the injury to plaintiff James Spingola, including
metastatic renal cell carcinoma and other injuries not yet. diagnosed.
31. By reason of the premises, plaintiff James Spingola was generally and
specially damaged in an amount in excess of the jurisdictional limits of this court.
WHEREFORE, plaintiff prays judgment against defendants, and each of them,
as hereinafter set forth.
Third Cause of Action
[Negligence - AMEC Foster-Wheeler Environmental & Infrastructure, Inc.,
defendant Haley & Aldrich, Inc., and Does Thirty-One through Fifty]
82, Plaintiff hereby incorporates by this reference all of the above
allegations as if set out in full in this Third Cause of Action.
33. Following the construction of the building at 2130 O'Farrell Street,
8
First Amended Complaint for Damages and Demand for Jury Trial19
LAW OFFICES OF
(50 CALIFORNIA STREET
38
SAN FRANCISCO, CA 93108
Hons) 981-7210
AMEG Foster-Wheeler Environmental & Infrastructure, Inc., Haley & Aldrich, Inc.,
and Does Thirty-One through Fifty were hired, contracted, retained, and/or otherwise
tasked with performing environmental testing at 2130 O'Farrell Street. AMEC
Foster-Wheeler Environmental & Infrastructure, Inc., defendant Haley & Aldrich,
Inc., and Does Thirty-One through Fifty were hired, contracted, retained, and/or
otherwise tasked with identifying dangerous environmental threats, including but
not limited, to dangerous toxic chemicals in the groundwater, subsurface soil, and
jndoor air beneath, in and/or near 2130 O'Farrell Street. Said defendants carelessly,
unreasonably, and, recklessly failed to identify the dangerous toxic chenticals in the
groundwater, subsurface soil, and indoor air in and/or near 2130 O'Farrell Street, or
in the alternative, failed to accurately determine, assess, and evaluate the
dangerousness of the toxic chemicals present in or near 2130 O’Farrell Street.
84. At.all relevant times herein, AMEC Foster-Wheeler Environmental &
Infrastructure, Inc., Haley & Aldrich, Inc., and Does Thirty-One through Fifty were
hired, contracted, retained, and/or otherwise tasked with monitoring, assessing,
evaluating, measuring, and/or otherwise overseeing the environment.in and around
2180 O’Farrell Street. Said defendants were responsible for regularly or periodically
monitoring, assessing, evaluating, measuring, and/or otherwise overseeing the
environment in and around 2130 0’Farrell Street during at least the period between
2007 and the present.
35. During this time period, these defendants carelessly, unreasonably, and
recklessly failed to identify the threat of dangerous toxic chemicals in and/or near
2130.O’Farrell Street, and/or failed to appreciate the magnitude of this threat.
Having failed to identify this threat, and/or to appreciate the magnitude of this
threat, AMEC Foster-Wheeler Environmental & Infrastructure, Inc. and Does
Thirty-One through Forty did not take reasonable actions to address the threat of
dangerous toxic. chemicals to individuals including plaintiff James Spingola, such as
but not limited to: informing defendants Kaiser Foundation Hospitals and Does One
9
First Amended Complaint for Damages and Demand for Jury Trial1
LAW OFFICES OF
WaLKUE, Metopis, KEY
ENBERGE:
through Twenty of said threat, informing other individuals and/or entities
responsible for the ownership, maintenance, and/or control of 2130 O'Farrell Street of
said threat, warning individuals entering or occupying 2180 O'Farrell Street of said
threat, evacuating 2130 O'Farrell Street, and/or notifying the proper authorities of
said threat to the extent required by law. In the alternative, to the extent that such
actions were taken, there was a careless, unreasonable, and reckless delay in giving
such information and/or warning which was a substantial cause of the injuries
described herein.
36. Each of the above actions and omissions was an independent,
substantial, and proximate cause of the injury to plaintiff James Spingola, including
his injury of metastatic renal cell carcinoma and other injuries not yet diagnosed.
37. By reason of the premises, plaintiff James Spingola was generally and
specially damaged in an amount in excess of thé jurisdictional limits of this court,
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First Amended Complaint for Damages and Demand for Jury TrialLAW OFFICES OF
SAN FRANCISCO. CA 92108,
Wis SerazIe
WHEREFORE, plaintiff prays judgment against defendants, and each of them,
as follows:
a. For general (non-economic) damages, in an amount to be proven
at trial;
b. For special and economic damages according to proof, in an.
amount to be proven at trial;
G For costs of suit incurred herein;
d. For pre-judgment and post-judgment interest as provided by law;
and
& For such other and further relief as the court deems just and
proper,
Dated: November 17, 2017 WALKUP, MELODIA, KELLY & SCHOENBERGER
By: oo
KHALDOUN'A. BAGHDADI
JUSTIN CHOU
Attorneys for Plaintiff
11
First Amended Complaint for Damages and Demand for Jury Trialona ron es Ww NY
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SANFRAREIKCO, CA 94108
TAS BLEND
DEMAND FOR JURY TRIAL
Plaintiffhereby demands a jury trial.
Wa.kup, MELODIA, KELLY & SCHOENBERGER
Dated: November 17, 2017
KHAEBOUN A. BAGHDADI
JUSTIN CHOU
Attorneys for Plaintiff
12
First Amended Complaint for Damages'and Demand for Jury Trialoc oN OO RB Oo DY
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LAW OFFICES OF
a1) SATIN,
PROOF OF SERVICE
Spingola v. Kaiser Foundation Hospitals
Case No, CGC-17-562009
At the time of service, I was over 18 years of age and not a party to this action.
Iam employed in the City and County of San Francisco, State of California. My
business address is 650 California Street, 26th Floor, City and County of San
Francisco, CA 94108-2615.
On the date set forth below, I caused to be served true copies of the following
document(s) described as:
FIRST AMENDED COMPLAINT ee AND DEMAND FOR JURY
to:
Anthony J. Carucci. Attorneys for Defendant AMEC Foster
Snell & Wilmer L.L.P. Wheeler Environmental &
600 Anton Boulevard, Suite 1400 Infrastructure, Inc.
Costa Mesa, CA 92626-7689 Tel: 714.427.7513
Main: 714-427-7000
Fax: 714.427.7799
Email: acarucci@swlaw.com;
sarmienta@swlaw.com
Jason Curliano Attorneys for Defendant Kaiser
Buty & Curliano LLP Foundation Hospitals
516 16th Street Tel: (5610) 267-3000
Oakland, CA 94612 Fax: (610) 267-0117
Email: icurlianc@butycurliano.com
Brooke H. Anderson Attorneys for Defendant Haley & Aldrich,
Gordon & Rees LLP ne.
275 Battery Street, Suite 2000 Tel: (415) 875-4252
San Francisco, CA 94111 Fax: (415) 986-8054
Email: banderson@ersm.com
BY MAIL: I enclosed the document(s) in a sealed envelope or package
addressed to the persons at the addresses listed in the Service List and placed the
envelope for collection and mailing, following our ordinary business practices. I am
readily familiar with the practice of Walkup, Melodia, Kelly & Schoenberger for
collecting and processing correspondence for mailing. On the same day that
correspondence is placed for collection and mailing, it is deposited in the ordinary
course of business with the United States Postal Service, in a sealed envelope with
postage fully prepaid. I am a resident or employed in the county where the mailing
occurred. The envelope was placed in the mail at San Francisco, California.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
Executed on November 21, 2017, at San Francisco, California.© ® IN ORT RB wo DD
bDwmny YY YW YD ee ee Be ee oe ee oR
a a BR CNY BF FCO ODA FARO DES
27
Law oFnices OF
SAN FRANCISCO, CA 94100
iin Ww Phat
i MirandaEXHIBIT BDAVID A. ERICKSEN (State Bar No, 153923)
daeWsevetson.com
JOHANNA: M. BERTA (State Bar No. 221376)
jinb@severson.com
SBLENE.E. PLASTIRAS (State Bar No. 294908)
sep@severson.com
SEVERSON & WERSON
A Professional Corporation
One Embarcadero Center, Suite 2600
San Francisco, California 94111
Telephone; (415) 398-3344
Facsimile; (415) 956-0439
Attorneys for Defendant AGUATIERRA
ASSOCIATES, INC,, dba WEISS ASSOCIATES
SUPERIOR. COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JAMES SPINGOLA,
Plaintiff,
vs.
KAISER FOUNDATION HOSPITALS,
AGUATIERRA ASSOCIATES, INC., dba
WEISS ASSOCIATES, AMEC FOSTER
WHEELER PLC, AMEC FOSTER-
WHEELER NORTH AMERICA, HALEY &
ALDRICH, INC., DOES ONE through ONE
HUNDRED,
Defendants.
AGUATIERRA ASSOCIATES, INC., dba
WEISS ASSOCIATES,
Cross-Complainant,
VSi
KAISER FOUNDATION HEALTH PLAN,
INC,, AMEC FOSTER WHEELER.
ENVIRONMENT & INFRASTRUCTURE,
INC.,, ROES ONE through TWENTY,
Kiros Deflendianits.
