Motion,Ex Parte: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                ATTORNEYS AT LAW
PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

BRAYTON® PURCELL LLP
222 RUSH LANDING ROAD.

(415) 898-1553

GILBERT L. PURCELL, ESQ., S.B. #113603
JAMES P. NEVIN, ESQ., S.B. #220816
BRAYTON#PURCELL LLP

Attorneys at Law ELECTRONICALLY

222 Rush Landing Road FILED
P.O. Box 6169 Superior Court of California,
Novato, California 94945 County of San Francisco

(415) 898-1555 APR 13 2010

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

Attomeys for Plaintiffs

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

JOYCE JUELCH and ASBESTOS
NORMAN JUELCH SR., No. CGC-09-275212

Plaintiffs, PLAINTIFFS’ OPPOSITION TO
DEFENDANT METALCLAD’S MOTION
vs. IN LIMINE #38 TO EXCLUDE

EXPOSURES AS A RESULT OF
ASBESTOS DEFENDANTS (BP)

PLAINTIFFS’ EMPLOYMENT

Trial Date: April 12, 2010
Room: 604, Hon. Marla Miller

K Alnjyred Ose sAiahoppei-38-encl we cx METALC 1

PLAINTIFFS’ OPPOSITION TO DEFENDANT METALCLAD’S MOTION IN LIMINE #38 TO EXCLUDE EXPOSURES AS A RESULT
OF PLAINTIFFS’ EMPLOYMENToe SH DH NH SB WN

io

Plaintiffs’ hereby oppose defendant METALCLAD’s motion to exclude asbestos
exposures to asbestos that occurred while plaintiffs, JOYCE JUELCH and NORMAN
JUELCH, SR., were employed by defendant. The defendant has already brought this identical
motion as a motion for summary adjudication, and lost it. The law of the case already is that
asbestos exposures to Mr. JUELCH that were then brought home on his clothes and thereby
exposed Mrs. JUELCH at home when she did the laundry, vacuuming, etc., are not barred by
workers compensation. See attached as Exhibit A, the 3/18/10 order from Judge Kahn, and as

Exhibit B, plaintiffs’ opposition to defendant’s motion for summary judgment.

Dated: AN3BA0 BRAYTON*PURCELL LLP

By: /s/ James P. Nevin

James P. Nevin
Attomeys for Plaintiffs

K Mejusedh| 08688 uiahonp mil 38-escl we exp METALG. 2

PLAINTIPPS* OPPOSITION TO DEFENDANT METALCLAD’S MOTION IN LIMINE #38 TO EXCLUDE EXPOSURES AS A RESULT
OF PLAINTIFFS’ EMPLOYMENTEXHIBIT ARea

BRAYTON®PURCELL LLP

ATTORNEYS AT LAW

222 RUSH LANDING ROAD.

PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

(415) 898-1555

oO Om WD HH PB WN

ALAN R. BRAYTON, ESQ., S.B. #73685
DAVID R. DONADIO, ESQ., 8.B. #154436
RON G. ARCHER, ESQ., 5.B. #189429
BRAYTON*PLIRCELL LLP

Attorneys at Law

222 Rush Landing Road

P.O, Box 6169

Novato, California 94948-6169
(415).898-1555

Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCE JUELCH and ) ASBESTOS
NORMA JUELCH, 8R., } No, CGC-09-275212
Plaintiffs, NOTICE OF ENTRY OF ORDER
DENYING DEFENDANT METALCLAD
vs. INSULATION CORPORATION’S
} | MOTION FOR SUMMARY JUDGMENT
ASBESTOS DEFENDANTS (BP) ) OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

TO DEFENDANT METALCLAD INSULATION CORPORATION, AND TO ITS
ATTORNEYS OF RECORD HEREIN:

PLEASE TAKE NOTICE that on March 18, 2010, the Court entered the Order Denying
Defendant METALCLAD INSULATION CORPORATION's Motion for Summary Judgment

or, in the Alternative, Summary Adjudication, attached hereto as Exhibit A.

Dated: 1 Wact 19,2010 RAYTO Ye
: db

i B
By
~Gr Nancy T. Williams

Attorneys for Plaintiffs

KAnjureshy onGH ord METALC. 1
Wek OF ENTRY OF ORDER DENYING DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY

JENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATION
EXHIBIT fewExhibit ABRAYTON PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD

PO BOX 6169
NOVATD, CALIFORNIA 94048-6109

(415) 898-1555

)SROURAUTON RG SE, PE
Court
| RONG, ARCHER, ESQ., S.B. #189429 = fou
| BRAYTON**PURCELL LLP MAR 16 2010
3 || Attomeys al Law
222 Rush Landing Road eLehK 6 THE CQUAT

4] P.O. Box 6169 ®.

