This case was last updated from Los Angeles County Superior Courts on 07/04/2019 at 05:58:31 (UTC).

MARGARET WILLIAMS ET AL VS LONG BEACH UNIFIED SCHOOL DISTRIC

Case Summary

On 07/05/2016 MARGARET WILLIAMS filed a Labor - Other Labor lawsuit against LONG BEACH UNIFIED SCHOOL DISTRIC. This case was filed in Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California. The Judges overseeing this case are ROSS KLEIN, MICHAEL P. VICENCIA and MARK C. KIM. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0708

  • Filing Date:

    07/05/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Governor George Deukmejian Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ROSS KLEIN

MICHAEL P. VICENCIA

MARK C. KIM

 

Party Details

Plaintiffs and Cross Defendants

MARGARET WILLIAMS - INDIV.

MARGARET WILLIAMS LLC

INDIV. MARGARET WILLIAMS -

WILLIAMS MARGARET

HANSON AGGREGATES LLC

LINIK CORP

PINNER CONSTRUCTION CO INC BC662419

HOWARD CONTRACTING INC BC662419

LINIK CORP BC662419

LEHIGH HANSON INC.

WEST COAST SAND AND GRAVEL INC

Claimants

NIELSEN FLETCHER

GRAVES TERESA

Defendants, Cross Plaintiffs and Cross Defendants

DOES 1 - 45 INC.

LONG BEACH UNITED SCHOOL DISTRICT

LINIK CORP

PINNER CONSTRUCTION CO INC BC662419

HOWARD CONTRACTING INC BC662419

KANOWSKY & ASSOCIATES DEAN OGRIN

PINNER CONSTRUCTION CO INC

PINNER CONSTRUCTION CO. INC.

HOWARD CONTRACTING INC.

LINIK CORP BC662419

HANSON AGGREGATES LLC

LEHIGH HANSON INC.

Not Classified By Court

TEST PARTY FOR TRUST CONVERSION

13 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

GRADY & ASSWOCIATES (DENNIS GRADY)

ALVES JACOBSON RADECLIFE (S RADCLIFFE)

HARRIS WILMER JOSEPH

SCHONBRUN BENJAMIN

HARRIS WILMER JOSEPH ESQ.

Claimant Attorney

NICK J DAVID

Cross Defendant and Defendant Attorneys

RUSCHKE HANS CHRISTIAN

SIPES EDWARD EUGENE

Cross Defendant and Cross Plaintiff Attorneys

BULLARD JAMES EDWARD

GALLAGHER MICHAEL EDGAR

YOUNG ADAM C.

RUSCHKE HANS CHRISTIAN

 

Court Documents

Amended Complaint

7/11/2018: Amended Complaint

Amended Complaint

9/21/2018: Amended Complaint

Answer

11/19/2018: Answer

Opposition

12/31/2018: Opposition

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

1/8/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Reply

1/8/2019: Reply

Minute Order

1/15/2019: Minute Order

Declaration

1/29/2019: Declaration

Answer

2/8/2019: Answer

Notice

2/21/2019: Notice

Other -

3/28/2019: Other -

Other -

3/29/2019: Other -

Declaration

5/2/2019: Declaration

Declaration

5/2/2019: Declaration

Motion for Summary Judgment

5/2/2019: Motion for Summary Judgment

Separate Statement

5/2/2019: Separate Statement

Opposition

5/9/2019: Opposition

Case Management Statement

5/14/2019: Case Management Statement

97 More Documents Available

 

Docket Entries

  • 06/14/2019
  • Request for Dismissal; Filed by Hanson Aggregates, LLC (Cross-Complainant)

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  • 06/13/2019
  • Request for Dismissal; Filed by WEST COAST SAND AND GRAVEL INC (BC662419) (Cross-Defendant)

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  • 05/30/2019
  • Report and Recommendation of Discovery Referee re Plaintiff' Motion #102 to Quash Subpoena Issued by Defendant to J. David Nick, Esq. and Request for Sanctions; Filed by Honorable Joe W. Hilberman (Ret.) (Non-Party)

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  • 05/29/2019
  • at 08:30 AM in Department S27, Mark C. Kim, Presiding; Case Management Conference - Held

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  • 05/29/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

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  • 05/28/2019
  • Stipulation and Order (JOINT STIPULATION TO CONTINUE TRIAL, TO CONTINUE DEFENDANT LONG BEACH UNIFIED SCHOOL DISTRICT'S MOTIN FOR SUMMARY OF JUDGEMENT, AND ALL RELATED DATES; [ PROPOSED] ORDER); Filed by LONG BEACH UNITED SCHOOL DISTRICT (Defendant)

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  • 05/23/2019
  • Report and Recommendation of Discovery Referee re Defendant Long Beach Unified School District's Ex Parte Application for an Order Allowing it to File an Untimely Opposition to Plaintiff's Motion for Protective Order, or, in the alternative, for an Order; Filed by Honorable Joe W. Hilberman (Ret.) (Non-Party)

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  • 05/21/2019
  • Reply (Defendant Long Beach Unified School District?s Sur-Reply Brief in Opposition to Plaintiffs? Motion #102 to Quash Subpoena Issued by the District to J. David Nick, Esq. and Request for Sanctions); Filed by LONG BEACH UNITED SCHOOL DISTRICT (Defendant)

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  • 05/14/2019
  • Case Management Statement; Filed by HOWARD CONTRACTING INC (BC662419) (Defendant); LINIK CORP (BC662419) (Defendant); PINNER CONSTRUCTION CO INC (BC662419) (Defendant)