12745,0001/1 1084818,
-| Case No, CGC-17-562009
DEFENDANT AGUATIERRA
ASSOCIATES, INC., dba WEISS
ASSOCIATES’ CROSS-COMPLAINT FOR
EQUITABLE INDEMNITY,
CONTRIBUTION, AND DECLARATORY
RELIEF
Action Filed;
Trial Date:
October 19, 2017
None Assigned
DEFENDANT WEISS ASSOCIATES! CROSS-COMPLAINTDefendant and Cross-Complainant Aguatierra Associates, Inc, dba Weiss Associates
(“Weiss”) alleges against Cross-Defendants KAISER FOUNDATION HEALTH PLAN, INC.,
(“Kaiser”) AMEC FOSTER. WHEELER ENVIRONMENT & INFRASTRUCTURE, INC,
(“AMEC”) and ROES 1-20, inclusive (collectively, “Cross-Defendants”), as follows:
1 Cross-Complainant Weiss is, and at all relevant times herein was, a California
corporation authorized to do business in the State of California.
2. Plaintiff James Spingola alleges in his First Amended Complaint in this action that
he is, and at all relevant times mentioned herein was, a California resident.
3. Cross-Defendant Kaiser Foundation Health Plan, Inc. is, and ét all relevant times
herein was, a California corporation qualified to do business in and doing business in the State of
California,
4, Cross-Defendant AMEC Foster Wheeler Environment & Infrastructure, Inc. is, and
at all times relevant times was, a Nevada corporation registered to do business in the State of
California.
5. Weiss is ignorant of the true names and capacities of the Cross-Defendants sued
herein as Roes 1 through 20, inclusive, and therefore sues these Cross-Defendants by fictitious
names. Weiss prays leave to amend this Cross-Complaint to allege their true names and capacities
when the same have been ascertained, Weiss is informed and believes and thereupon alleges that
each of the fictitiously-nained Cross-Defendants is responsible in some manner for the
occurrences herein alleged and that Weiss’ damages, as herein alleged, were proximately caused
by such Cross-Defendants.
6. Weiss is informed and believes and thereupon alleges that, at all relevant times
herein, each of the Cross-Defendants was the agent, employee, and/or joint venturer of each of the
xemaining Cross-Defendants and was acting within the purpose, course, and scope of such agency
or employment, and/or pursuant to such joint venture.
7 This action concerns the alleged toxic tort exposure of Mr. Spingola (“Plaintiff”) to
chemicals including tetrachloroethylene (PCE) and trichloroethylene (TCE) while working in the
Distribution Center in the basement of 2130 O’ Farrell Street, San Francisco, California, from 2005
12745.0001/11084818.1 2 :
7 DEFENDANT WEISS ASSOCIATES' CROSS-COMPLAINTOo 6 IN Dw RB YW YD He
YN YY YPN PNY Be ee ewe we ew -
23x ae 8 58S FF FSerWA GREEKS
— 2008 (2130 O° Farrell Street hereinafter referred to as the “Property”).
8. On information and belief, at all relevant times Plaintiff was employed by Kaiser
Foundation Hospitals (“Hospital”), an entity separate from but related to Kaiser.
9 Hospital became the owner of the Property in 1982.
10. Weiss was hired and performed environmental consulting services for the benefit of
Hospital beginning in 1988, and in 1991 designed a groundwater extraction system for Hospital’s
use at the Property.
11, The groundwater extraction system was located in the basement of the Property,
which was not occupied at the time Weiss designed the extraction system. On information and
belief, the Hospital did not inform Weiss that the basement would eventually be staffed with
personnel, Weiss was not retained nor requested to evaluate the safety for personnel working in
the basement of the Property.
12. Weiss subsequently provided environmental consulting services at the Property
under its contract with Kaiser from 1997-2006, Weiss did not perform services at the Property
after 2006.
13. While performing work for Kaiser, Weiss recommended Kaiser investigate the
potential of vapor intrusion at the Property. These discussions started in 2004 and were
documented in a February 2, 2005 memorandum to Kaiser. Weiss followed up on that
-memorandum several times throughout 2005 and 2006 asking Kaiser to approve the scope of work
outlined in the February 2, 2005 memorandum and explaining to Kaiser the benefits of performing
that scope of work. Kaiser did not perform the recommended vapor intrusion investigation
outlined in the February 2, 2005 memorandum until approximately three years laler, in 2008, On
information and belief, Kaiser thereafter evacuated their employees from the basement of the
Property,
14, On information and belief, AMEC was retained and performed environmental
consulting services at the Property in 2007, following Weiss’ work on the Property.
15, On information and belief, Haley & Aldrich, Inc., performed environmental
consulting services at the Property after AMEC, but these services were performed subsequent to
12745,0001/31084818,1 3
DEFENDANT WEISS ASSOCIATES! CROSS-COMPLAINTOo we UM A
the time period during which Plaintiff worked at the Property,
16, Weiss is informed and believes and thereupon alleges that Roes 1 through 20,
inclusive, performed work and/or services for the benefit of owner of Hospital, Kaiser, AMEC,
and/or the Property pursuant to written contracts with Weiss Associates and/or other parties to this
action.
17, : On or about October 19, 2017, Plaintiff filed his Complaint in this action, On or
about November 17, 2017, Plaintiff filed his First Amended Complaint (“FAC”), the operative
complaint, which alleges fraudulent concealment against the Hospital for the presence of toxic
chemicals at the Property, and negligence against Weiss, AMEC, and Haley & Aldrich, Inc., based
on their services at the Property. The FAC alleges Defendants’ work and services at the Property
resulted in toxic tort exposure to Plaintiff of chemicals that caused personal injury damages.
18, On or about January 10, 2018, Plaintiff dismissed the Hospital without prejudice,
19. On or about February 12, 2018, Plaintiff dismissed Haley & Aldrich, Inc. without
prejudice.
20. On or about February 13, 2018, Plaintiff requested the dismissal of AMEC from
this action without prejudice.
21, The FAC is incorporated by reference as if set forth in full for the purpose of
illustrating, but not for the truth of, the allegations asserted therein,
22. Weiss denies that it was in any way negligent, at fault, or otherwise responsible for
any damagoes alleged in the FAC, or that may be proved by Plaintiff. Weiss also denies that any of
its acts or omissions proximately resulted in any injury or damage to Plaintiff. However, if it is
found that any of Plaintiff’s allegations are true, Weiss Associates is informed and believes and
thereupon alleges that any alleged damages resulting therefrom were caused by Cross-Defendants’
acts and/or omissions,
FIRST CAUSE OF ACTIO)
(Equitable Indemnity Against All Cross-Defendants)
23. Weiss realleges and incorporates by reference every allegation contained in
paragraphs | through 21 above.
12748,0001/11084818.1 7 A
7 DEFENDANT WEISS ASSOCIATES' CROSS-COMPLAINT0 Oe WA DA mH BR WY Ye
NN YP NY YPN YN NY we tke ek
ex AG RBS © SF Fe VDRaAaEBRES
24. Weiss Associates denies that it is responsible in any way for the damages alleged in
this action. If Plaintiff sustained damages as alleged in the FAC, those damages were caused by
Cross-Defendants. If Weiss is found liable or responsible for any damages alleged in this action,
it will have been solely as a result of the primary and active negligence, conduct, or other liability
of Cross-Defendants and not of Weiss’ secondary and passive, if any, negligence or other conduct.
25. Weiss is therefore entitled to be indemnified by Cross-Defendants for the full
amount of any loss or judgment paid by Weiss to Plaintiff, including attorneys’ fees, costs, and
any other expenses incurred in the defense of this action.
WHEREFORE, Weiss prays for judgment as set forth below.
SECOND CAUSE OF ACTION
(Contribution Against All Cross-Defendants)
26. Weiss realleges and incorporates by reference every allegation contained in
paragraphs 1 through 24 above.
27. Weiss will be damaged to the extent it must pay any sum, or any sum in excess of a
proportionate amount of its liability, if any, assessed by the trier of fact.
28. Accordingly, if Plaintiff obtains judgment against Weiss , Weiss will be entitled to
equitable contribution from Cross-Defendants proportionate to each Cross-Defendant’s share of
liability, so Weiss may avoid payment of any sum to Plaintiff, or any other party, in excess of
Weiss’ proportionate share of liability, if any, in this action.
WHEREFORE, Weiss prays for judgment as set forth below.
THIRD CAUSE OF ACTION
(Declaratory Relief Against All Cross-Defendants)
29. Weiss realleges and incorporates by reference every allegation contained in
paragraphs 1 through 27 above.
30. An actual and justifiable controversy has arisen and now exists between Weiss and
Cross-Defendants. Weiss contends that Cross-Defendant’s owe a duty to defend and indemnify
Weiss and therefore are legally responsible for, and owe an immediate and continuing duty to
reimburse, Weiss’ costs of defense, investigation, expert consultants, attorneys’ fees, and other
12745.0001/1 10848181 5
: DEFENDANT WEISS ASSOCIATES' CROSS-COMPLAINTexpenses incutred in this action, Weiss further contends that Cross-Defendants owe their
proportionate share of joint liability as to Plaintiff’s claims and allegations in this action,
31. Unless all of the joint and several liabilities, obligations, rights and duties are
determined in this one proceeding, there will be a multiplicity of suits required to ultimately
determine the liabilities, rights, duties and obligations of the parties hereto, all of which can be
determined in the hearing of this one action. In addition, Weiss will be subject to an unreasonable
burden and risk of irrevocable injury if the rights of the respective parties are not determined
herein. 7
WHEREFORE, Weiss prays for judgment as set forth below.
PRAYER FOR RELIEF
Weiss prays for judgment against Cross-Defendants, jointly and severally, as follows:
The First Cause Of Action For Equitable Indemnity
1, For equitable indemnity and damages in an amount according to proof sufficient to
cover Weiss’ necessary and reasonable attorneys’ fees and other legal costs incurred in defending
against the operative pleadings in this action, as well as for any direct or indirect liability by way
of payment of judgment or judgments, and/or payment of settlement or settlements in this case;
2. For costs of suit;
3, For interest as permitted by the Court; and,
4, For such other and further relief as the Court deems just and proper.