Novato, California 94948-6169
H (415) 398-1555
} Tentative Ruling Contest Email: contestasbestosTR@braytoniaw.com

Attorneys for Plaintiffs

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO
JOYCE JUELCH and ) ASBESTOS
NORMA JUELCH, SR., } No, CGC-09-275212
Plaintiffs, “4 ORDER DENYING DEFENDANT
} | METALCLAD INSULATION
vs. } CORPORATION'S MOTION FOR
| \ | SUMMARY JUDGMENT OR, IN THE
| ASBESTOS DEFENDANTS (B**P) } | ALTERNATIVE, SUMMARY

ADJUDICATION

Date: March 18, 2010.

Time: 9:30 a.m.

Dept.: 220, Hon. Harold E. Kahn
Trial Date: April 5, 2010

_ Action Filed: May 20, 2009

METALCLAD INSULATION CORPORATION’s Motion for Summary Judgment or,
jn the Alternative, Summary Adjudication, came on regularly for hearing on March 18, 2010, in
Department 220, of the above-captioned Court. Plaintiffs and defendant, METALCLAD
INSULATION CORPORATION, appeared by their counsel of record.

Per Tentative Ruling: MSJ denied. Metalclad’s alternate MSA is denied as to
| negligence (issue 1), strict liability (issue 2), and loss of consortium (issue 5) and moot as to the
remaining issues. Metalclad has not established all the elements of a workers compensation
exclusivity achittita he Juelch's alleged take- -home exposure to asbestos that Mr. Juelch

arose
brought home on his work clothes didneterise out of and in the course of Mrs. Juelch's

K Ninjared 086 8mpiGord- METALC: 1 RGA

KiinjorediosesDpidoreMETALCpA PC C__C_CC—C_—_—C_ aa
ORDER DENYING DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY ADJUDICATIONCo OT DN HW eB WN

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employment with Metalclad. Metalclad has not established all the elements of a sophisticated
user defense since there is no evidence that Mrs. Juelch received any training in the hazards of
asbestos prior to the commencement of her laundering of Mr. Juelch's work clothes. Mr. Juelch
has a loss of consortium claim because Mrs. Juelch has a valid personal injury cause of action
against Metalclad. To the extent that Metalclad's motion is based on an exposure/product
identification issue, Metalclad did not satisfy its initial burden on that issue.

The evidence supporting plaintiffs' allegations is set forth in Plaintiffs’ Separate
Statement of Disputed Material Facts as follows:

PLAINTIFFS' DISPUTED
MATERIAL FACTS __ SUPPORTING EVIDENCE

1. Defendant acknowledges and does not 1. See defendant’s UMF No. 19.
contradict the claim that Mrs. JUELCH
was exposed to asbestos as a result of her
busband’s take-home of asbestos-
containing dust on his clothing during times
he was working for METALCLAD.
Defendant acknowledges and does not
contradict the claim that Mrs. JUELCH was
exposed to asbestos-containing dust while
laundering Mr. JUELCH’s asbestos-laden
clothing brought home from his work with
defendant.

IT 1S HEREBY ORDERED that METALCLAD INSULATION CORPORATION's
Motion for Summary Judgment or, in the Alternative, Summary Adjudication, is Per Tentative
Ruling: MSJ denied. Metalclad’s alternate MSA is denied as to negligence {issue 1), strict
liability Gssue 2), and loss of consortium {issue 5) and moot as to the remaining issues.
 Metalclad has not established all the elements of a workers compensation exclusivity defense,
Ie Mia ietcb's alleged take-home exposure to asbestos that Mr. Jueich brought home on his
work clothes did notarise out of and in the course of Mrs. Juelch's employment with Metalclad.
Metalclad has not established all the elements of a sophisticated user defense since there is no

evidence that Mrs. Juelch received any training in the hazards of asbestos prior to the

ut

ut

KAjorsd 1 oRsRigldbors METALC wp 2 RGA
ORDER DEN ALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN

ER. YING DEFENDANT MET.
THE ALTERNATIVE, SUMMARY ADJUDICATIONcommencement of her laundering of Mr. Juelch's work clothes. Mr. Juelch has a loss of

21 consortium claim because Mrs. Juelch has a valid personal injury cause of action against
3 |) Metalclad. To the extent that Metalclad's motion is based on an exposure/product identification
4]| issue, Metalclad did not satisfy its initial burden on that issue.
5
Dated: MAR 18 2010,
° HAROLD KA
| HN
§ Judge of the Superior Court
9]
10]
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12]
‘A Unnes ORS99 ghord METALC wd 3. ESA

| ORDER DENYING DEFENDANT METALCLAD INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY ADJUDICATIONBRAYTON PURCELL LLP

ATTORNEYS AT LAW
222 RUSH LANDING ROAD

POBOX 6169
NOVATO, CALIFORNIA 94948-6169

(AUS) 898-1555

PROOF OF SERVICE BY MAIL.

Jam employed in the County of Marin, State of California. | am over the age of 18
ears and am not a party to the within action. My business address is 222 Rush Landing Road,
.O, Box 6169, Novato, California 94948-6169.