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  • 05/14/2019
  • Case Management Statement; Filed by MARGARET WILLIAMS LLC (Plaintiff)

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271 More Docket Entries
  • 12/02/2016
  • at 08:30 AM in Department S27; Case Management Conference - Not Held - Advanced and Vacated

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  • 11/23/2016
  • Affidavit of Mailing; Filed by MARGARET WILLIAMS - INDIV. (Plaintiff); MARGARET WILLIAMS LLC (Plaintiff)

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  • 11/23/2016
  • Case Management Statement; Filed by Plaintiff

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  • 11/15/2016
  • Substitution of Attorney; Filed by Plaintiff

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  • 11/07/2016
  • at 1:30 PM in Department S27; Unknown Event Type - Held

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  • 11/07/2016
  • Minute order entered: 2016-11-07 00:00:00; Filed by Clerk

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  • 09/19/2016
  • at 08:30 AM in Department S27; Order to Show Cause Re: Failure to File Proof of Service - Held - Continued

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  • 09/19/2016
  • Minute order entered: 2016-09-19 00:00:00; Filed by Clerk

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  • 07/05/2016
  • Complaint; Filed by MARGARET WILLIAMS - INDIV. (Plaintiff); MARGARET WILLIAMS LLC (Plaintiff)

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  • 07/05/2016
  • Summons; Filed by Plaintiff

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Tentative Rulings

Case Number: NC060708    Hearing Date: October 27, 2020    Dept: S27

  1. Background Facts

Plaintiffs, Margaret Williams and Margaret Williams, LLC (“MWL”) filed NC060708 against Defendant, Long Beach Unified School District (“LBUSD”) for:

1. Breach of Contract

2. Breach of Implied Good Faith Covenant

3. Negligence – Premises Liability

4. Retaliation (Gov’t Code §12653)

5. Strict Liability Ultrahazardous Activity

6. Assault

7. Battery

8. Public Nuisance

9. IIED

10. NIED

The crux of Plaintiffs’ complaint is that the individual plaintiff suffered arsenic poisoning in connection with the clean-up of an LBUSD site, and the entity plaintiff incurred economic damages as a result of the toxic site. Plaintiffs’ operative complaint is the Third Amended Complaint, filed on 7/11/18. The Court sustained a demurrer to the fifth and sixth causes of action without leave to amend, and overruled a demurrer to the remainder of the TAC, which LBUSD subsequently answered.

The individual plaintiff also filed BC662419 against Defendants, Pinner Construction Co., Inc., Linik Corp., and Howard Contracting, Inc., alleging they were responsible, in whole or in part, for her arsenic poisoning. Pinner and Howard, in turn, cross-complained against various subcontractors, contending they were the entities at fault. There are also cross-complaints among and between the various subcontractors.

The two cases have been consolidated.

  1. Relevant Facts Relating to Anti-SLAPP Motion

LBUSD filed a cross-complaint against MWL for indemnification and related claims. On 3/08/18, the Court granted MWL’s special motion to strike the cross-complaint, finding (a) the cross-complaint arose out of protected litigation activity (the filing of the complaint in this action), and (b) LBUSD was not likely to succeed on the merits of the cross-complaint. LBUSD moved for reconsideration, and the Court denied the motion. LBUSD appealed.

On 12/09/19, the Court of Appeals issued its published opinion in the case (43 Cal.App.5th 87). In a nutshell, the opinion indicates that the cross-complaint for indemnification arises out of the filing of the original complaint in this litigation, and LBUSD is not likely to succeed on the cross-complaint because the indemnification contract that forms the basis of the cross-complaint is both procedurally and substantively unconscionable, as it would force MWL to pay for the very litigation it itself was prosecuting against LBUSD.

  1. Background Facts Relating to §998 Offer

On 12/10/19, Defendants served a §998 offer on Plaintiff, MWL. The caption of the offer includes both LBUSD and also Pinner/Howard/Linik. The body of the offer also lists both the District and also the contractors. The offer is for $100,000, and states, “This sum is exclusive of any and all costs and expenses, attorney fees and interest in this action.”

On 1/17/20, LBUSD’s attorney wrote to MWL’s attorney, indicating that LBUSD’s §998 offer would remain open until 1/23/20 (it would have otherwise expired on 1/10/20, per §998).

On 1/23/20, MWL’s attorney wrote to LBUSD’s attorney, indicating her acceptance of the §998 offer was enclosed. MWL’s acceptance cover letter includes a statement that MWL’s acceptance is based on her understanding, which the parties confirmed, that acceptance does not constitute a waiver and release of her entitlement to recover attorneys’ fees, costs, or interest “in connection with the anti-SLAPP motion she (sic) filed on the Cross-Complaint.” MWL went on to state, “Accordingly, Plaintiff Margaret Williams, LLC accepts Defendants’ offer to pay the sum of $100,000, exclusive of any fees, costs, and interest, the amount of which will be determined on future motions or applications.” The same day, MWL filed, with the Court, a Notice of Acceptance of Defendants’ Offer to Compromise. The Notice indicates (1) MWL accepts the offer to have judgment entered in the amount of $100,000 on its complaint, (b) the acceptance is exclusive of attorneys’ fees, interest, and costs, and (c) the acceptance is without prejudice to Margaret Williams’s right, as an individual, to continue to prosecute all claims against all defendants. Notably, the copy of the §998 offer attached as an exhibit to the notice of acceptance is NOT signed by MWL or its counsel.

