Motion,Ex Parte: RICHARD LANE VS. ASBESTOS DEFENDANTS (B*P) et al

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207870 1 107% 24858

RICHARD D. DUMONT (SBN 107967),

rdumont@selmanbreitman.com
EMILIEE DELA MOTTE (SBN 233557), ELECTRONICALLY
edelamotte@selmanbreitman.com FILED
SELMAN BREITMAN LLP Superior Court of California,
33 New Montgomery, Sixth Floor County of San Francisco
San Francisco, CA 94105 JAN 04 2011
Telephone: (415) 979-0400 Clerk of the Court
Facsimile: (415) 979-2099 BY: ANNIE PASCUAL
Deputy Clerk

Attorneys for Defendant

SCOTT CO. OF CALIFORNIA,
erroneously sued herein as the alternate
entity of Broadway Plumbing Co., Inc. and
Broadway Mechanical Contractors, Inc.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

YVONNE SANDERS, as Wrongful Death CASE NO. CGC-08-274501
Heir and as Successor-in-Interest to
RICHARD LANE, as Legal Heirs of ERRATA

RICHARD LANE, Deceased,
SCOTT CO. OF CALIFORNIA'S MOTION

Plaintiffs, IN LIMINE TO EXCLUDE CLAIMS OF
ASBESTOS EXPOSURE AGAINST IT
v. AFTER IT LEFF ANY SITE AT ISSUE
ASBESTOS DEFENDANTS (B*P), Motion In Limine No. 23
Defendants. Complaint Filed =: January 18, 2008
Trial Date : November 1, 2010

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Defendant SCOTT CO. OF CALIFORNIA (hereafter “Scott Co.”) hereby moves
the court in fimine, prior to trial and before the sclection of a jury, for an Order precluding
plaintiffs from presenting evidence or arguments that Scott Co. performed construction
activities at any of the sites at issue in this matter, absent an offer of proof that decedent
worked at such facilities during the time that Scott Co. was also present.

L SUMMARY OF ARGUMENT

Decedent Richard Lane worked at various jobsites throughout his career, at a few of
which Scott Co. performed work. It is anticipated that plaintiff heirs will claim that Scott
Co. is liable for asbestos exposure that allegedly occurred while Scott Co. was performing

construction work at one or more locations as well as for asbestos exposure that allegedly

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MOTION IN LIMENE NO. 232
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207870. 1976.28859

occurred afier Scott Co. completed its construction work and left the site or sites.

Scott Co. seeks an order precluding evidence or argument in support of plaintiffs’
claim that Scott Co. is liable for any asbestos exposure that allegedly occurred after Scott
Co. completed its work and left the site or sites. Scott Co. cannot be held liable for post-
construction exposure to asbestos-containing materials installed during the course of a
construction project once construction has been completed and the newly constructed
structure has been released to the premises owner. Accordingly, plaintiffs should be
precluded from arguing otherwise to the jury and from mentioning that Scott Co.
constructed any facilities at any of the sites at issue in this matter absent a sufficient
showing that he was within sufficient proximity to such facilities to be exposed to asbestos
during their construction by Scott Co.

I. ARGUMENT

A. Any Post-Construction Liability Claims Made by Plaintiffs' Against
Seott Co. Should be Excluded Because They Cannot Lead to Liability
and Therefore are net Relevant.

“No evidence is admissible except relevant evidence.” Cal. Evid. Code § 351.
Evidence is not relevant where it does not assist in establishing a viable cause of action.
Clemens v. American Warranty Corp. (1987) 193 CaLApp.3d 444, 451-52 (objection to all
evidence is properly sustained where, even if plaintiffs’ allegations were proven, they
would not establish a cause of action). As set out below, the fact that decedent may have
been exposed to asbestos at sites previously constructed by Scott Co. is not relevant
because once construction is completed, Scott Co. cannot be held liable for such exposure
under either a negligence or strict liability theory.