On bk \AReH 19, 2010, | served the, following document(s) described as:

NOTICE OF ENTRY OF ORDER DENYING DEFENDANT METALCLAD
INSULATION CORPORATION'S MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

| METALCLAD INSULATION CORPORATION
McKenna Long & Aldridge

101 California Street

41* Floor

San Francisco, CA 94111

BY PERSONAL MAILING:

a

I deposited in the U.S. Mail at Novato, California, the above-described document(s), in
sealed envelope, with postage fully prepaid, addressed to the party(ies) as stated above.

YC BY OFFICE MAILING

Lam readily familiar with this office's practice of collection and processin,
correspondence, pleadings and other matters for mailing with the United States Postal
Service on that same day with postage thereon fully prepaid at Novato, California in the
ordinary course of business. I placed in the outgoing office mail, the above-described
document(s), in a sealed envelope, addressed to the party(ies) as stated above, for
collection and processing for mailing the same day in accordance with ordinary office
practices,

Executed Ma Rett 19 , 2010, at Novato, California.

I declare under penalty of perjury under
|| foregoing is true and correct.EXHIBIT B222 RUSH LANDING ROAD
PO BOX 6169

BRAYTON® PURCELL LLP.
ATTORNEYS AT LAW

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C2 co WD A mR ow LP

RON; BR RRR te
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| ALAN R. BRAYTON, ESQ., S.B. #73685

DAVID R. DONADIO, ESQ., S.B. #154436
RON G. ARCHER, ESQ., SB. #189429

BRAYTON’*PURCELL LLP
Attorneys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169
(415) 898-1555

Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com

Attorneys for Plaintiffs

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

JOYCE JUELCH and
NORMA IVJELCH, SR.,

Plaintiffs,
vs.

ASBESTOS DEFENDANTS (BP)

ASBESTOS

_ No. CGC-09-275212

PLAINTIFFS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT
METALCLAD INSULATION
CORPORATION’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE

ALTERNATIVE, SUMMARY
ADJUDICATION

Date: March 18, 2010

Time: 9:30 a.m.

Dept.: 220, Hon. Harold E. Kahn

Trial Date: April 5, 2010

Action Filed: May 20, 2009

L
INTRODUCTION
Defendant METALCLAD INSULATION CORPORATION (“METALCLAD’), by this

motion, attempts to deny liability for exposure to asbestos suffered by plaintiff, JOYCE
JUELCH, from the asbestos-laden dust brought home by her husband, NORMAN JUELCH, on
his person and on his work clothes which plaintiff laundered. Defendant does not dispute that
such exposure occurred. Rather Defendant argues that the take-home exposure suffered by
plaintiff through her husband should be barred because of an alleged exclusivity of workers’

compensation laws (Labor code § 3600 et seq.).

KMnjuedtt TALC ni : 1 RGA
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATION

EXHIBITDOD WN DH B WN

Defendant’s Motion must be denied as being without merit. The allegations of plaintiffs
complaint are clear and unambiguous: JOYCE JUELCH was exposed to asbestos by Metaiclad
both arising out of the course of her employment and arising out of personal actions outside of
both the scope and situs of employment, i.e. wholly unrelated to her employment. The remedy
for the former lies in Workers’ Compensation. The remedy for the latter is this civil action for
tort before the California Superior Court.

First, METALCLAD erroneously claims that it cannot be liable for plaintiff's exposure
to asbestos brought into the family home by her husband because of the “exclusive remedy”
provisions of California workers’ compensation law. As defendant would have it; plaintiff is
barred from any claim against METALCLAD while she was in its employ, irrespective of the
fact that the injury occurred through a route independent of her employment relationship.
Defendant is simply wrong. Plaintiff freely admits that she may bring no third party action
based on her own job related activities. But the law does not immunize an employer against
harm suffered outside of the employer-employee relationship. When Mrs. Juelch shook out her
husbands asbestos-laden clothing she did so after work hours, in her own home. METALCLAD

has made no showing that these activities were in any fashion a part of, or related in any way to,

the job duties of Mrs. Juelch. There is no bar.

Defendant’s second contention is that METALCLAD owed no duty to Mrs. Jueich
because she was a “sophisticated user” .This claim founders on a lack of evidence. Although
defendant cites evidence that plaintiff developed an understanding over the course of her career
that there were hazards associated with asbestos, it does not present any evidence demonstrating
that plaintiff knew at any time that she was at risk from the asbestos carried home by her
husband. To the extent that the evidence shows plaintiff came to understand during her carcer
that asbestos posed certain hazards, defendant has not presented evidence that in the early years
of her marriage when she was exposed to take-home dust from her husband that she possessed

sufficient understanding of these hazards such 4s would make her aware of a hazard from take-

home dust.
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PLAINTIFFS‘ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY SUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONwon A WwW BF Hw VY =

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I.
STATEMENT OF FACTS
Defendant acknowledges and does not contradict the claims Mrs. JUELCH was exposed

to asbestos as a result of her husband’s take-home of asbestos-containing dust on his clothing
during times he was working for METALCLAD. (See defendant’s UMF No. 19.) Defendant
acknowledges and does not contradict the claims that Mrs, JUELCH was exposed to asbestos-
containing dust while laundering Mr. JUELCH'’s asbestos-laden clothing brought home from
his work with defendant. (Id.}

Ii.