The Second Cause Of Action For Contribution
1, For contribution in the amount of Cross-Defendants’ proportionate share of
liability, according to proof;
2. For costs of suit;
3. For interest as permitted by the Court; and,
4, For such other and further relief as the Court deems just and proper.
The Third Cause Of Action For Declaratory Relief
1 For a declaration that Cross-Defendants owe an immediate and continuing duty to
defend and indemnify Weiss in this action, including a continuing duty to reimburse any judgment
12745,0001/11084818,1
6
DEFENDANT WEISS ASSOCIATES’ CROSS-COMPLAINTNoe Ny YM BPN NNN ew we me ~ = om
@ AFD RoHS fF SF FeWDAKDESHE AS
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against Weiss, and Weiss’ costs of defense, investigation, expert consultants, attorneys’ fees, and
other litigation expenses.
2. For a declaration of the respective rights and duties of Weiss and Cross-Defendants
regarding the amount of Cross-Defendants’ proportionate share of any joint liability for Plaintiff's
claims and allegations in this action, including any judgment against Weiss, and Weiss’ costs of
defense, investigation, expert consultants, attorneys’ fees, and other litigation expenses.
3, For costs of suit;
4, For interest as permitted by the Court; and
5. For such other and further relief as the Court deems just and proper.
DATED: March 5, 2018 SEVERSON & WERSON
A Professional Corporation
By: CL, b-
Selene E. Plastiras
Attorneys for Defendant AGUATIERRA
ASSOCIATES, INC., dba WEISS ASSOCIATES
}2745.0001/11084818.1 7 et
DEFENDANT WEISS ASSOCIATES' CROSS-COMPLAINTOo Oe BWA wh BR WwW Be
NoN wy YPN NNN He ew ew ee ome
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PROOF OF SERVICE
James Spingola v, Kaiser Foundation Hospitals, et al.
San Francisco County Superior Court, Case No. CGC-17-562009
At the time of service, I was over 18 years of age and not a party to this action, Iam
employed in the County of San Francisco, State of California. My business address is One
Embarcadero Center, Suite 2600, San Francisco, CA 94111.
On March 5, 2018, I served true copies of the following document(s):
DEFENDANT AGUATIERRA ASSOCIATES, INC., DBA WEISS ASSOCIATES'
CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND
DECLARATORY RELIEF
on the interested patties in this action as follows:
SEE ATTACHED SERVICE LIST
BY MESSENGER SERVICE: I provided such document(s) to a professional messenger
service for service. (4 declaration by the messenger shall accompany this Proof of Service or be
contained in the Declaration of Messenger below.)
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on March 5, 2018, at San Francisco, California.DECLARATION OF MESSENGER
I personally delivered the envelope or package received from the declarant above to the
persons at the addresses listed in the service list. (1) For a party represented by an attorney,
delivery was made to the attorney or at the attorney's office by leaving the documents in an
envelope or package, which was clearly labeled to identify the attomey being served, with a
receptionist or an individual in charge of the office. (2) For a party, delivery was made to the party
or by leaving the documents at the party's residence with some person not less than 18 years of age
between the hours of sight in the morning and six in the evening.
At the time of service, I was over 18 years of age, 1am not a party to the above-referenced.
legal proceeding,
I served the envelope or package, as stated above, on (date):
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Date: oe
(NAME OF DECLARANT) “(SIGNATURE OF DECLARANT)Co WU A wm RD Pe
Boe oe
np = So
13
SERVICE LIST
James Spingola y. Kaiser Foundation Hospitals, et al.
San Francisco County Superior Court, Case No. CGC-17-562009
Khaldoun A. Baghdadi, Esq. Attomeys for Plaintiff
Walkup, Melodia, Kelly & ‘Sohoenberger, APC JAMES SPINGOLA
650 California St., 26th Floor
San Francisco, CA 94108-2615
Tel: 415-981-7210
Email: kbaghdadi(@walkuplawoffice,com
Anthony J. Carucci, Esq. Attorneys for Defendant
Snell & Wilmer LLP, AMEC Foster Wheeler Environment &
600 Anton Blyd., Suite 1400 Infrastructure
Costa Mesa, CA 92626
Tel: 714-427-7000EXHIBIT CIN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JAMES SPINGOLA,
Plaintiff,
-vs- CASE NO.
CGC-17-562009
KAISER FOUNDATION HOSPITALS,
AGUATIERRA ASSOCIATES, INC., dba
WEISS ASSOCIATES, AMEC
FOSTER-WHEELER ENVIRONMENTAL &
INFRASTRUCTURE, INC., HALEY &
ALDRICH, INC., DOES ONE through
ONE HUNDRED,
Defendants.
VIDEOTAPED DEPOSITION OF RICHARD WEISS
Taken before JOAN GRIER
Certified Shorthand Reporter
State of California
C.S.R. License No. 8958
June 20, 2018
s CRANGLE
REPORTING SERVICES
www.cranglereporting.com | (510) 653-1312VIDEOTAPED DEPOSITION OF RICHARD WEISS
24
25
some of the concentrations for our monitoring and
reporting were above ESLs, or it was not part of our
scope of work, we often would -- we try to look at that
for our clients, and we often would tell them that they
may have an issue and should evaluate it.
MR. CHOU: Q. Mr. Weiss, you've been deposed
many times before, so you understand that the oath that
the court reporter gave to you, the oath that you took,
is the same oath to tell the truth that you would have
to give if you were testifying in court. Yes?
Q. I know we've gone into some subjects already.
I want to offer to you that if you don't understand my
question -- and I think you've done this before
already -- please, ask me to clarify the question.
Can you do that?
A. Yes.
Q. If you answer a question, I'm going to assume
that you both understood the question and that you're
giving a truthful answer.
Is that fair?
A. Yes.
(Plaintiff's Exhibit 1 was marked for
identification.)
MR. CHOU: Q. I'm handing you what I've marked
25
www.cranglereporting.com | (510) 653-1312
» CRANG
LE
REPORTING SERVICESVIDEOTAPED DEPOSITION OF RICHARD WEISS
24
25
as Exhibit 1, which is the Notice of Person Most
Qualified Deposition.
I understand -- so go ahead and take a look at
the second page. There are four categories that I
understand that you're being produced to testify about.
A. Um-hmm.
Q. Category 1 is: "Aguatierra Associates's
activities at and around the property known both as
2130 O'Farrell Street and as 2241 Geary Street at any
tame."
Are you prepared to testify as the person most
Gualified on that subject?
Ba £E8<
Q. Topic No. 2. is: "The testing of and testing
results for air, soil, and/or water at or around the
property known both as 2130 O'Farrell Street and as
2241 Geary Street for chemicals including solvents,
volatile organic compounds, and/or any other chemicals
potentially harmful to human health at any time."
Are you prepared to testify as the person most
qualified on behalf of Weiss Associates on that subject?
Ao eR.
Q. Category No. 3 is: "The testing and testing
results of air, soil, and/or water within a five-block
radius of the property known both as 2130 O'Farrell
26
www.cranglereporting.com | (510) 653-1312
Fy CRANGLE
REPORTING SERVICESVIDEOTAPED DEPOSITION OF RICHARD WEISS
1 Street and as 2241 Geary Street for chemicals including
2 solvents, volatile organic compounds, and/or any other
3 chemicals potentially harmful to human health at any
4 time."
5 Are you prepared to testify as the person most
6 qualified in that subject?
Zz A. Yes. Although, I don't know what this
8 five-block radius -- where that comes from.
9 Q. Sure.
10 I meant to capture -- because I understand that
11 not all of the monitoring wells involved in this project
12 are physically at or beneath 2130 O'Farrell Street. Is
13. that correct?
14 A. That's my understanding.
15 Q. So there are monitoring wells that are some
16 blocks away from the actual building 2130 O'Farrell?
17 A. Yes.
18 Q. And I hope to encompass the testing and testing
19 results of those wells in your testimony today as well.
20 Are you prepared to testify about that?
21 A. Yes.
22 Q. Category 4 is: "Any and all ground water
23 extraction systems of any kind at the property known
24 both as 2130 O'Farrell Street and as 2241 Geary Street
25 from any date."
27
www.cranglereporting.com | (510) 653-1312
s CRANGLE
REPORTING SERVICESVIDEOTAPED DEPOSITION OF RICHARD WEISS
1 MR. ERICKSEN: Objection. Vague and ambiguous.
2 lacks foundation. Calls for speculation. Incomplete
3 hypothetical. Assumes facts not in evidence.
4 Particularly that there's one over the other that can be
5 stated on any comprehensive basis.
6 THE WITNESS: We believe we are protecting
7 human health and the environment by helping our clients
8 meet the regulatory standards. It's not up to us to
9 determine what is safe or unsafe exposure. It's -- it's
10 a very complicated process. I mean, again, you're
11 really oversimplifying a very complex situation.
12 MR. CHOU: Q. The Water Board -- you had
13 talked about this earlier.
14 The Water Board issues screening levels,
15 correct?
16 A. Pardon?
17 Q. The Water Board issues screening levels, which
18 I think they're now called environmental screening
19 levels?