1. Any Post-Construction Claims Made by Plaintiff Against Scott
Co. Cannot Support a Negligence Claim.

When a premises owner has accepted a building or facility from a contractor, the
failure by the owner to remedy a known or patent defect extinguishes any duty the

contractor may have owed to subsequent workers at the building or facility. Sanchez v.

MOTION IN LIMINE NO. 23n

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207170.) 1076,28859

Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1471. The “latency of the defect
remains essential to a contractor’s negligent-construction liability after the owner has
accepted the structure.” Jd, at 1470. Furthermore, “[e]ven if the defect initially could have
been considered latent, once it was discovered, it [becomes] patent.” Jd. at 1471. The fact
that the premises owner may fail to take precautions against the defect does not make the
detect latent. See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 961. The
Sanchez court acknowledged that injuries to future workers or users might be foreseeable,
but explained why no duty was owed by the contractor:

Given the obviousness of the danger both to the owner and to

users, there is no longer a close connection between.

defendants’ conduct and plaintiff's injury. The failure to take

precautions against injury and steps to remedy the problem are

far more closely connected. Additionally, inasmuch as the

defect was patent, and, thus, the structure could have been

rejected or the defect corrected by the owner, the policy against

preventing future harm is not served by imposing liability on

the contractor. These factors weigh in favor of defendants and,

given their great importance, they outweigh the factors favoring

plaintiffs.
dd, at 1AT1-72.

Plaintiffs’ anticipated contention that a contractor owes a continuing duty to workers
who come on site after the contractor has completed its work was also rejected in De Lima
vy, Magnesite Waterproofing & Refinishing A987) 191 Cal App.3d 776, 783. In De Lima,
a contractor, MWR, replaced two outdoor staircases at an apartment building, applied
magnesite on the stairs and then sealed them. One year later, the owner had the stairs
resealed by a different contractor, Rodriquez, in the course of ordinary maintenance.
Rodriquez, the subsequent contractor, failed to add sand to the resealer, which left the
stairs improperly sealed and dangerously slippery when wet. A tenant who was injured
when he slipped and fell on the wet stairs sued MWR, Rodriquez and the owner. id. at
778-79.

The plaintiff in De Lima argued that MWR had a duty to warn the owner that the
stairs could become slippery if sand was not added during resealing. Indeed, the evidence

showed that MWR knew the stairs would be slippery if not sealed with sand, told the
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MOTION IN LIMINE NO. 23oo

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2071701 1976.28859

owner that the stairs would need to be resealed every year, but failed to tell the owner
about the need for sand in the sealer. /d. at 780. Nonetheless, the court granted MWR’s
motion for nonsuit, finding that MWR owed no duty of care to the plaintiff. 4d at 782-83.
First, the court noted that a contractor’s duty to persons not in contract with it is a matter of
policy involving a balancing of factors such as the foreseeability of harm to plaintiff, the
extent to which the transaction was intended to affect plaintiff, the closeness of the
connection between defendant’s conduct, and the injury suffered and the policy of
preventing future harm. Jd at 782. Using those guiding principles, the court found that
even though it was foreseeable to MWR that the stairs would be slippery if resealed
without sand, it was not foreseeable that persons using the stairs would slip because of a
second contractor’s failure to add sand to the sealer. /bid. Rodriguez, not MWR, created
the hazardous situation and therefore there was no connection between MRW’s conduct
and plaintiff's injury. [did.
Additionally, the court explained that the policy of preventing future harm was not
furthered by imposing upon contractors, such as MWR, the duty to warn its customers that
sand must be used when resealing the stairs:
Such a warning is ‘second hand’ in that it is given not to the
person who does the resealing, but to the person who hires him
to do the work. .... The warning which plaintiffs’ urges
should be given would be meaningful only if directed to the
person who does the resealing -- a person selected by the owner
of the premises, not by MWR. An intolerable burden would be
placed on the initial contractor by requiring him to ascertain the
identity of all subsequent contractors. ... Further, the
imposition of such a duty would be meaningless inasmuch as
the initial contractor has no authority or control over the
performance of the work of the subsequent contractor.

id. at 783.