LEGAL ARGUMENT.

A. THE SCOPE OF DEFENDANT’S MOTION IS LIMITED TO THE MATTERS
PRESENTED IN IT’S MOVING PAPERS

Code of Civil Procedure § 437c imposes “on the moving party both a pleading
requirement and a substantive burden in order to prevail on a motion for summary judgment.”

(luge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66.) “{T]he initial duty to define the

issues presented by the complaint and to challenge them factually is on the defendant who seeks
a summary judgment.” (Conn v. National Can Corp. (1981) 124 Cal-App.3d 630,.638.) This
duty requires a defendant seeking summary judgment to set forth in its moving papers “with
specificity (1) the issues tendered by the complaint or answer which are pertinent to the
summary judgment motion and (2) each of the grounds of law upon which the moving party is
relying in asserting that the action has no merit or there is no defense to the action.” (Juge, 12
Cal.App.4th at 67.)

Specifically, “the Separate Statement of Undisputed Material Facts in support of a
motion must separately identify each cause of action, claim, issue of duty or affirmative
defense, and each supporting material fact claimed to be without dispute with respect to the
cause of action, claim, issue of duty, or affirmative defense.” (Cal. Rules of Court, rule 342(d).)
“The due process aspect of the separate statement requirement is self-evident, to inform the

opposing party of the evidence to be disputed to defeat the motion. (San Diego Watercrafts,

Anjo OR6YS plop METALC mal wp. 3 RGA
PLAINTIFFS‘ MEMORANDUM OF POINTS AND AUTHORITIES IM OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION| Inc. v. Wells Fargo Bank, N.A, (2002) 102 Cal.App.4th 308, 316.) “Failure to compiy with this

requirement of a separate statement may in the court's discretion constitute a sufficient ground

| for denial of the motion.” (Code of Civ. Proc. § 4370(b)(1).) “Facts stated elsewhere [other
| than in the separate statement] need not be considered by the court.” (Fleet v. CBS. Inc, ( 1996)
50 Cal.App.4th 1911, 1916.)

The sole issues raised by defendant in it’s Separate Statement of Undisputed Material

| Facts are the following: (1) that all of Mrs. JUELCH’s exposure to asbestos for which
| METALCLAD is responsible is barred by workers compensation; and (2) Mrs. JUELCH was a

sophisticated user. Defendant has not raised any other issue regarding identification, exposure

or defendant’s negligence. The motion is thus limited to the purely legal issues of the claimed

| workers’ compensation bar and alleged sophisticated user status. Plaintiffs therefore limit their

|| response to the two issues raised...

B. PLAINTIFF’S EXPOSURE TO ASBESTOS ARISING FROM NON- JOB-
RELATED ARE NOT BARRED BY THE EXCLUSIVE REMEDY

PROVISIONS OF CALIFORNIA WORKERS’ COMPENSATION LAW

1 PLAINTIFF DOES NOT CLAIM METALCLAD TO BE LIABLE FOR
EXPOSURE TO ASBESTOS RESULTING FROM HER JOB-
RELATED ACTIVITIES

Plaintiff readily concedes that California Labor Code §3600 establishes a workers’
compensation claim as the sole remedy for any injury arising from any injury sustained on work
premises during the course of employment or arising out of job- related activities. Plaintiff

therefore does not base her claim against METALCLAD on any exposure suffered based on any

1| activity she performed as an employee of METALCLAD or based on any exposure resulting

|| form the actions of anyone else while she was present on work premises in the course of her

employment with METALCLAD. Nor does she base her claim on any exposure resulting from

any asbestos that she herself may have carried home from a jobsite where she was employed by
METALCLAD. All such exposures are acknowledged to meet the statutory criteria of “arising
out of and in the course of employment” (California Labor Code §3600)

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EAfnjuredtonen METALC- msi. 4 RGA
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIIDICATION2. PLAINTIFF JS NOT BARRED FROM PURSUING A CLAIM FOR
EXPOSURE ARISING FROM NON-JOB-RELATED ACTIVITY _

The plain language of Labor Code §3600 limits the exclusive remedy provision to
“{njury...arising out of and in the course of employment”. All of defendant’s other statutory
citations either use language echoing the “course of employment” standard or directly refer to
§3600 itself. Although defendant attempts to suggest that the mere existence of an employer-
employee relationship makes a workers’ compensation claim the sole remedy for an injury
caused by an employer (irrespective of when, where and how the injury occurred), this is not the
standard set out under the Labor Code. Nor does the fact that an employee may suffer injury that
is compensable through workers compensation mean that other, or additional injury suffered at
the hands of the employer, but outside the "course of employment” either can or must be
pursued through a workers’ compensation claim.