20 A. Yes.
21 Q. Earlier you had said, when you get levels at a
22. sit
Preview
28 BUTY & CURLIANO LLP. bie rememeer a ‘310.287.8000 JASON J. CURLIANO [SBN 167509] MARC BRAINICH [SBN 191034] JOHN T. SHEEHAN [SBN 273994] BUTY & CURLIANO LLP ELECTRONICALLY 516 - 16" Street FILED Oakland, CA 94612 Superior Court of California, Tel: 510.267.3000 County of San Francisco Fax: 510.267.0117 08/21/2018 Email: jcurliano@butycurliano.com Clerk of the Court mbrainich@butycurliano.com BY OLARD A ASO BAe jsheehan@butycurliano.com. Deputy Clerk Attorneys for Cross-Complainant and Cross-Defendant: KAISER FOUNDATION HEALTH PLAN, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO JAMES SPINGOLA, ) No. CGC-17-562009 ) Plaintiff, ) DECLARATION OF JOHN SHEEHAN v. ) IN SUPPORT OF KAISER ) FOUNDATION HEALTH PLAN, KAISER FOUNDATION HOSPITALS, | ) INC”S MOTION FOR SUMMARY AGUATIERRA ASSOCIATES, INC. dba ) JUDGMENT WEISS ASSOCIATES, AMEC FOSTER- ) WHEELER ENVIRONMENTAL & ) Date: October 9, 2018 INFRASATUCTURE, INC., HALEY & ) Time: 9:30 a.m. ALDRICH, INC., DOES ONE through ONE +) ~Dept.: 302 HUNDRED, ) ) [Hearing date per Court order on August 7, Defendants. ) 2018] 2 ) ) Complaint Filed: October 19, 2017 AND RELATED CROSS-CLAIMS ) Trial Date: October 22, 2018 ) I, John T. Sheehan, declare as follows: 1. lam an attorney duly licensed to practice law in the State of California and an associate with the law firm of Buty & Curliano LLP, attorneys of record for Kaiser Foundation Health Plan, Inc. (“KFHP”). Iam one of the attorneys at my firm responsible for handling this matter and, in that capacity, have personal knowledge of the facts set forth in this declaration. If called upon as a witness, I would and could competently testify as to the facts set forth in this declaration. 1 DECLARATION OF JOHN SHEEHAN IN SUPPORT OF KAISER FOUNDATION HEALTH PLAN, INC.’S MOTION FOR SUMMARY JUDGMENT28 2. Attached hereto as Exhibit A is a true and correct copy of the First Amended Complaint (“FAC”) for Plaintiff James Spingola’s (“Plaintiff”) personal injury action against Aguatierra Associates, Inc. dba Weiss Associates (“Weiss”), filed on November 17, 2017. 3. Plaintiff's FAC alleges Weiss’ work and services at the property at 2130 O’Farrell Street, San Francisco, California (“O’Farrell Street Property”) resulted in toxic exposures to Plaintiff of chemicals that caused personal injury and damages. Plaintiff's FAC does not make any claim against KI'HP or allege that KFHP is liable in any way for Plaintiff's personal injuries at issue in his personal injury action. 4. Attached hereto as Exhibit B is a true and correct copy of Weiss’ Cross-Complaint against KFHP seeking equitable indemnity, contribution and declaratory relief, filed on March 5, 2018. 5. In the Cross-Complaint, the only factual allegation Weiss makes regarding KFHP’s conduct in connection with the Contract is that Weiss recommended KFHP investigate potential vapor intrusion in February 2005 and that KFHP did not investigate this issue until 2008 when it subsequently evacuated its employees from the Property. Weiss does not allege that the “sole” negligence of KFHP resulted in Plaintiffs toxic exposures and injuries alleged in the FAC. 6. Richard Weiss, owner of Weiss was deposed in this action on June 20, 2018. Mr. Weiss was designated by Weiss as their person most qualified regarding Weiss’ work at the property at O’Farrell Street Property at issue in the personal injury action. At his deposition, Mr. Weiss testified that Weiss had approximately 50 employees between 1997 and 2007. Mr. Weiss testified Weiss did not perform asbestos work at the O’Farrell Street Property. Attached hereto as Exhibit C is a true and correct copy of excerpts from Mr. Weiss’ deposition transcript. 7. Scott Bourne, a former employee of Weiss was deposed in this action on July 11, 2018. Mr. Bourne described two memoranda he authorized in 2004 and 2005 addressed to Kaiser Foundation Hospitals employee Helen Ku regarding Weiss’ work at the O’Farrell Street Property. Attached hereto as Exhibit D is a true and correct copy of excerpts from Mr. Bourne’s deposition transcript. Attached hereto as Exhibit E are true and correct copies of the two memoranda shown to Mr. Bourne as exhibits during his deposition. 2 DECLARATION OF JOHN SHEEHAN IN SUPPORT OF KAISER FOUNDATION HEALTH PLAN, INC.’S MOTION FOR SUMMARY JUDGMENT1 I declare, under penalty of perjury under the laws of the State of California, that the 2 || foregoing is true and correct. Executed this 21st day of August, 2018, at Oakland, California. JOHN SHEEHAN 28 BUTY & CURLIANOLLP Bia tora Street 3 cAsset2 ont ae Pree DECLARATION OF JOHN SHEEHAN IN SUPPORT OF KAISER FOUNDATION HEALTH PLAN, INC.’S MOTION FOR SUMMARY JUDGMENTEXHIBIT A16 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL, CORPORATION: 650.CALIFORNIA STREET, 26" FLOOR ELECTRONICALLY SAN FRANCISCO, CALIFORNIA 94108-2615. FILED Ts (415) 981-7210» Fs (415) 391-6965 Isls tabdyk lf extant County of San Francisco KHALDOUN A, BAGHDADI (State Bar #190111) 11/17/2017 kbaghdadi@walkuplawoffice.com Clerk of the Court JUSTIN CHOU Gtate Bar #279137) +111 pee ciork jchou@walkuplawoffice,com ATTORNEYS FOR JAMES SPINGOLA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JAMES SPINGOLA, Case No. CGC-17-562009 Plaintiff, First Amended Complaint for Jaintif Damages and Demand for Jury rial Vv. KAISER FOUNDATION HOSPITALS, 1. Fraudulent Concealment, AGUATIERRA ASSOCIATES, INC. dba WEISS ASSOCIATES, AMEC FOSTER- WHEELER ENVIRONMENTAL & INFRASTRUCTURE, INC., HALEY & ALDRICH, INC., DOES ONE through ONE HUNDRED, 2. Negligence Defendants. COMES NOW plaintiff James Spingola and alleges as follows: The Parties A Plaintiff James Spingola is an individual and a resident of the State of California. 2. Defendant Kaiser Foundation Hospitals is a non-profit entity registered. to dé business in the State of California. Kaiser Foundation Hospitals is headquartered in and, upon information and belief, has its principal place of business in Oakland, California. 1 First Amended Complaint for Damages.and Demand, for Jury Trial«« Case No. CGC-17-5620093. Defendant Kaiser Foundation Hospitals and/or Does One through Twenty own the property 2130 O’Farrell Street in the County of San Francisco, State of California. 4, Defendant Aguatierra Associates, Inc. dba Weiss Associates (hereinafter “defendant Weiss Associates”) is an environmental firm with its headquarters and its principal place of business in Emeryville, California. 5. AMEC Foster-Wheeler Environmental & Infrastructure, Inc. is a corporation registered to do business in the State of California. Its headquarters is in oO YN OA PF Oo WH ew Alpharetta, Georgia. 10 6. Defendant Haley & Aldrich, Inc. is a corporation registered to do 11 || business in the State of California. It is headquartered in Burlington, Massachusetts, 12 7. A certificate of merit.is filed herewith pursuant to Code of Civil 18 || Procedure § 411.35(b)(1). 14 8. The true names, capacities, and involvement, whether individual, 15 || corporate, governmental, or associate of the defendants named herein as Doe, are 16 || unknown to plaintiff who therefore sues said defendants by such fictitious names. 17 || Plaintiff prays leave to amend this complaint to show their true names and 18 || capacities, when the same have been finally determined, 19 9. Plaintiff is informed and believes, and upon such information and belief 20 || alleges, that each of the defendants designated herein as Doe is negligently, strictly 21 || liable, professionally negligent, or otherwise legally responsible in some manner for 22 ||the events and happenings referred to here, and is negligently or otherwise legally 23 || vesponsible for the damages incurred by plaintiff. 24 10. At all times herein, each and every of the defendants was the agent, 25 || servant, partner, joint venturer, employee, and/or franchisee of each of the other 26 || defendants, and éach was at all times acting within the course and scope of such 27 || agency, service, employment, joint venture, partnership, and/or franchise. 28 “A aw oFficés oF Wana, MEvopis eu SsclionNouRGua Reena contoerinn 2 San FRIESE. CA 208 First Amended Complaint for Damages and Demand for Jury Trialom rR oa es wo YH py wy Y NN MW Be BR Be Be ee Be eB Be oe on 8k ON EF SC G6 FAD APR OO NY HK OD Law Girices on Het SAN FRANCISCO, CA 94108 tans 900 7210 Preliminary Allegations 11. In 1982, defendant Kaiser Foundation Hospitals and Does One through Twenty purchased the property at 2130 O'Farrell Street in the County of San Francisco, State of California. 