Concurrent with the Notice of Acceptance, Plaintiff filed a Proposed Judgment. The Proposed Judgment was in favor of MWL and against the District and the contractors in the total amount of $100,000, exclusive of attorneys’ fees, interest, and costs. LBUSD filed an Objection to the Proposed Judgment. The Objection was on the ground that the Proposed Judgment did not conform to the Offer, because (a) Plaintiff is not entitled to costs and disbursements, (b) Plaintiff is not entitled to attorneys’ fees, and (c) Plaintiff is not entitled to prejudgment interest. On 5/05/20, the Court issued a minute order indicating it was declining to enter the Proposed Judgment; the Court noted that the offer was a stipulation to compromise, not a stipulation for entry of judgment.

  1. Motion to Tax Costs
  1. Parties’ Positions

    On 3/24/20, MWL filed a memorandum of costs on appeal. MWL seeks to recover a variety of costs, the bulk of which is $149,730 in attorneys’ fees.

    On 4/10/20, LBUSD timely filed a motion to tax costs. LBUSD seeks to tax all of the costs as “unsupported.” It also seeks to tax the attorneys’ fees as excessive.

  2. Costs

    LBUSD argues MWL’s costs of $1576.55, which includes items such as filing fees, court reporter costs, printing and copying, and transmission of papers, should be taxed because MWL did not provide support for the costs with the memorandum of costs. Doing so is not required. Jones v. Dumrichab (1998) 63 Cal.App.4th 1258, 1267. Instead, the party filing the motion to tax costs has the initial burden to show that the challenged costs are unreasonable, and must meet that burden through competent evidence. See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-1114. Pursuant to Ladas v. California State Auto Ass’n (1993) 19 Cal.App.4th 761, 775-776, if the costs appear reasonable on their face, and if the motion to strike does not show them to be unreasonable with competent evidence, the costs must be allowed. LBUSD does not provide any meaningful discussion of how or why the $1576.55 in costs are not reasonable, and the Court finds they are prima facie reasonable. The motion to tax them is therefore denied.

  3. Attorneys’ Fees

    The meat of the motion is the claimed $149,730 in attorneys’ fees. MWL seeks to recover 65.6 hours at the rate of $925/hour, 8.7 hours at the rate of $650/hour, 23.4 hours at the rate of $600/hour, 2.0 hours at the rate of $400/hour, 11 hours at the rate of $400/hour, and 25.9 paralegal hours at the rate of $300/hour. MWL also seeks to have the Court apply a 1.5 multiplier. MWL attaches its billing records as Exhibit A to the memorandum of costs.

    LBUSD argues the attorneys’ fees should be reduced because (a) no multiplier is appropriate, (b) the hourly rates claimed are excessive, (c) the number of hours claimed is excessive.

  1. Multiplier

    The first issue is whether or not the Court should apply a multiplier. The lodestar multiplier factors include, “the novelty and difficulty of the questions involved; the skill displayed in presenting them; the extent to which the nature of the litigation precluded other employment by the attorneys; the contingent nature of the fee award (except as mitigated by the client's agreement to pay some portion of the fee regardless of the outcome); the success achieved (including all positive results from litigation—i.e., changes in company policy, dollar value of settlement benefits); and in class actions, the rate of acceptance of the benefit offered to class members (measures one aspect of overall success—i.e., the degree to which the settlement benefits were of interest to class members).” Serrano v. Priest (“Serrano III”) (1977) 20 Cal.3d 25, 49.

    The parties agree that the primary factor in determining whether or not to award a multiplier is whether or not the attorney’s work is contingent in nature. See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138. MWL argues its attorneys are working on this case on a contingent basis, and therefore a fee multiplier is appropriate. The request made on this motion, however, is for fees spent defending LBUSD’s cross-complaint, not prosecuting MWL’s complaint. While a complaint can be prosecuted on a contingency basis, it is not clear how the defense of a cross-complaint can be contingent; if the defense is successful, there is no compensatory award from which to take a percentage fee.

    MWL failed to show that it defended the cross-complaint on a contingent basis. It also failed to show that any other factor supports imposition of a multiplier on the fee award. The request for a multiplier is therefore denied.

  2. Hourly Rates

    The second issue is whether the claimed hourly rates are reasonable. The attorneys’ claimed rates range from $400/hour to $925/hour. MWL also seeks to recover paralegal fees at the rate of $300/hour.

    The reasonable hourly rate is the rate changed by attorneys of similar skill and experience in the same community. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. LBUSD cites Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24 and Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 303 Cal.App.4th 852 to support its position that MWL’s fees are in excess of those that have been deemed reasonable by CA courts. In Morris, however, the court of appeals focused at length on the trial court’s discretion to set the reasonable fees of the attorneys, and merely affirmed the trial court’s use of its discretion. The court of appeals did not hold that a higher fee would have been prohibited, or would have been an abuse of that discretion. Building a Better Redondo contains similar language.

    LBUSD also argues its own attorneys’ billing rate in this case is only $195/hour. The Court is aware, however, that billing rates for public entities tend to be on the very low end of rates charged.

    MWL, on the other hand, provides evidence concerning its attorneys’ credentials and rates that have been previously approved by other trial courts. MWL notes that the United States District Court, between 2013 and 2015, approved rates for its attorneys ranging from $200/hour for its paralegal and $760/hour for its senior partner. If $760 were increased by 3% a year from 2015 to 2020, the result would be $881/hour, which is not far off from the requested $925/hour. If $200 were increased by 3% a year, the result would be $232/hour.