The exposure suffered by plaintiff from the asbestos-laden dust brought into the family
home by her husband on his person and clothing had nothing whatsoever to do with Mrs.
Juelch’s status as an employee of METALCLAD or any duties or activities associated with such
employment. When she shook out her husband’s dusty clothes it was in her own home after
work. Defendant has not presented any evidence, because it cannot present any evidence that
“but for” employment with METALCLAD she would not have laundered her husbands
clothing, thereby exposing herself to additional amounts of the deadly fiber.

Labor Code § 3600 provides in pertinent part:

§ 3600. Conditions essential

(a) Liability for the compensation provided by this division, in lieu of any other liability

-whatsoever to any person except as otherwise specifically provided in Sections 3602,

3706, and 4558, shall, without regard to negligence, exist against an employer for any
a ares Rorthe Gentof ay employes te injury proximately causes deat, in
those cases where the following conditions of compensation concur:

(1) Where, at the time of the injury, both the employer and the employee are subject to
the compensation provisions of this division.

(2) Where, at the time of the injury, the employee is performing service growing
out of and incidental to his or her employment and is acting within the course of
his or her employment.

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONwc Oo YN DAH kh BH

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11

(3) Where the injury is proximately caused by the empléyment, either with or
without negligence. (emphasis added) y ployment, r with or

Labor code § 3200 provides, inter alia:

§ 3602. Right to compensation as exclusive remedy against employer; Exceptions

(c) in all cases where the conditions of compensation set forth in Section 3600 do not

concur {he Hability of the employer shall be the same as if this division had not been

Mrs. JUELCH is not attempting to recover in her third party action against defendant for
the exposure and resulting injury based on her own exposure “arising out of and in the course of
the employment” with METALCLAD. Defendant ignores that Mrs. PUELCH’s cleaning of her
husband’s clothes does not arise from her employment. It makes no difference that beth Mr.
and Mrs. JUELCH were exposed to asbestos while working for METALCLAD. His take-home
exposure is in addition to what she was exposed to through her work. The exposure to asbestos
from Mrs. JUELCH’s exposure alone, was a proximate cause of harm and rightfully covered by
workers conypensation. However, the take-home exposure from Mr. JUELCH’s clothing, for
instance, is another proximate cause, that by itself, rightfully creates a third party tort action.
Mr. JUELCH brought home asbestos fibers on his clothing and his wife was exposed and
breathed such asbestos, .

That this matter lies partly between the Workers” Compensation courts and this Court
can be evidenced by the analogous situation where a plaintiff was exposed to asbestos arising
out of her employment with METALCLAD at a certain location and in a certain course of
employment, and was also exposed to asbestos while visiting the home of a co-worker whose
asbestos covered clothing exposed her to asbestos. Any exposure resulting in injury from the
co-workers clothing at the co-workers home, unrelated to her course or place of employment
would surely not be covered by the Worker’s Compensation claim against Metalclad. So it is

here. There are two remedies and two forums. One does not exclude the other.

Mf
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONoD wm WH th BP ow

An injury is barred by the act if it arises out of the employment, that is the employment
and the injury must be linked in a causal fashion, LaTourette v. WCAB (1998) 17 Cal.4th 644,
when Mrs. JUELCH was home washing Mr. JUELCH’s clothing, she was not at work and she
was in the same position if she had no connection herself with METALCLAD.

“The danger from which the employee’s injury results must be one to which he was
exposed during his employment. All that is required is that the employment be one of the
contributing causes without which the injury would not have occurred.” Maher v. WCAB
(1983) 33 Cal.3d 729, 734. While it is tae Mrs. JUELCH suffered exposure and injury from
asbestos while working for METALCLAD, it is also true she suffered injury while not working
for METALCLAD from her husband’s take-home of asbestos on his clothing. Such asbestos on
his clothing did not come from her work. It is completely separate from her own workplace
exposure.

“An injury is said to arise in the course of the employment

when it takes place within the period of employment,

at a place where the employee reasonably may be, and

while he or she is fulfilling his or her duties or engaged

in doing something incidental thereto.”

1 A. Larson, The Law of Workmen’s Compensation, § 14.00, 1993

“Here, it is clear that this portion of plaintiff’s injury did not arise in the course of

employment. She was neither fulfilling her employment duties at her place of employment or
doing something incident thereto. Mrs. JUELCH’s injuries sustained as a result of laundering
her husbands work-clothes are unrelated to her duties as an employee and unrelated in time or
circumstance to her employment by Metaiclad. They are not compensable by workers’
compensation. However, plaintiff is not left without a remedy for that exposure. That remedy
lies in the instant action before this Court.