12, When it purchased this property, defendant Kaiser Foundation Hospitals and Does One through Twenty knew or had constructive knowledge that the property and/or the area near the property had been the location of Sanitary Laundry Company, Sanitary Laundry & Cleaners or a. similar commercial operation. These defendants also had actual or constructive knowledge that Sanitary Laundry Company, Sanitary Laundry & Cleaners, and/or a similar commercial operation operated a commercial dry laundry cleaning or similar business at and/or near this address, and that these businesses used, stored, disposed of, and/or discarded dangerous toxic chemicals into the subsurface soil and groundwater beneath and around the property at 2130 O'Farrell Street. Defendant Kaiser Foundation Hospitals and Does One through Twenty had actual or constructive knowledge that the dangerous toxic chemicals included carcinogenic solvents such as tetrachloroethylene (PCE) and trichloroethylene (TCE), 13. From 1989 to 1991, defendant Kaiser Foundation Hospitals and Does One through Twenty demolished the building at 2130 O'Farrell Street and erected a new structure. This new building was a parking structure above ground, but beneath it there was an enclosed basement, On or before this time, defendant Kaiser Foundation Hospitals and Does One through Twenty had actual or constructive knowledge that the ground beneath 2130 O'Farrell Street contained toxic- contaminated groundwater and soil, Moreover, these defendants had actual or constructive knowledge that toxic chemical contamination of groundwater and/or subsurface soil could lead to dangerous toxic-contaiminated indoor air. 14, During or around 1991, defendants Weiss Associates atid Does Twenty- One through Thirty were hired, contracted, retained, and/or otherwise tasked by 3 First Amended Complaint: for Damages and Demand for Jury Trialoo Ne oe PF Oo WY Nw ee we we ee Be oe eR Ke SO MW NDR RF O&O DY RF SO 22 LAW OFF108S OF defendant. Kaiser Foundation Hospitals and Does One through Twenty with designing, drilling, constructing, and operating a groundwater extraction system at: 2130 O'Farrell Street, This groundwater extraction system drew groundwater up from beneath the building, removed solvents from it, and pumped it back beneath the surface. The pump room for the groundwater extraction system was located in the basement of 2130 O'Farrell Street. 15. The design, drilling, construction, and operation of this groundwater extraction, system was flawed, The groundwater wells and/or their associated machinery were carelessly, negligently, and recklessly designed, assembled, implemented, placed, sealed, operated, and/or otherwise created and employed in such a way that they permitted dangerous toxic chemicals like PCE and TCE in the groundwater and/or the subsurface soil to infiltrate the indoor air of the basement of 2130 O'Farrell Street. 16. From 2005 to 2008, plaintiff James Spingola worked in defendant Kaiser Foundation Hospitals and/or Does One through Twenty’s “Distribution Center” which was located in the basement of 2130 O'Farrell Street. During those years, he was present in, worked in, and breathed the toxic-contaminated indoor air of the basement of 2130 O’Farrell Street. 17. From the time of the construction of the building to the present, defendant Kaiser Foundation Hospitals and Does One through Twenty hired, contracted, retained, and/or otherwise tasked defendants Weiss Associates, AMEC Foster:Wheeler Environmental & Infrastructure, Inc., Haley & Aldrich, Inc., and Does Twenty-One through Fifty to perform environmental testing at the subject property. Testing revealed to defendants that there were levels of dangerous toxic chenticals, including carcinogenic solvents, in the indoor air that were dangerous to human health. Defendants Weiss Associates, AMEC Foster-Wheeler Environmental & Infrastructure, Inc., Haley & Aldrich, Inc., and Does Twenty-One through Fifty informed defendant Kaiser Foundation Hospitals and Does One through Twenty of 4 First Amended Complaint for Damages and Demand for Jury TrialAW OFFICES OF Watiwe, MELop! SCH oon Dak Oo DY i o 11 12 13 14 15 16 17 18 19 20 21 22 23 24. 25 26 27 28 1A, KELL ENBERGER ARHONSOO¥AL EEATIOS 30 CALFORNA STREET aera SAN FRANCISCO, CA 98108, (03) 9817210 their findings, Despite these notifications, a prolonged and unreasonable amount of time passed between the discovery of these dangerous levels of these toxic chemicals and when defendants evacuated occupants of 2180 O'Farrell Street. During this time, the occupants, including plaintiff James Spingola, were further exposed to dangerous toxic chemicals at the subject property. 18. By reason of the premises, and as a substantial, legal, and proximate cause of defendants’ actions, plaintiff James Spingola developed metastatic renal cell carcinoma and suffered other injuries presently undiagnosed. Plaintiff is informed and believes that, some of these injuries will be permanent. First. Cause of Action [Fraudulent Concealment of Injury - Defendant Kaiser Foundation Hospitals and Does One through Twenty] 19. Plaintiff hereby incorporates by this reference all of the above allegations as if set out in full in this First Cause of Action. 20. While working for defendant Kaiser Foundation Hospitals and Does One through Twenty, and while working for said defendants at 2130 O'Farrell Street, plaintiff James Spingola was injured. His injury, caused by his presence in, occupancy of, and/or breathing in the enclosed basement space at 2130 O’Farrell Street, includes metastatic renal cell carcinoma. Plaintiff is informed and believes these injuries will be permanent. 21. At all relevant times herein defendants Kaiser Foundation Hospitals and Does One through Twenty knew that there were dangerous levels of dangerous toxic chemicals, including carcinogenic solvents, at 2130 O’Farrell Street. These defendants also knew that plaintiff James Spingola was injured by his exposure to said dangerous toxic chemicals while working at 2130 O'Farrell Street. Nonetheless, thésé defendants fraudulently concealed the existence of plaintiff James Spingola’s injury, and fraudulently concealed the connection between the injury and his employment. This fraudulent concealment proximately caused and aggravated 5 First Amended Complaint for Damages and Demand for Jury Trialofr Yon fF ww DY Noe MW NM EP BR Re we ee oe ew Re oe os = S © &® IAA AR WH NY HE DS 24 aw ornets of wana, Mmopi, rouse ‘@scuigeNpencen SSOCCALFORNIA STREET SAN FRANEBEO CA, 94108 4415) 881=7210 plaintiff James Spingola’s injury, and this aggravation caused additional serious, permanent, and/or irreparable injury to plaintiff James Spingola. 22. Because defendant Kaiser Foundation Hospitals and Does One through Twenty fraudulently concealed this injury and aggravation of the injury, plaintiff James Spingola has been generally and specially damaged in a sum in excess of the tminimum jurisdictional limits of this court. WHEREFORE, plaintiff prays judgment against defendants, and each of them, as hereinafter set forth, Second Cause of Action [Negligence —- Defendants Weiss Agonistes and Does Twenty-One through irty 23. Plaintiff hereby incorporates by this reference all of the above allegations as if set out in full in this Second Cause of Action. 24. After the construction of the building at 2130 O'Farrell Street, defendants Weiss Associates and Does Twenty-One through Thirty were hired, contracted, retained, and/or otherwise tasked with performing environmental testing at 2130 O'Farrell Street. Defendants Weiss Associates and Does Twenty-One through Thirty were hired, contracted, retained, and/or otherwise tasked with identifying dangerous environmental threats, including but not limited to dangerous toxic chemicals in the groundwater, subsurface soil, and indoor air beneath, in and/or near 2130 O’Farrell Street. These defendants carelessly, unreasonably, and recklessly failed to identify the dangerous toxic chemicals in the groundwater, subsurface soil, and indoor air in and/or near 2130 O'Farrell Street. Moreover, these defendants failed to accurately determine, assess, and evaluate the danger presented by the toxic chemicals present in or néat 2180 O’Farrell Street. 25. At all relevant times herein, defendants Weiss Associates and Does Twenty-One through Thirty were hired, contracted, retained, and/or otherwise tasked with designing, drilling, constructing, and operating a groundwater extraction 6 First Amended Complaint for Damages and Demand for Jury Trialyemediation system at 2130 O'Farrell Street. woe 26. The design, drilling, construction, and operation of this groundwater extraction system was flawed. Namely, the groundwater wells and/or their associated machinery were carelessly, negligently, and recklessly designed, assembled, implemented, placed, sealed, operated, and/or otherwise created and used in such a way that.they permitted dangerous toxic chemicals like PCE and TCE in the groundwater and/or the subsurface soil to infiltrate the indoor air of the basement of 2130 O'Farrell Street. 27. ASeptember 8, 2008 letter to the California Regional Water Quality Oo onrwioanw fp wo Control Board summarizés some of these failures: oO i By its design and construction, there are locations where PCE vapors off gassing from groundwater can enter the basement from various elements of the system, There are vent holes in the-extraction and monitoring wells that allow air pressure in the well to equilibrate with air pressure in the basement, but also allow PCE vapors to enter the basement. A preferential pathway assessment was Implemented to evaluate whether th Ing and extraction wells were conduits for vapor intrusion. PCE wes detected at con nging from 28 to 500 ‘ugiin® in well boxes and PVC conduits in the floor slab ahd u 000 tig/m* in monitoring. moon o fe a e oH 8 | = = = a S ‘ reguits of the preferential pathway a sirient, it Was concluded that the: nd extraction wells were acting as vapor intrusion conduits allowing PCE vapors to asement, Because of this, it was concluded that the existing pumping system ‘should be decommissioned and moved to an alternative location and that'a replacement pumping system should be installed in the upper groundwater zone to continue extraction of contaminated groundwater. The replacement pumping system will be located outside of the building located at 2130 O'Farrell Street. o eo oe © oe a tw 3 28. At all relevant times herein, defendants Weiss Associates and Does bb Ww Ny Twenty-One through Thirty were hired, contracted, retained, and/or otherwise tasked with monitoring, assessing, evaluating, measuring, and/or otherwise bo 6. overseeing the environment in and around 2180 O'Farrell Street. Said defendants Do e were responsible for regularly or periodically monitoring, assessing, evaluating, wo ot 26 || measuring, and/or otherwise overséeing the environment in and around 2130 27 || O’Farrell Street between 1991 and 2007. 