    The Court is concerned about awarding a paralegal $300/hour, which is more than many lawyers in the County of Los Angeles charge. The Court also finds $925 to be on the very high end of rates charged by attorneys in LA County. The Court is inclined, across the board, to reduce the billing rates by 1/3 to bring them in line with attorneys doing similar work in LA County.

  3. Number of Hours Billed

    LBUSD’s final argument is that the number of hours billed is excessive. LBUSD argues (a) MWL’s attorneys improperly used vague block-billing, (b) tasks billed are duplicative, (c) MWL used senior attorneys to complete unsophisticated tasks, and (d) MWL seeks compensation for administrative tasks.

    In opposition, MWL argues the block billing is not improper because all of the tasks in the blocks are compensable. It argues the tasks are not duplicative, and it was necessary for senior attorneys to be involved in every aspect of the litigation due to the sophisticated nature of the issues presented. It argues a significant reduction in hours for administrative tasks is not appropriate because the majority of the tasks are not administrative in nature.

    The Court agrees with MWL on the first three issues. Block billing is proper so long as the Court can confirm, when reviewing the billing, that all of the tasks in the block are compensable. See Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 279. LBUSD argues “review cross-complaint. Research re: SLAPP motion” is vague and improper block billing. However, both of these entries represents a compensable task. LBUSD also takes issue with the entry marked “Research re: Prong 2 issues.” In the context of an anti-SLAPP motion, this clearly refers to the second prong of the motion, which is likelihood of success on the merits. The Court finds anti-SLAPP issues are complicated in nature, and the ones presented in this motion were more complicated than typical; the fact that the court of appeals published its opinion in the case shows that the issues were novel. It was therefore appropriate both for multiple attorneys to work on the same issues, and also for senior attorneys to perform substantial work on the issues.

    LBUSD contends it submitted suggestions for reductions to the award “in Exhibit B to the Gaines Declaration.” LBUSD did not tab its exhibits in a way that rendered them searchable for the Court. The Declaration of Gaines is 145 pages in length, and includes tabs for the memorandum of costs on appeal (which is not highlighted), as well as three other declarations. The Court attempted to locate the highlighted memorandum in the 145-page document, and could not locate it. The Court is, however, concerned that MWL did not meaningfully address LBUSD’s contentions in the opposition. The Court is inclined to reduce the fees for administrative tasks, and wishes to hear argument from the parties in this regard at the time of the hearing.

    d. Conclusion

    The Court will reduce the total award by 33%, representing a reduction in the reasonable hourly rate of the attorneys for MWL. The Court will not award a multiplier. The Court will award the vast majority of the hours billed, but wishes to hear argument from the parties about the administrative tasks billed at the time of the hearing.

  1. Motion for Attorneys’ Fees

Separate and apart from the attorneys’ fees MWL seeks in connection with its anti-SLAPP motion and subsequent appeal, MWL seeks to recover attorneys’ fees on its own complaint in connection with the parties’ settlement. Both LBUSD and the contractors oppose the motion. The following issues are presented by way of the motion:

Case Number: NC060708    Hearing Date: March 05, 2020    Dept: S27

TR: DENY, except the unopposed motion for summary adjudication of strict liability – ultrahazardous activity.

INTRODUCTION

Defendant LBUSD moves for summary judgment, or in the alternative, summary adjudication of all causes of action. Defendant argues Williams’ premises liability, strict liability, assault, battery, public nuisance, intentional infliction of emotional distress, and negligent infliction of emotional distress claims fail because Williams cannot prove causation between her alleged exposure to arsenic at the Newcomb Academy School construction site, between June 1, 2016 and June 3, 2015, and any resulting injury. Williams’s retaliation claim fails because Defendant did not employ Williams. MWL’s breach of contract and breach of implied covenant of good faith and fair dealing fail because MWL cannot establish its performance of the underlying contract, excuse for nonperformance, or any unfair interference with MWL’s right to receive the benefits of the contract or resulting harm.

MWL has accepted a Section 998 offer to compromise for its contract claims against LBUSD. The MSJ/MSA is moot as to MWL’s two causes of action.

ALLEGATIONS

In 2006 Plaintiff Margaret Williams contracted with LBUSD to serve as “Facilities Consultant in charge of overseeing environmental compliance with LBUSD construction sites.” In 2013 she entered a second contract with LBUSD to provide “project management and planning consulting services for the facilities development and planning branch.”

One project was the site of the Newcomb Academy.

In this consolidated complaint she brings suit against the general contractor, Pinner Construction Co., and a sub-contractor, Howard Contracting, Inc., and LBUSD.

Plaintiff regularly visited the Newcomb site during construction to perform her services.

Plaintiff alleges Pinner and Howard “brought unapproved contaminated CAB on the site.” ”CAB” is an abbreviation for “crushed aggregate base” commonly known as gravel. The complaint alleges that the presence of CAB violated “environmental import policy and contract specifications, as well as governing environmental safety laws and regulations.”

Plaintiff in her role as manager of environmental compliance issued a directive to another sub-contractor, Linik, to have the CAB removed. Linik allegedly ignored this directive and the CAB remained on site for two years.

Throughout 2013 and 2014 Plaintiff attempted to resolve “the situation” through discussions with Linik and LBUSD. The “issue” was not resolved.