Defendant argues wrongly, that because Mr. and Mrs. SUELCH worked for
METALCLAD at the same jobsites while married, all of Mrs. JUELCH’s exposure and
asbestos-related disease arose out of her employment. Plaintiffs do not dispute that while Mrs.
JUELCH worked on the job with Mr. JUELCH, her exposure, even if caused by Mr. JUELCH’s

actions, is barred by workers compensation. But defendant discounts or simply ignores that

x 10868 tpld.ogp METALC. 7 RGA
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo oO RA HA RBH NHN

RNR NY NNR NK RD Ee ome ee ee eB es
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Mrs. JUELCH was exposed to asbestos from asbestos that Mr. JUELCH carried home on his
clothing and she was exposed, not as an employee, but as a spouse washing clothes. Defendant
cites no authority for the argument that “[p]laintiffs’ claim of the alleged secondary exposure
should be barred since all the asbestos fibers at issue, if any, originated on the premises where
Plaintiffs worked as insulators for Metalclad.”

An injury, to be compensable, must be received while the employee is doing the work he
is employed to perform, as a natural incident of that work. Associated Oil Co. v. Industrial Acci.
Com, (1923) 191 Cal $57, 217 P 744, 1923 Cal LEXIS 483.

An injury is compensable only when it is received while the employee is doing the work
he is employed to perform and when it is a natural incident of the work. Pacific Indem, Co. v.
Industrial Acci. Com. (1938, Cal App) 27 Cal App 2d 499, 81 P2d 572, 1938 Cal App LEXIS

701.

For an injury to occur in the “course of employment” within this section, the employee
must be engaged in the work he has been hired to perform, it must occur within the period of
his employment and at a place where he may reasonably be for that purpose while engaged im
performance of his duties or while doing something necessarily incident thereto. Dalgleish v.
Holt (1951, Cal App) 108 Cal App 2d 561, 237 P2d 553, 1952 Cal App LEXIS 1705.

For an injury to occur in the course of employment the employee must be engaged in the
work he has been hired to perform or some expectable personal act incidental thereto and the

injury must occur within the period of his employment and at a place where he may reasonably
be for that purpose. Department of Water & Power v. Workers' Comp. Appeals Bd. (1967, Cal
App 2d Dist) 252 Cal App 2d 744. 60 Cal Rptr 829, 1967 Cal App LEXIS 1563.

Metalclad attempts to expand workers compensation - but under current Jaw Mrs.
JUELCH is not entitled to workers’ compensation for injuries sustained as a spouse laundering
ber husbands clothing. Her remedy is limited to redress in this Court.

Mi
Hf
Mt

XAinjared\s08658\pid\opp METALC-rj 8 RGA
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION3. NEITHER THE ‘COMING AND GOING RULE” NOR THE “SPECIAL
RC RCEPTION HAVE ANY APPLICATION TO THE INSTANT

Defendant’s obfuscatory efforts include citation to a multitude of case involving the

| “going and coming” and the “special risk” exception. These case describe circumstances which
| account for injuries which while they may occur outside work official work hours or away from
| work premises are so closely tied to work activities as to be fairly characterizable as “arising out
|| of the employment. Plaintiffs have already conceded that injury plaintiff may have suffered
from asbestos she brought home herself would be subject to “special risk” classification—the

|| dust would not have been brought home by her but for having worked in and around it in the
course of her employment. The exposure suffered from dust brought home by her husband
however has no such nexus to her employment activities. It is purely. a matter of coincidence
that she was ensployed by METALCLAD at the same time.

Defendant claims that plaintiff’s lawsuit strikes at the heart of workers’ compensation
jaws and that “if Plaintiff's action succeeds, virtually anyone who claims injury as a result of
occupational exposure to a toxic substance would have a similar route around the exclusive
remedies afforded by workers’ compensation” This assertion might have some credence if
plaintiff were attempting to avoid the workers’ compensation bar by bringing a third party
action for her own “self-inflicted” take home exposure, but she is not. To bring a third party
claim for injury that did not arise out of the course of employment is entirely consistent with

| workers’ compensation law and does not erode its underlying purposes one whit

Cc. PLAINTIFF HAS DISMISSED FALSE REPRESENTATION, CONTRACTOR
LIABILITY AND PUNITIVE DAMAGES.

Defendant’s argument on these points are moot.

D. MR.JUELCH’S LOSS OF CONSORTIUM CAUSE IS VALID

| Defendant claims that because Mrs. SUELCH’s third party claim is barred by workers
compensation, so is Mr. JUELCH’s loss of consortium. Because Mrs. SUELCH’s third party

claim for Mr. JUELCH’s take-home of asbestos and Mrs. JUELCH’s resulting exposure is not

barred by workers compensation, neither is Mr. JUELCH’s loss of consortium for such injury.