28 29. During this time period, these defendants carelessly, unreasonably, and LAW OFFICES OF Ano ennt SOMES 7 san RAR RCO.A 08 First Amended Complaint for Damages and Demand for Jury Trialwo Ne Cowen na a me o 11 LAW OFFICES OF SAN FRANCISCO, CA $4108 Ways 30te7210 recklessly failed to identify the threat of dangerous toxic chemicals in and/or near 2130 O'Farrell Street, and/or failed to appreciate the magnitude of this threat. Having carelessly, unreasonably, and negligently failed to identify this threat, and/or to appreciate the magnitude of this threat, defendants Weiss Associates and Does Twenty-One through Thirty did not take reasonable actions to address the threat of dangerous toxic chemicals to individuals including plaintiff James Spingola, such as pbut-not limited to: informing defendants Kaiser Foundation Hospitals and Does One through Twenty of said threat, informing other individuals and/or entities responsible for the ownership, maintenance, and/or control of 2180 O'Farrell Street of said threat, warning individuals entering or occupying 2130 O'Farrell Street of said threat, evacuating individuals from 2180 O’Farrell Street, and/or notifying the proper authorities of said threat to the extent required by law. In the alternative, to the extent that such actions were taken, there was a careless, unreasonable, and reckless delay in taking such actions which was a substantial cause of the injuries described herein. 30, Each of the above-described actions and omissions was an independent, substantial, and legal cause of the injury to plaintiff James Spingola, including metastatic renal cell carcinoma and other injuries not yet. diagnosed. 31. By reason of the premises, plaintiff James Spingola was generally and specially damaged in an amount in excess of the jurisdictional limits of this court. WHEREFORE, plaintiff prays judgment against defendants, and each of them, as hereinafter set forth. Third Cause of Action [Negligence - AMEC Foster-Wheeler Environmental & Infrastructure, Inc., defendant Haley & Aldrich, Inc., and Does Thirty-One through Fifty] 82, Plaintiff hereby incorporates by this reference all of the above allegations as if set out in full in this Third Cause of Action. 33. Following the construction of the building at 2130 O'Farrell Street, 8 First Amended Complaint for Damages and Demand for Jury Trial19 LAW OFFICES OF (50 CALIFORNIA STREET 38 SAN FRANCISCO, CA 93108 Hons) 981-7210 AMEG Foster-Wheeler Environmental & Infrastructure, Inc., Haley & Aldrich, Inc., and Does Thirty-One through Fifty were hired, contracted, retained, and/or otherwise tasked with performing environmental testing at 2130 O'Farrell Street. AMEC Foster-Wheeler Environmental & Infrastructure, Inc., defendant Haley & Aldrich, Inc., and Does Thirty-One through Fifty were hired, contracted, retained, and/or otherwise tasked with identifying dangerous environmental threats, including but not limited, to dangerous toxic chemicals in the groundwater, subsurface soil, and jndoor air beneath, in and/or near 2130 O'Farrell Street. Said defendants carelessly, unreasonably, and, recklessly failed to identify the dangerous toxic chenticals in the groundwater, subsurface soil, and indoor air in and/or near 2130 O'Farrell Street, or in the alternative, failed to accurately determine, assess, and evaluate the dangerousness of the toxic chemicals present in or near 2130 O’Farrell Street. 84. At.all relevant times herein, AMEC Foster-Wheeler Environmental & Infrastructure, Inc., Haley & Aldrich, Inc., and Does Thirty-One through Fifty were hired, contracted, retained, and/or otherwise tasked with monitoring, assessing, evaluating, measuring, and/or otherwise overseeing the environment.in and around 2180 O’Farrell Street. Said defendants were responsible for regularly or periodically monitoring, assessing, evaluating, measuring, and/or otherwise overseeing the environment in and around 2130 0’Farrell Street during at least the period between 2007 and the present. 35. During this time period, these defendants carelessly, unreasonably, and recklessly failed to identify the threat of dangerous toxic chemicals in and/or near 2130.O’Farrell Street, and/or failed to appreciate the magnitude of this threat. Having failed to identify this threat, and/or to appreciate the magnitude of this threat, AMEC Foster-Wheeler Environmental & Infrastructure, Inc. and Does Thirty-One through Forty did not take reasonable actions to address the threat of dangerous toxic. chemicals to individuals including plaintiff James Spingola, such as but not limited to: informing defendants Kaiser Foundation Hospitals and Does One 9 First Amended Complaint for Damages and Demand for Jury Trial1 LAW OFFICES OF WaLKUE, Metopis, KEY ENBERGE: through Twenty of said threat, informing other individuals and/or entities responsible for the ownership, maintenance, and/or control of 2130 O'Farrell Street of said threat, warning individuals entering or occupying 2180 O'Farrell Street of said threat, evacuating 2130 O'Farrell Street, and/or notifying the proper authorities of said threat to the extent required by law. In the alternative, to the extent that such actions were taken, there was a careless, unreasonable, and reckless delay in giving such information and/or warning which was a substantial cause of the injuries described herein. 36. Each of the above actions and omissions was an independent, substantial, and proximate cause of the injury to plaintiff James Spingola, including his injury of metastatic renal cell carcinoma and other injuries not yet diagnosed. 37. By reason of the premises, plaintiff James Spingola was generally and specially damaged in an amount in excess of thé jurisdictional limits of this court, Ww A \N A \\ AN A WA \“~ A \\ \N \\ WW AN . 10 First Amended Complaint for Damages and Demand for Jury TrialLAW OFFICES OF SAN FRANCISCO. CA 92108, Wis SerazIe WHEREFORE, plaintiff prays judgment against defendants, and each of them, as follows: a. For general (non-economic) damages, in an amount to be proven at trial; b. For special and economic damages according to proof, in an. amount to be proven at trial; G For costs of suit incurred herein; d. For pre-judgment and post-judgment interest as provided by law; and & For such other and further relief as the court deems just and proper, Dated: November 17, 2017 WALKUP, MELODIA, KELLY & SCHOENBERGER By: oo KHALDOUN'A. BAGHDADI JUSTIN CHOU Attorneys for Plaintiff 11 First Amended Complaint for Damages and Demand for Jury Trialona ron es Ww NY nw o ll ponriook SANFRAREIKCO, CA 94108 TAS BLEND DEMAND FOR JURY TRIAL Plaintiffhereby demands a jury trial. Wa.kup, MELODIA, KELLY & SCHOENBERGER Dated: November 17, 2017 KHAEBOUN A. BAGHDADI JUSTIN CHOU Attorneys for Plaintiff 12 First Amended Complaint for Damages'and Demand for Jury Trialoc oN OO RB Oo DY mp wy sy YN YM Be Be Be BP BP Be BP BP BP a fF © Me HF FS Oe I Be RR Oo DY BD 26 LAW OFFICES OF a1) SATIN, PROOF OF SERVICE Spingola v. Kaiser Foundation Hospitals Case No, CGC-17-562009 At the time of service, I was over 18 years of age and not a party to this action. Iam employed in the City and County of San Francisco, State of California. My business address is 650 California Street, 26th Floor, City and County of San Francisco, CA 94108-2615. On the date set forth below, I caused to be served true copies of the following document(s) described as: FIRST AMENDED COMPLAINT ee AND DEMAND FOR JURY to: Anthony J. Carucci. Attorneys for Defendant AMEC Foster Snell & Wilmer L.L.P. Wheeler Environmental & 600 Anton Boulevard, Suite 1400 Infrastructure, Inc. Costa Mesa, CA 92626-7689 Tel: 714.427.7513 Main: 714-427-7000 Fax: 714.427.7799 Email: acarucci@swlaw.com; sarmienta@swlaw.com Jason Curliano Attorneys for Defendant Kaiser Buty & Curliano LLP Foundation Hospitals 516 16th Street Tel: (5610) 267-3000 Oakland, CA 94612 Fax: (610) 267-0117 Email: icurlianc@butycurliano.com Brooke H. Anderson Attorneys for Defendant Haley & Aldrich, Gordon & Rees LLP ne. 275 Battery Street, Suite 2000 Tel: (415) 875-4252 San Francisco, CA 94111 Fax: (415) 986-8054 Email: banderson@ersm.com BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Walkup, Melodia, Kelly & Schoenberger for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at San Francisco, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 21, 2017, at San Francisco, California.© ® IN ORT RB wo DD bDwmny YY YW YD ee ee Be ee oe ee oR a a BR CNY BF FCO ODA FARO DES 27 Law oFnices OF SAN FRANCISCO, CA 94100 iin Ww Phat i MirandaEXHIBIT BDAVID A. ERICKSEN (State Bar No, 153923) daeWsevetson.com JOHANNA: M. BERTA (State Bar No. 221376) jinb@severson.com SBLENE.E. PLASTIRAS (State Bar No. 294908) sep@severson.com SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 94111 Telephone; (415) 398-3344 Facsimile; (415) 956-0439 Attorneys for Defendant AGUATIERRA ASSOCIATES, INC,, dba WEISS ASSOCIATES SUPERIOR. COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO JAMES SPINGOLA, Plaintiff, vs. KAISER FOUNDATION HOSPITALS, AGUATIERRA ASSOCIATES, INC., dba WEISS ASSOCIATES, AMEC FOSTER WHEELER PLC, AMEC FOSTER- WHEELER NORTH AMERICA, HALEY & ALDRICH, INC., DOES ONE through ONE HUNDRED, Defendants. AGUATIERRA ASSOCIATES, INC., dba WEISS ASSOCIATES, Cross-Complainant, VSi KAISER FOUNDATION HEALTH PLAN, INC,, AMEC FOSTER WHEELER. ENVIRONMENT & INFRASTRUCTURE, INC.,, ROES ONE through TWENTY, Kiros Deflendianits. 