In March 2015 Pinner removed the CAB, but there “was a lack of proper environmental controls and a lack of fugitive dust control at the site.” The CAB was “arsenic impacted.”

Plaintiff “attempted to mandate” the defendants to “create site conditions that were going to be protective of human health.”

On May 4, 2015, Plaintiff's assistant visited the Newcomb site and was surprised to observe that arsenic contaminated material had already been excavated and dumped on a stockpile.” This allegedly was in violation of LBUSD environmental import/export and other contractual specifications. On May 5, 2015 a second excavation was brought onto the site by Howard and stockpiled.

On June 1, 2015 the second stockpile was scheduled “for loading.” Plaintiff was present and discovered there “were no dust control provisions in place.”

On June 1-4, 2015 Plaintiff came into contact with the CAB, arsenic contaminated soil and dust particles containing arsenic.

Plaintiff suffered arsenic poisoning.

EVIDENTIARY OBJECTIONS/JUDICIAL NOTICE

Plaintiff’s evidentiary objections are overruled.

Defendants’ evidentiary objection #1 is overruled, and #2 is sustained.

Plaintiff’s request for judicial notice is granted. (Evid. Code § 452(c),(d), & (h).

DISCUSSION

Causation for Williams’s Causes of Action Arising from Personal Injury (Premises Liability, Battery, Assault, Public Nuisance, IIED, and NIED)

Defendant LBUSD argues Plaintiff Williams cannot establish the element of causation required for each of her causes of action arising from her alleged arsenic poisoning (Premises Liability, Battery, Assault, Public Nuisance, IIED, and NIED) because the only dust monitoring, done on the only two days Plaintiff was allegedly exposed to arsenic from the CAB dust, provided no information on arsenic concentrations. (UMF 41.) Further, Williams’s urine or blood tests discussed in the Pietruszka Declaration did not reflect whether Williams was exposed to inorganic arsenic from the CAB at Newcomb Academy as opposed to less toxic, organic arsenic found in food. (UMFs 43-46.) Williams’s doctor, Steve Offerman, stated her arsenic levels were not related to inhalation but rather from inadvertent hand/mouth exposure. (UMF 47.) The Napier Declaration shows air monitoring for arsenic was never conducted and soil sample would not have indicated the arsenic level of the CAB in any particular area, undercutting Williams’s attempts to establish her work at Newcomb caused her arsenic poisoning. (See Napier Dec. at 3:13-14, 3:27-4:1, and 4:1-3.)

In opposition, Williams submits expert declarations of Dr. Pietruszka (a toxicologist) and Mr. Napier (an industrial hygienist) concluding Williams suffered arsenic poisoning as a result of her exposure to contaminated material at Newcomb Academy.

The burden of a plaintiff in a toxic tort case is to demonstrate “that exposure to the defendant’s [toxic] products was, in reasonable medical probability, a substantial factor in causing or contributing to his risk of [injury].” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 957-958.) “The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” (Id. at p. 978.)

Here, there is a triable issue on causation of Williams’s arsenic poisoning because Williams’s arsenic poisoning is undisputed and Williams’s expert declaration state her exposure to arsenic at Newcomb Academy was a substantial factor in causing her arsenic poisoning. Contrary to LBUSD’s characterization, the Napier Declaration concludes based on sufficient evidence and by sufficient methods that Plaintiff was exposed to elevated levels of arsenic. After describing the two methods of accurately assessing arsenic exposure and ruling out air monitoring as one of those methods, Napier states that under biological monitoring of Williams following a significant dust event Williams was exposed to arsenic levels in the dust as high as 5.682 mg/m3, which greatly exceeds the South Coast Air Quality Management District’s proscribed level of 0.05 mg/m3. (Napier Dec. at p. 3.) Napier next concludes soil monitoring would not accurately measure Williams’s exposure to arsenic in the CAB dust. Napier also opines that inappropriate handling of soils often creates significant exposures despite nominal arsenic content, and the evidence is very clear that the soils here were mishandled. (Napier Dec. at p. 4.) Napier concludes it is clear Williams was exposed to arsenic laden dust at Newcomb Academy and no creditable discussion could otherwise explain the levels of arsenic Williams’s doctors at Kaiser found in Williams’s tissue shortly after working at Newcomb Academy. (Napier Dec. at p. 4.) Additionally, the Pietruszka Declaration concludes Williams suffered arsenic poisoning because her symptoms and the toxicological testing of her blood and urine are all consistent with arsenic poisoning and inconsistent with other potential explanations like vitamin B12 deficiency. (Pietruszka Dec. at pp. 8-9.) While Dr. Pietruszka extensively discusses and disagrees with the expert opinions presented with the construction contractor’s prior motion for summary judgment and those expert opinions are not at issue here, the digression does not invalidate Dr. Pietruszka’s conclusion that Williams has suffered arsenic poisoning. (See Pietruszka Dec. at pp. 9-15.) Thus, the Pietruszka Declaration diagnoses Williams with arsenic poisoning and the Napier Declaration establishes the arsenic poisoning was likely caused by Williams’s exposure to CAB dust from Newcomb Academy, creating a triable issue of material fact on the causation element of Williams’s causes of action arising from her alleged arsenic poisoning (Premises Liability, Battery, Assault, Public Nuisance, IIED, and NIED).

Accordingly, the motion for summary judgment is DENIED.