Ninjured NOBS4BGT opp. METALC neh wed 9 RGA

PLAINTIFFS: MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONoC wm RAH BR YN

E. MRS, JUELCH IS NOT BARRED FROM CLAIMING TAKE HOME
EXPOSURE AS A “SOPHISTICATED USER”

Defendant attempts to argue as an affirmative defense that plaintiff’s claim is barred
because she was a sophisticated user who was aware of the hazard posed by the asbestos carried
home on the person and clothing of her husband. To raise an affirmative defense, the defendant
must present competent evidence to establish the elements of the defense, Defendant has failed
to do so,

Defendant mis-characterizes testimony regarding her understanding of hazards
associated with asbestos and when she acquired such understanding. Notably, defendant claims
that plaintiff “became aware of the hazards associated with asbestos... the same time she
became an insulator and began her insulator work for Metaclad” In fact the cited testimony
reveals that her first formal schooling regarding hazards of asbestos did not occur until she was
in her third year of work—not at the time she became an insulator and began her insulator work
for Metalclad. The testimony otherwise demonstrates that her understanding regarding asbestos
hazards developed over time. (See cited testimony re defendant’s UMFs Nos. 22-25.) Not only
has defendant failed to show with any precision what plaintiff knew about asbestos hazards or
when she knew it, it has utterly failed’ to _provide evidence that plaintiff at any time-had such a
sophisticated understanding of the hazards associated with asbestos that she appreciated that a
hazard was presented from take-home asbestos from her husband. Defendant of course would
not have to prove what plaintiff actually knew if it presented evidence of what a similarly
situated insulator at that time period could be expected to know. Defendant’s moving papers
however are completely devoid of any such facts. Defendant has completely failed to meet its
burden not simply to suggest a sophisticated user defense but to make a full evidentiary

showing establishing the defense.

Mi
ie
Mt
K Atyured L0868Biptitopp MATALC-mej wp’ 10 RGA

PLAINTIFFS: MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCONCLUSION

| Defendant's argument regarding workers’ compensation is legally erroneous.
Defendant’s effort to raise an affirmative “sophisticated user” defense founders for want of

evidence. Plaintiffs respectfully submit that defendant’s motion should be denied.

| Dated: 34. Q [Le : BRAYTON“*PURCELL LLP

wy: 2S AY

Far Ron G, Archer
‘Attomeys for Plaintiffs

{To comply with Department 220's rules regarding tentative rulings, you must call
the Law & Motion Message Line (415) 493-3594 to give us notice if you wish to contest a
tentative ruling. A copy of any email notification to Dept. 220 must be sent to

contestasbestesTR@pbraytonlaw.com.]

Ainiurshross METALC lt

| PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT METALCLAD INSULATION
CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION2
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F BYL IS E-SERVI

la am employed in the County of Marin, State of California. 1 am over the age of 18
years and am not a party to the within action, My business address is 222 Rush Landing Road,
P.O. Box 6169, Novato, California, 94948-6169.

On March 10, 2010, I electronically served (E-Service), pursuant to General Order No.
158, the following documents:

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANT METALCLAD INSULATION CORPORATION’S MOTION FOR.
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

DECLARATION OF RICHARD M. GRANT IN SUPPORT OF PLAINTIFFS" OPPOSITION
TO DEFENDANT METALCLAD INSULATION CORPORATION’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

PLAINTIFFS! RESPONSE TO DEFENDANT METALCLAD INSULATION
CORPORATION’S SEPARATE STATEMENT OF UNDISPUTED FACTS

PLAINTIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT METALCLAD INSULATION CORPORATION’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

ORDER DENYING DEFENDANT METALCLAD INSULATION CORPORATION’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

on the interested parties in this action by causing Lexis-Nexis E-service program pursuant to
General Order No. 158, to transmit a true copy thereof to the following party(es):

See Attached Service List

The above document was transmitted by Lexis-Nexis E-Service and the transmission
was Teported as complete and without error.

Executed on March 10, 2010, at Novato, California.
I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. .

Claudia Lucio

que Juelch and Norma Juelch, Sr. v. Asbestos Defendants (BP)
an Francisco Superior Court Case No. CGC-09-275212

PROOF OF SERVICE BY E-SERVICEDate Created: 3/10/2010-2:50:11 PM

Brayton-Purcall Service List

Created by: LitSupport - Servicelist - Reporting

Matter Number:

Bassi, Edlin, Huie & Blum LLP
351 Californta Street Suute 200
San Francisco, CA
415-397-9006 tise 307-1339 (fax)
Defendants:
4.7, Thorpe & Son, Inc. (THORPE)
Parker-Hannifin Corporation (PARKHF)

Hassard Bonnington LLP
Two Embi lero Center
Suite 1800
San Francisco, CA 94111
415-288-9800 415-288-9802 (fax)
Defendants:

Sequoia Ventures Inc. (SEQUOA)