In this case, Scott Co. anticipates that plaintiffs may claim decedent's exposure to
asbestos occurred after Scott Co.'s construction work at the site or sites at issue was
completed and accepted by the premises owner, Accordingly, pursuant to De Lima and
Sanchez, plaintiffs must establish that the asbestos-containing materials allegedly installed

during the construction represented a latent hazardous condition before Scott Co. may be

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MOTION IN LIMINE NO. 23Selman Breitman LLP
ATTORNEYS AT LAW

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20770,2 1676.28859

held liable for post-construction exposure to such products. To prevail on any negligence
claim against Scott Co., however, plaintiffs would also have to prove that at the time of the
alleged installation of the asbestos-containing materials, Scott Co. should have known that
such materials presented a health hazard.

There is no evidence in this matter that Scott Co. surreptitiously installed any
asbestos-containing products without the premises owner’s knowledge and approval.
Accordingly, the only way that plaintiffs can claim the presence of such materials
represented a latent defect is to establish that Scott Co. should have been aware of the
hazards of such products and that the premises owner should not have been aware of such
hazards. Logic dictates, however, that if Scott Co. should have known that asbestos-
containing materials presented a health hazard, the owners and operators of the sites at
issue in this case, who routinely purchased and installed such products, would also have
known of those hazards.

If plaintiffs establish that Scott Co, installed such products when it should have
known of their hazards, plaintiffs will simultaneously establish that the premises owner
should have known of the hazards alleged, thereby making those hazards a patent defect.
Consequently, plaintiffs cannot prevail on a post-construction exposure claim against Scott
Co. on a negligence theory because, regardless of whether or not the jury believes that
Scott Co. should have known of the hazards of asbestos, Scott Co. will not have liability in
this matter.

2 Any Post-Construction Claims Made by Plaintiffs Against Scott
Co. Cannot Support a Strict Liability Claim.

Fundamental to a strict products liability cause of action is the defendant’s status as
part of the chain of commerce, which brings the allegedly defective product to the
consumer market. The chain of commerce can include manufacturers, sellers and
distributors, i.e., those entities involved for their own benefit in the overall production and
marketing of the product. E.g., Kaminski v. Western MacArthur Co., 175 Cal.App.3d 445,

455-56 (1985) (strict products liability may extend to “any business entity in the chain of

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production and marketing, from the original manufacturer down through the distributor
and wholesaler to the retailer”). However, strict products liability cannot be asserted
against defendants that are not in the business of manufacturing or selling the product.
The requirement that a defendant be part of the chain of commerce for strict liability
purposes was addressed in Monte Vista Development Corp. v. Superior Court, 226
Cal.App.3d 1681 (1991). In Monte Vista, the plaintiff was injured when a ceramic soap »
dish in the plaintiff's house broke during cleaning. The ceramic soap dish had been
installed by the tile contractor hired by the property developer. The tile contractor
purchased the soap dishes in bulk in order to complete its tile work on numerous houses
being constructed by the developer. The plaintiff sued the tile contractor under theories of
negligence and strict products liability. /d. at 1683-84, The appellate court affirmed
summary adjudication of plaintiff's strict products liability cause of action in favor of the
tile contractor.

The focus of the appellate court’s inquiry was “whether the tile company came
within the chain of commerce as a supplier of the soap dish ....” Jd at 1687. Strict
products liability attaches only if “the seller is engaged in the business of selling such a
product.” Zd. (citing Rest.2d Torts, § 402A). The evidence showed that the tile contractor
was not in the business of selling soap dishes; it purchased soap dishes and used them to
complete the tile work it agreed to perform under its contract with the developer. The tile
contractor was not part of the overall production and marketing of the soap dish; it was
indifferent as to who manufactured or supplied the soap dishes. Lacking evidence that the
tile contractor was a “seller” of the soap dishes within the context of strict products
liability, the court held that no such liability could be imposed on the tile contractor as a
matter of law. fd, at 1687-88.