Williams’s Premises Liability Claim

LBUSD further argues any dangerous condition would have been readily apparent to Williams because Williams was the one who originally identified the elevated levels of arsenic before January 4, 2014. (UMF 33.) Williams admits she was aware of dust control issues in mid to late May of 2015. (UMFs 41,50.) Premises liability may not be imposed on a public entity when the danger of its property is readily apparent. (Biscotti v. Yuba City Unified School Dist. (2007) 15 Cal.App.4th 554, 560.)

In opposition, Williams argues LBUSD created a dangerous condition by allowing 26.15 tons of arsenic-contaminated CAB onto the construction site while failing to suppress the resulting dust created a risk to any visitor to the construction site. Further, LBUSD is not insulated from liability because the construction contractors failed to mitigate the arsenic-contaminated dust at Newcomb Academy because LBUSD’s negligence combined with the contractor’s negligence. Also, LBUSD ratified the construction contractors’ conduct by repeatedly failing to mitigate the dangerous dust after Williams’s warnings. (AMFs 54-56, 58, 64-68, 80-110 and 91-94.) Additionally, Williams is not required to prove she was not contributorily negligent, for being exposed to dust at Newcomb, to prove her prima facie claim of a dangerous condition on public property. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 768.) Lastly, the danger of arsenic poisoning from CAB dust was not readily apparent to Williams because (1) Williams’s specialized knowledge of environmental contaminants does not affect the standard of care and (2) Williams’s specialized knowledge only covered chronic exposures to arsenic, not the acute exposure she suffered. (AMF 124-127.)

Here, Williams has established a triable issue of material fact as to whether the dangerous condition of arsenic-contaminated dust at Newcomb Academy was readily apparent to Williams or not because Williams has presented unrebutted evidence that even if Williams’s specialized knowledge could affect the standard of care LBUSD owed here, Williams’s specialized knowledge was limited to the dangers of chronic arsenic exposure from contaminated soil instead of acute exposure. (AMFs 124-127.) Despite claiming Williams’s argument is disingenuous, LBUSD presents no argument or evidence to contradict Williams’s declaration that she did not know she could suffer arsenic poisoning and the accompanying neurological damages from acute, as opposed to chronic, exposure to arsenic-contaminated dust. Thus, Williams has made a triable issue of whether the specific risk of harm Williams suffered was readily apparent regardless of Williams’s specialized knowledge.

Accordingly, summary adjudication of Williams’s premises liability claim is DENIED.

Extreme and Outrageous Conduct for Williams’s IIED Claim

LBUSD argues Williams cannot prove any extreme or outrageous conduct because the conduct Williams alleges – wrongfully terminating Williams and willfully ignoring Williams’s requests for LBUSD to assume responsibility for preventing serious harm to human health – is not outrageous as a matter of law. The District’s contract was with MWL only, not Williams individually. (UMFs 2, 4, 23.) The termination of a business relationship is not the type of outrageous conduct required to support an IIED claim. (Unterberger v. Red Bull N. Am., Inc. (2008) 162 Cal.App.4th 414, 423.) Failing to assume responsibility for the CAB is not outrageous because (1) removing a roof despite predictions of rain and ignoring the homeowner’s calls once it started to rain inside was not outrageous and (2) directing an employee to keep quiet about fraud and discriminatorily terminating protected employees was not outrageous. (Fuentes v. Perez (1977) 66 Cal.App.3d 163, 165; Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 480; Janken v. GM Hughes Electronics (1996) 4 Cal.App.4th 55, 80.) Here, Williams also complains of a personnel management activity or termination of a business relationship, neither of which support an IIED claim.

In opposition, Williams argues LBUSD’s conduct need only have been reckless to support IIED liability and LBUSD’s conduct was extreme and outrageous because it violated state statutes. Williams analogizes to Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1069 in which a tenant sufficiently pleaded IIED against a landlord who ignored a tenant’s complaints about toxic mold in the apartment.

Here, Williams has raised a triable issue as to extreme and outrageous conduct based on LBUSD recklessly ignoring Williams’s warnings about the dangers of arsenic-contaminated dust while LBUSD knew that Williams was on site being exposed to that dust. LBUSD has failed to distinguish Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1069. Although LBUSD contends Williams cannot recover in an IIED claim for termination of a business relationship, ignoring an person’s warnings that resulted in severe property damages, directing an employee to keep quiet about fraud, or discriminatorily terminating protected employees, LBUSD offers no case law holding Williams cannot recover on an IIED claim based on LBUSD ignoring warnings that put Williams at risk of permanent physical and neurological injury from a toxic substance.

Accordingly, the motion for summary adjudication of the IIED claim is DENIED.

Duty of Care for Williams’s NIED Claim

LBUSD argues none of its employees owed Williams a duty of care necessary for her negligent infliction of emotional distress claim because Williams has failed to identify any statutory or contractual duty and the factors for finding a duty at common law do not suggest a duty existed. The factors are: the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm. (Ratcliff Architecture v. Vanir Construction Management, Inc. (2001) 88 Cal.App.4th 595, 605.) A duty should not be imposed here because all LBUSD’s activities were related to managing the Newcomb Academy construction, and once LBUSD entered into the Voluntary Cleanup Agreement (“VCA”) Williams had authority to shut down the construction and protect herself against any harm.

In opposition, Williams appears to apply the same arguments made above against summary adjudication of her IIED claim.