McKenna Long & Aldridge
101 California Street
41* Floor
San Francisco, CA 94111
415-267-4000 415-267-4198 (fax)
Defendants:

Metalclad Insulation Corporation
(METALC)

Pond North, LLP

350 South Grand Avenue

Suite 3300

Los Angeles, CA 90071

213-617-6170 213-623-3594 (fax)

Defendants:
Genuine Parts Company (GPC) (GPC)
Viacom, Inc. (VIACOM)

Selman Breitman LLP
33 New Montgomery
6" floor
San Francisco, CA 94105
415-979-0400 415-979-2099 (fax)
Defendants:

Douglass Insulation Company, Inc.
(DOUGLS)

108688,001 - Joyce Juelch

Becherer, Kannett & Schweitzer
Water Tower
1255 Poweil Street
Emeryville, CA 94608-2
$10.54. 5600" $10-688-1151 (fax)
Defendants:

Dillingham Construction, N.A., Inc.
(iILGHM)

‘Law Offices of Glaspy & Glaspy
One Walnut Creek Center
100 Pringle Avenue, Sulte 750
Walnut Creek, C.
925-947-1300 Obs gag 1594 (fax)
Defendants:

Garlock Sealing Technologies, LLC
(GARLCK)

Morgan, Lewis & Bockius LLP
One Market, Spear Tower
San Francisco, CA 9
415-442-1000 415- a 001 (fax)
Defendants:

Santa Fe Braun, Inc. as Successor-in-
Interest to C.F. Braun, Inc. (CFBRAN)

Prindle, Amaro, Goetz, Hillyard, Barnes
& Reinholtz LLP.

One California Street

Suite 1910

San Francisco, CA 94111

415-788-8354 415-788-3625 (fax)
Defendants:

Consolidated Insulation, Inc. (CONSOL).

Sonnenschein Nath & Rosenthal, LLP

525 Market Street, 26" Floor

San Francisco, CA 94105-2708

415-882-5000 415-882-0300 (fax)

Defendants: |
Rapid-American Corporation (RAPID)

I
Run By : Kizgirian, Torii (TEK)
Berry & Berry
P.O. % 16070
2930 Lakeshore Avenue
Oakland, CA 946

$10-835-8530 $10. 835-3137 (fax)
Defendants:
Berry & Berry (B&B)

Law Offices of Lucinda L. Storm, Esq.
610A Third Street
San Francisco, CA 94107
415-777-6990 415-777-6992 (fax)
Defendants:

Pacific Gas & Electric Company (PG&E)

Nixon Peabody LLP
One Embarcadero
Floor
San Francisco, CA 94111
415-984-8200 866-542-6538 (fax)
Defendants:
Shell Oi Company (SHLOIL}

Sedgwick, Detert, Moran & Arnold
One Market Plaza
Steuart Tower, 8" Floor
San Francisco, CA 94105
415-781-7900 435-781-2635 (fax}
Defendants:

General Electric Company (GE)

Wailsworth, Franklin, Beyins & McCall
601 Montgon Steet, 4p Floor
San Francisco,
415-781-7072 as 51-6258 (fax)
Defendants:

Hamilton Materials, Inc, (GAM-M)

Quintee Industries, Inc, (QUINTC)

as Dee Engineering .. Inc. (DEE)Oo Oe WD HW BW HR =

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Bw NHN | SS

P.O BOX 6169
NOVATO, CALIFORNIA 94948-6169
(415) 898-1555

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ATTORNEYS AT LAW
222 RUSH LANDING ROAD

BRAYTON#PURCELL LLP
BoM NM Ye NY NN YP Se PF S|
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PROOF OF SERVICE BY LEXIS-NEXIS E-SERVICE

Jam employed in the County of Marin, State of California. 1 am over the age of 18
years and am not a party to the within action. My business address is 222 Rush Landing Road,
P.O. Box 6169, Novato, California, 94948-6169.

On April l 4 ; 2010, I electronically served (E-Service), pursuant to General Order
No. 158, the following documents:

PLAINTIFFS’ OPPOSITION TO DEFENDANT METALCLAD’S MOTION IN
LIMINE #38 TO EXCLUDE EXPOSURES AS A RESULT OF PLAINTIFFS’
EMPLOYMENT

on the interested parties in this action by causing Lexis-Nexis E-service program pursuant to
General Order No. 158, to transmit a true copy thereof to the following party(ies):

METALCLAD INSULATION CORPORATION
McKenna Long & Aldridge

101 California Street

41* Floor

San Francisco, CA 94111

The above document was transmitted by Lexis-Nexis E-Service and the transmission
was reported as complete and without error.

Executed on April | A ; 2010, at Novato, California.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
~

Angela Pérterfield U

Joyce Juelch and Norman Juelch, Sr. v. Asbestos Defendants (BP)
San Francisco Superior Court Case No. CGC-09-275212

PROOF OF SERVICE BY E-SERVICE