12745,0001/1 1084818, -| Case No, CGC-17-562009 DEFENDANT AGUATIERRA ASSOCIATES, INC., dba WEISS ASSOCIATES’ CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF Action Filed; Trial Date: October 19, 2017 None Assigned DEFENDANT WEISS ASSOCIATES! CROSS-COMPLAINTDefendant and Cross-Complainant Aguatierra Associates, Inc, dba Weiss Associates (“Weiss”) alleges against Cross-Defendants KAISER FOUNDATION HEALTH PLAN, INC., (“Kaiser”) AMEC FOSTER. WHEELER ENVIRONMENT & INFRASTRUCTURE, INC, (“AMEC”) and ROES 1-20, inclusive (collectively, “Cross-Defendants”), as follows: 1 Cross-Complainant Weiss is, and at all relevant times herein was, a California corporation authorized to do business in the State of California. 2. Plaintiff James Spingola alleges in his First Amended Complaint in this action that he is, and at all relevant times mentioned herein was, a California resident. 3. Cross-Defendant Kaiser Foundation Health Plan, Inc. is, and ét all relevant times herein was, a California corporation qualified to do business in and doing business in the State of California, 4, Cross-Defendant AMEC Foster Wheeler Environment & Infrastructure, Inc. is, and at all times relevant times was, a Nevada corporation registered to do business in the State of California. 5. Weiss is ignorant of the true names and capacities of the Cross-Defendants sued herein as Roes 1 through 20, inclusive, and therefore sues these Cross-Defendants by fictitious names. Weiss prays leave to amend this Cross-Complaint to allege their true names and capacities when the same have been ascertained, Weiss is informed and believes and thereupon alleges that each of the fictitiously-nained Cross-Defendants is responsible in some manner for the occurrences herein alleged and that Weiss’ damages, as herein alleged, were proximately caused by such Cross-Defendants. 6. Weiss is informed and believes and thereupon alleges that, at all relevant times herein, each of the Cross-Defendants was the agent, employee, and/or joint venturer of each of the xemaining Cross-Defendants and was acting within the purpose, course, and scope of such agency or employment, and/or pursuant to such joint venture. 7 This action concerns the alleged toxic tort exposure of Mr. Spingola (“Plaintiff”) to chemicals including tetrachloroethylene (PCE) and trichloroethylene (TCE) while working in the Distribution Center in the basement of 2130 O’ Farrell Street, San Francisco, California, from 2005 12745.0001/11084818.1 2 : 7 DEFENDANT WEISS ASSOCIATES' CROSS-COMPLAINTOo 6 IN Dw RB YW YD He YN YY YPN PNY Be ee ewe we ew - 23x ae 8 58S FF FSerWA GREEKS — 2008 (2130 O° Farrell Street hereinafter referred to as the “Property”). 8. On information and belief, at all relevant times Plaintiff was employed by Kaiser Foundation Hospitals (“Hospital”), an entity separate from but related to Kaiser. 9 Hospital became the owner of the Property in 1982. 10. Weiss was hired and performed environmental consulting services for the benefit of Hospital beginning in 1988, and in 1991 designed a groundwater extraction system for Hospital’s use at the Property. 11, The groundwater extraction system was located in the basement of the Property, which was not occupied at the time Weiss designed the extraction system. On information and belief, the Hospital did not inform Weiss that the basement would eventually be staffed with personnel, Weiss was not retained nor requested to evaluate the safety for personnel working in the basement of the Property. 12. Weiss subsequently provided environmental consulting services at the Property under its contract with Kaiser from 1997-2006, Weiss did not perform services at the Property after 2006. 13. While performing work for Kaiser, Weiss recommended Kaiser investigate the potential of vapor intrusion at the Property. These discussions started in 2004 and were documented in a February 2, 2005 memorandum to Kaiser. Weiss followed up on that -memorandum several times throughout 2005 and 2006 asking Kaiser to approve the scope of work outlined in the February 2, 2005 memorandum and explaining to Kaiser the benefits of performing that scope of work. Kaiser did not perform the recommended vapor intrusion investigation outlined in the February 2, 2005 memorandum until approximately three years laler, in 2008, On information and belief, Kaiser thereafter evacuated their employees from the basement of the Property, 14, On information and belief, AMEC was retained and performed environmental consulting services at the Property in 2007, following Weiss’ work on the Property. 15, On information and belief, Haley & Aldrich, Inc., performed environmental consulting services at the Property after AMEC, but these services were performed subsequent to 12745,0001/31084818,1 3 DEFENDANT WEISS ASSOCIATES! CROSS-COMPLAINTOo we UM A the time period during which Plaintiff worked at the Property, 16, Weiss is informed and believes and thereupon alleges that Roes 1 through 20, inclusive, performed work and/or services for the benefit of owner of Hospital, Kaiser, AMEC, and/or the Property pursuant to written contracts with Weiss Associates and/or other parties to this action. 17, : On or about October 19, 2017, Plaintiff filed his Complaint in this action, On or about November 17, 2017, Plaintiff filed his First Amended Complaint (“FAC”), the operative complaint, which alleges fraudulent concealment against the Hospital for the presence of toxic chemicals at the Property, and negligence against Weiss, AMEC, and Haley & Aldrich, Inc., based on their services at the Property. The FAC alleges Defendants’ work and services at the Property resulted in toxic tort exposure to Plaintiff of chemicals that caused personal injury damages. 18, On or about January 10, 2018, Plaintiff dismissed the Hospital without prejudice, 19. On or about February 12, 2018, Plaintiff dismissed Haley & Aldrich, Inc. without prejudice. 20. On or about February 13, 2018, Plaintiff requested the dismissal of AMEC from this action without prejudice. 21, The FAC is incorporated by reference as if set forth in full for the purpose of illustrating, but not for the truth of, the allegations asserted therein, 22. Weiss denies that it was in any way negligent, at fault, or otherwise responsible for any damagoes alleged in the FAC, or that may be proved by Plaintiff. Weiss also denies that any of its acts or omissions proximately resulted in any injury or damage to Plaintiff. However, if it is found that any of Plaintiff’s allegations are true, Weiss Associates is informed and believes and thereupon alleges that any alleged damages resulting therefrom were caused by Cross-Defendants’ acts and/or omissions, FIRST CAUSE OF ACTIO) (Equitable Indemnity Against All Cross-Defendants) 23. Weiss realleges and incorporates by reference every allegation contained in paragraphs | through 21 above. 12748,0001/11084818.1 7 A 7 DEFENDANT WEISS ASSOCIATES' CROSS-COMPLAINT0 Oe WA DA mH BR WY Ye NN YP NY YPN YN NY we tke ek ex AG RBS © SF Fe VDRaAaEBRES 24. Weiss Associates denies that it is responsible in any way for the damages alleged in this action. If Plaintiff sustained damages as alleged in the FAC, those damages were caused by Cross-Defendants. If Weiss is found liable or responsible for any damages alleged in this action, it will have been solely as a result of the primary and active negligence, conduct, or other liability of Cross-Defendants and not of Weiss’ secondary and passive, if any, negligence or other conduct. 25. Weiss is therefore entitled to be indemnified by Cross-Defendants for the full amount of any loss or judgment paid by Weiss to Plaintiff, including attorneys’ fees, costs, and any other expenses incurred in the defense of this action. WHEREFORE, Weiss prays for judgment as set forth below. SECOND CAUSE OF ACTION (Contribution Against All Cross-Defendants) 26. Weiss realleges and incorporates by reference every allegation contained in paragraphs 1 through 24 above. 27. Weiss will be damaged to the extent it must pay any sum, or any sum in excess of a proportionate amount of its liability, if any, assessed by the trier of fact. 28. Accordingly, if Plaintiff obtains judgment against Weiss , Weiss will be entitled to equitable contribution from Cross-Defendants proportionate to each Cross-Defendant’s share of liability, so Weiss may avoid payment of any sum to Plaintiff, or any other party, in excess of Weiss’ proportionate share of liability, if any, in this action. WHEREFORE, Weiss prays for judgment as set forth below. THIRD CAUSE OF ACTION (Declaratory Relief Against All Cross-Defendants) 29. Weiss realleges and incorporates by reference every allegation contained in paragraphs 1 through 27 above. 30. An actual and justifiable controversy has arisen and now exists between Weiss and Cross-Defendants. Weiss contends that Cross-Defendant’s owe a duty to defend and indemnify Weiss and therefore are legally responsible for, and owe an immediate and continuing duty to reimburse, Weiss’ costs of defense, investigation, expert consultants, attorneys’ fees, and other 12745.0001/1 10848181 5 : DEFENDANT WEISS ASSOCIATES' CROSS-COMPLAINTexpenses incutred in this action, Weiss further contends that Cross-Defendants owe their proportionate share of joint liability as to Plaintiff’s claims and allegations in this action, 31. Unless all of the joint and several liabilities, obligations, rights and duties are determined in this one proceeding, there will be a multiplicity of suits required to ultimately determine the liabilities, rights, duties and obligations of the parties hereto, all of which can be determined in the hearing of this one action. In addition, Weiss will be subject to an unreasonable burden and risk of irrevocable injury if the rights of the respective parties are not determined herein. 