As discussed above, LBUSD has offered no case law holding LBUSD had no statutory duty to heed its environmental consultant’s warnings about the dangers of toxic arsenic dust, which dust resulted in permanent physical and neurological injury.

Accordingly, the motion for summary adjudication of the NIED claim is DENIED.

Serious Emotional Distress for Williams’s IIED and NIED Claims

LBUSD argues Williams did not suffer the kind of serious emotional distress required for an IIED or NIED claim because Williams merely alleges she was emotionally distressed because the MWL contract was terminated, which cannot possibly be distress of such substantial and enduring quality that Williams would not be expected to endure it.

In opposition, Williams argues she has shown serious emotional distress as a result of acquiring a disabling condition. (Harris Dec., Ex. 40, Response to Form Interrogatory 6.2 at p. 632:2-3.)

Here, Williams has created a triable issue of material fact by presenting unrebutted evidence of serious emotional distress resulting from her arsenic poisoning and the accompanying neurological damage by presenting her interrogatory responses showing she has panic attacks. (Harris Dec., Ex. 40, Response to Form Interrogatory 6.2 at p. 632:2-3.)

Accordingly, summary adjudication of Williams’s IIED and NIED claims cannot be based on lack of serious emotional distress. The motion for summary adjudication of the IIED and NIED claims is DENIED.

Williams’s Whistleblower Retaliation Claim

LBUSD argues Williams’s claim for whistleblower retaliation under California’s False Claims Act, Government Code section 12653, fails because (1) Williams was not an employee, contractor, or agent of LBUSD, and (2) the contracting entity, MWL, cannot establish the required elements of protected activity, notice to LBUSD, and causation. First, Williams was not an employee, contractor, or agent because Williams was only employed by MWL, LBUSD only contracted with MWL, and LBUSD explicitly withheld consent for Williams to act as LBUSD’s agent in the contract between LBUSD and MWL. Second, MWL cannot prove LBUSD terminated the contract with MWL because MWL reported the allegedly fraudulent billing practices of the construction contractor, Pinner. MWL admitted LBUSD terminated MWL’s contract because of (1) Williams’s June 7, 2015 email to LBUSD; (2) Williams’s position prohibiting soil from Newcomb Academy to be used at other LBUSD construction sites; and (3) Williams’s attempts to enforce dust control rules. (UMFs 59-60.) MWL has no evidence any contractor defrauded the government on the Newcomb Academy construction.

In opposition, Williams argues the whistleblower retaliation claim stands because (1) Williams was an agent or contractor of LBUSD; (2) Williams was terminated for attempting to stop false claims; and (3) Williams offers direct evidence that LBUSD’s reasons for terminating the MWL contract were pretextual. First, Williams was an agent of LBUSD because Williams was acting for LBUSD on environmental matters related to the Newcomb Academy project. Williams was also a contractor of LBUSD because Williams was the managing member of MWL, which LLC LBUSD forced Williams to create as a condition of contracting with LBUSD. (AMF 3-5.) The MWL contract even provided that if Williams personally could not provide services, the MWL contract automatically terminated. (AMF 7.) The Court of Appeals in this case stated MWL could reasonably expect that in entering contract to allow Williams to work for LBUSD, MWL would not be depriving Williams of any possibility of being made whole by LBUSD. (LBUSD v. MWL(2019) 43 Cal.App.5th 87, 102). Second, Williams engaged in protected activity by demanding LBUSD and its construction contractors comply with environmental regulations and policies regarding the arsenic contaminated CAB used at Newcomb Academy and intended to be reused at other school sites. The construction contractors at Newcomb Academy were presenting false claims by asking for payment for their work despite violating environmental regulations and policies. Williams was reporting the contractor’s misconduct that might have uncovered false claims for payment, which establishes a protected activity under Cordero-Sacks v. Housing Authority of City of Los Angeles (2011) 200 Cal.App.4th 1267, 1277. Third, Williams offers direct evidence that LBUSD’s proffered reason for terminating the MWL contract – failure to show up for work – was pretextual since LBUSD witness Leahy declared LBUSD’s only concern was opening the school on time and ordered Williams to return to work with no assurance the construction contractors would comply with environmental rules. MWL’s contract was also terminated shortly after Williams had protested about environmental standards by two LBUSD employees who were aware of Williams’s protests. LBUSD has also offered inconsistent explanations of when LBUSD decided to terminate MWL’s contract, raising an inference of pretext.

The CFCA “permits the recovery of civil penalties and treble damages from any person who knowingly presents a false claim for payment to the state or a political subdivision.” (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 454.) To establish a prima facie case, a plaintiff alleging retaliation under the CFCA must show: “(1) that he or she engaged in activity protected under the statute; (2) that the employer knew the plaintiff engaged in protected activity; and (3) that the employer discriminated against the plaintiff because he or she engaged in protected activity.” (Id. at p. 455.)

Here, a triable issue exists whether Williams was an agent of LBUSD for environmental supervision of the Newcomb Academy construction project. “An agent is one who represents another, called the principal, in dealings with third persons.” (Civ. Code § 2295.) It is undisputed that LBUSD contracted with MWL for environmental consulting services on the Newcomb Academy construction. (UMF 3.) It is undisputed Williams, individually, was not a party to that contract. (UMF 4.) However, there is evidence that LBUSD’s Executive Facilities Planning Manager directed Williams to create MWL as a condition of Williams’s work with LBUSD. (AMF 2.) Williams was the managing agent of MWL. (AMF 4.) Additionally, a former LBUSD employee stated that Williams personally was LBUSD’s designated representative to the Department of Toxic Substances Control (“DTSC”) for the Newcomb Academy project. (AMF 13.) Given this evidence of a unity of interest between MWL and Williams and of LBUSD making Williams personally its representative to a government agency for the Newcomb Academy project, there is a triable issue of whether Williams individually was an agent of LBUSD with standing to bring a whistleblower retaliation claim.