Plaintiffs here should be precluded from arguing to the jury any strict liability
claims against Scott Co. or making any claims that Scott Co. manufactured, sold or
distributed any asbestos-containing products. Scott Co. was a contractor; it was not in the

business of selling products. While Scott Co. may have at times installed products in the

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performance of its construction projects, such products were incidentally provided to
perform Scott Co,’s construction services. Accordingly, any post-construction exposure
claims made by plaintiffs against Scott Co. cannot support a strict liability claim against
Scott Co, even if one were to assume that Scott Co. installed asbestos-containing materials
when constructing the sites at issue.

B. The Introduction of Evidence That Scott Co. Performed Construction
Work at Facilities Where Decedent Subsequently Worked will
Necessitate Undue Consumption of Time and Create Substantial

Danger of Undue Prejudice.

“The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will: (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or misleading the jury.” Cal. Evid. Code § 352. As set out above, decedent’s post-
construction liability claims against Scott Co. are not viable. Accordingly, it would
necessitate undue consumption of time to present evidence or argument that Scott Co.
constructed any particular facilities within the sites at issue absent a showing by plaintiffs
that decedent was contemporaneously present when Scott Co. constructed the facilities.
Moreover, such evidence would be unduly prejudicial to Scott Co. because the jury may
become confused by such evidence and impose liability on Scott Co. for post-construction
exposure when, as noted above, as a matter of law Scott Co. has no liability for post-
construction exposure.

TW. CONCLUSION

For all the foregoing reasons, Scott Co. respectfully requests this Court issue an
Order prectuding plaintiffs from presenting evidence or arguments that Scott Co.
constructed any facilities at decedent’s job sites absent an offer of proof that decedent was
contemporaneously present during the construction of those facilities.

Hi
Hf

MOTION IN LIMINE NO. 231 DATED: October 25, 2010 SELMAN BREITMAN Lip
2
3 By: ——
RICHARD D. DUMONT (SBN 107967)
4 EMILIE E. DE LA MOTTE (SBN 233557)
Attorneys for Defendant
5 SCOTT CO. OF CALIFORNIA, erroneously sued
herein as the alternate entity of Broadway Plumbing
6 Co., Inc. and Broadway Mechanical Contractors, Inc.
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2OTH7G.1 1076.28859 8
MOTION IN LIMINE NO. 23Selman Breitman LLP

ATTORNEYS AT LAW

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Yvonne Sanders, et al. v. Asbestas Defendants (BP)
San Francisco Superior Court Case No. CGC-08-274501
Defendant: Scott Co. of California

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

Lam employed in the County of San Francisco, State of California. | am over the
age of L8 years and am not a party to the within action; my business address is 33 New
Montgomery, Sixth Floor, San Francisco, CA 94105.

On the date shown below, | electronically served the following document(s) via
LexisNexis File & Serve described as

ERRATA: SCOTT CO. OF CALIFORNIA'S MOTION IN
LIMINE TO EXCLUDE CLAIMS OF ASBESTOS EXPOSURE
AGAINST IT AFTER FF LEFT ANY SITE AT ISSUE (MIL 23)

on the recipients designated on the Transaction Receipt located on the LexisNexis File &

Serve website.

1 declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Executed on January 4, 2011, at San Francisco, California.

J. M. Burris

ERRATA: SCOTT CO. OF CALIFORNIA'S MOTION IN LIMINE TO EXCLUDE CLAIMS OF
ASBESTOS EXPOSURE AGAINST IT AFTER IT LEPT ANY SITE AT ISSUE (MIL 23)