7 WHEREFORE, Weiss prays for judgment as set forth below. PRAYER FOR RELIEF Weiss prays for judgment against Cross-Defendants, jointly and severally, as follows: The First Cause Of Action For Equitable Indemnity 1, For equitable indemnity and damages in an amount according to proof sufficient to cover Weiss’ necessary and reasonable attorneys’ fees and other legal costs incurred in defending against the operative pleadings in this action, as well as for any direct or indirect liability by way of payment of judgment or judgments, and/or payment of settlement or settlements in this case; 2. For costs of suit; 3, For interest as permitted by the Court; and, 4, For such other and further relief as the Court deems just and proper. The Second Cause Of Action For Contribution 1, For contribution in the amount of Cross-Defendants’ proportionate share of liability, according to proof; 2. For costs of suit; 3. For interest as permitted by the Court; and, 4, For such other and further relief as the Court deems just and proper. The Third Cause Of Action For Declaratory Relief 1 For a declaration that Cross-Defendants owe an immediate and continuing duty to defend and indemnify Weiss in this action, including a continuing duty to reimburse any judgment 12745,0001/11084818,1 6 DEFENDANT WEISS ASSOCIATES’ CROSS-COMPLAINTNoe Ny YM BPN NNN ew we me ~ = om @ AFD RoHS fF SF FeWDAKDESHE AS Coe A A HW BR wD bv against Weiss, and Weiss’ costs of defense, investigation, expert consultants, attorneys’ fees, and other litigation expenses. 2. For a declaration of the respective rights and duties of Weiss and Cross-Defendants regarding the amount of Cross-Defendants’ proportionate share of any joint liability for Plaintiff's claims and allegations in this action, including any judgment against Weiss, and Weiss’ costs of defense, investigation, expert consultants, attorneys’ fees, and other litigation expenses. 3, For costs of suit; 4, For interest as permitted by the Court; and 5. For such other and further relief as the Court deems just and proper. DATED: March 5, 2018 SEVERSON & WERSON A Professional Corporation By: CL, b- Selene E. Plastiras Attorneys for Defendant AGUATIERRA ASSOCIATES, INC., dba WEISS ASSOCIATES }2745.0001/11084818.1 7 et DEFENDANT WEISS ASSOCIATES' CROSS-COMPLAINTOo Oe BWA wh BR WwW Be NoN wy YPN NNN He ew ew ee ome eu Ae SoS FS Se BaagtrRapges PROOF OF SERVICE James Spingola v, Kaiser Foundation Hospitals, et al. San Francisco County Superior Court, Case No. CGC-17-562009 At the time of service, I was over 18 years of age and not a party to this action, Iam employed in the County of San Francisco, State of California. My business address is One Embarcadero Center, Suite 2600, San Francisco, CA 94111. On March 5, 2018, I served true copies of the following document(s): DEFENDANT AGUATIERRA ASSOCIATES, INC., DBA WEISS ASSOCIATES' CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF on the interested patties in this action as follows: SEE ATTACHED SERVICE LIST BY MESSENGER SERVICE: I provided such document(s) to a professional messenger service for service. (4 declaration by the messenger shall accompany this Proof of Service or be contained in the Declaration of Messenger below.) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 5, 2018, at San Francisco, California.DECLARATION OF MESSENGER I personally delivered the envelope or package received from the declarant above to the persons at the addresses listed in the service list. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package, which was clearly labeled to identify the attomey being served, with a receptionist or an individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of sight in the morning and six in the evening. At the time of service, I was over 18 years of age, 1am not a party to the above-referenced. legal proceeding, I served the envelope or package, as stated above, on (date): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: oe (NAME OF DECLARANT) “(SIGNATURE OF DECLARANT)Co WU A wm RD Pe Boe oe np = So 13 SERVICE LIST James Spingola y. Kaiser Foundation Hospitals, et al. San Francisco County Superior Court, Case No. CGC-17-562009 Khaldoun A. Baghdadi, Esq. Attomeys for Plaintiff Walkup, Melodia, Kelly & ‘Sohoenberger, APC JAMES SPINGOLA 650 California St., 26th Floor San Francisco, CA 94108-2615 Tel: 415-981-7210 Email: kbaghdadi(@walkuplawoffice,com Anthony J. Carucci, Esq. Attorneys for Defendant Snell & Wilmer LLP, AMEC Foster Wheeler Environment & 600 Anton Blyd., Suite 1400 Infrastructure Costa Mesa, CA 92626 Tel: 714-427-7000EXHIBIT CIN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JAMES SPINGOLA, Plaintiff, -vs- CASE NO. CGC-17-562009 KAISER FOUNDATION HOSPITALS, AGUATIERRA ASSOCIATES, INC., dba WEISS ASSOCIATES, AMEC FOSTER-WHEELER ENVIRONMENTAL & INFRASTRUCTURE, INC., HALEY & ALDRICH, INC., DOES ONE through ONE HUNDRED, Defendants. VIDEOTAPED DEPOSITION OF RICHARD WEISS Taken before JOAN GRIER Certified Shorthand Reporter State of California C.S.R. License No. 8958 June 20, 2018 s CRANGLE REPORTING SERVICES www.cranglereporting.com | (510) 653-1312VIDEOTAPED DEPOSITION OF RICHARD WEISS 24 25 some of the concentrations for our monitoring and reporting were above ESLs, or it was not part of our scope of work, we often would -- we try to look at that for our clients, and we often would tell them that they may have an issue and should evaluate it. MR. CHOU: Q. Mr. Weiss, you've been deposed many times before, so you understand that the oath that the court reporter gave to you, the oath that you took, is the same oath to tell the truth that you would have to give if you were testifying in court. Yes? Q. I know we've gone into some subjects already. I want to offer to you that if you don't understand my question -- and I think you've done this before already -- please, ask me to clarify the question. Can you do that? A. Yes. Q. If you answer a question, I'm going to assume that you both understood the question and that you're giving a truthful answer. Is that fair? A. Yes. (Plaintiff's Exhibit 1 was marked for identification.) MR. CHOU: Q. I'm handing you what I've marked 25 www.cranglereporting.com | (510) 653-1312 » CRANG LE REPORTING SERVICESVIDEOTAPED DEPOSITION OF RICHARD WEISS 24 25 as Exhibit 1, which is the Notice of Person Most Qualified Deposition. I understand -- so go ahead and take a look at the second page. There are four categories that I understand that you're being produced to testify about. A. Um-hmm. Q. Category 1 is: "Aguatierra Associates's activities at and around the property known both as 2130 O'Farrell Street and as 2241 Geary Street at any tame." Are you prepared to testify as the person most Gualified on that subject? Ba £E8< Q. Topic No. 2. is: "The testing of and testing results for air, soil, and/or water at or around the property known both as 2130 O'Farrell Street and as 2241 Geary Street for chemicals including solvents, volatile organic compounds, and/or any other chemicals potentially harmful to human health at any time." Are you prepared to testify as the person most qualified on behalf of Weiss Associates on that subject? Ao eR. Q. Category No. 3 is: "The testing and testing results of air, soil, and/or water within a five-block radius of the property known both as 2130 O'Farrell 26 www.cranglereporting.com | (510) 653-1312 Fy CRANGLE REPORTING SERVICESVIDEOTAPED DEPOSITION OF RICHARD WEISS 1 Street and as 2241 Geary Street for chemicals including 2 solvents, volatile organic compounds, and/or any other 3 chemicals potentially harmful to human health at any 4 time." 5 Are you prepared to testify as the person most 6 qualified in that subject? Zz A. Yes. Although, I don't know what this 8 five-block radius -- where that comes from. 9 Q. Sure. 10 I meant to capture -- because I understand that 11 not all of the monitoring wells involved in this project 12 are physically at or beneath 2130 O'Farrell Street. Is 13. that correct? 14 A. That's my understanding. 15 Q. So there are monitoring wells that are some 16 blocks away from the actual building 2130 O'Farrell? 17 A. Yes. 18 Q. And I hope to encompass the testing and testing 19 results of those wells in your testimony today as well. 20 Are you prepared to testify about that? 21 A. Yes. 22 Q. Category 4 is: "Any and all ground water 23 extraction systems of any kind at the property known 24 both as 2130 O'Farrell Street and as 2241 Geary Street 25 from any date." 27 www.cranglereporting.com | (510) 653-1312 s CRANGLE REPORTING SERVICESVIDEOTAPED DEPOSITION OF RICHARD WEISS 1 MR. ERICKSEN: Objection. Vague and ambiguous. 2 lacks foundation. Calls for speculation. Incomplete 3 hypothetical. Assumes facts not in evidence. 4 Particularly that there's one over the other that can be 5 stated on any comprehensive basis. 6 THE WITNESS: We believe we are protecting 7 human health and the environment by helping our clients 8 meet the regulatory standards. It's not up to us to 9 determine what is safe or unsafe exposure. It's -- it's 10 a very complicated process. I mean, again, you're 11 really oversimplifying a very complex situation. 12 MR. CHOU: Q. The Water Board -- you had 13 talked about this earlier. 14 The Water Board issues screening levels, 15 correct? 16 A. Pardon? 17 Q. The Water Board issues screening levels, which 18 I think they're now called environmental screening 19 levels? 20 A. Yes. 21 Q. Earlier you had said, when you get levels at a 22. sit