Here, a triable issue exists whether Williams engaged in protected activity by reporting to LBUSD violations of environmental regulations by the construction contractors because those construction contractors were billing for work that was not in compliance with their contracts with LBUSD. LBUSD presents no argument that the construction contractors billing for work that failed to comply with environmental regulations would be a false claim. It is undisputed that the CAB used at Newcomb Academy by the construction contractors was contaminated with arsenic and therefore violated environmental regulations and the construction contractors’ contracts with LBUSD. (AMFs 21-28, 31.) It is undisputed Williams protested the use of this contaminated CAB (UMF 59; AMFs 34, 38-39, 57-59, 73.) It is undisputed the construction contractors were billing for their work with the offending CAB. (AMF 71.) Nothing more is required for Williams to show she engaged in protected activity. (Cordero-Sacks v. Housing Authority of City of Los Angeles (2011) 200 Cal.App.4th 1267, 1277 (sufficient that the plaintiff was investigating a contractor for what might have been the government agency’s false claims action); accord Kaye v. Board of Trustees of San Diego County Public Law Library (2009) 179 Cal.App.4th 48, 60 (“it must be reasonably possible for the employee’s conduct to lead to a false claims action”).)

Here, a triable issue exists whether MWL and by extension Williams was terminated because Williams engaged in the protected activity of protesting against the construction contractors and LBUSD using the contaminated CAB at Newcomb Academy because there is evidence LBUSD’s proffered reason for terminating MWL’s contract was pretextual. LBUSD’s Business Services Administrator, Leahy, testified Leahy’s primary concern was preventing delays in opening Newcomb Academy and Leahy feared Williams’s protests about environmental compliance would delay that opening. (AMFs 78-79.) LBUSD terminated the MWL contract on June 9, 2015 after MWL’s employees had not shown up for three working days. (UMFs 19-20.) LBUSD considered its termination of the MWL contract “for cause” under Article IV, section 3 of the MWL contract. (Motion at 7:6-7; UMFs 19-20.) The “for cause” termination provision of the MWL contract required 14-days written notice. (UMF 5.) However, LBUSD terminated the MWL contract on Tuesday June 9, 2015 after Williams had declared MWL employees would not work after Thursday June 4, 2015, which is only three working days and only five calendar days. (UMFs 14, 19.) LBUSD’s decision to disobey its own contractual rules for terminating MWL and Williams after Williams’s escalating protests against the contaminated CAB, in addition to LBUSD’s stated concern that Williams’s protests would delay the opening of Newcomb Academy are sufficient to raise a triable issue whether or not MWL and Williams were terminated because Williams engaged in protected activity.

Accordingly, summary adjudication of Williams’s whistleblower retaliation claim is DENIED.

Intentional Act for Williams’s Assault and Battery Claims

LBUSD argues Williams cannot prove LBUSD intended to expose Williams to arsenic dust because (1) the dust was created by a construction subcontractor – Howard Construction (UMFs 35, 55); (2) there is no evidence LBUSD exposed Williams to arsenic given the problems with Williams’s causation evidence – no evidence of exposure, no evidence of arsenic in the dust at issue, no evidence of LBUSD’s intent to expose (UMFs 39-41, 43-49); and (3) Williams admitted she did not know if LBUSD intended to harm her, testifying merely that one Yumi Takahashi intended to fire Williams.

In opposition, Williams argues she need only prove willful disregard of her rights not to be battered, which is proved here by LBUSD’s refusal to control the arsenic-contaminated dust at Newcomb Academy despite warning of the hazard and because LBUSD’s conduct was wrongful since it violated environmental regulations. Williams also argues LBUSD ratified the construction contractors’ actions.

“In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.)

Here, Williams has created a triable issue as to LBUSD’s intent to batter Williams and actual battery of Williams with arsenic-contaminated dust because (1) Williams has already presented evidence above that Williams was exposed to arsenic as a result of LBUSD’s actions ratifying the construction contractor’s actions that created arsenic-contaminated dust around Williams, and (2) Williams has presented evidence above that LBUSD acted in conscious disregard of the risk of arsenic poisoning despite Williams’s repeated warnings about the dangers posed by the arsenic-contaminated CAB. Williams’s testimony that she did not know if LBUSD intended to harm her does not preclude a reasonable jury finding that LBUSD willfully disregarded Williams’s rights to breath arsenic-free air at Newcomb Academy.

Although Williams’s opposition does not use the word “assault” the Court finds that the opposition adequately addresses all of LBUSD’s arguments, which arguments apply to both the battery and assault causes of action.

Accordingly, the motion for summary judgment of Williams’s battery and assault causes of action is DENIED.

Williams’s Strict Liability – Ultra Hazardous Activity Claim

LBUSD argues Williams cannot establish LBUSD was engaged in an ultrahazardous activity because the construction involved here does not meet the factors for an ultrahazardous activity. (See Rest.2d Of Torts § 520.) The activity in question was construction to improve the facilities at Newcomb Academy, which did not involve the use of arsenic, transportation of arsenic, or handling of arsenic. (UMFs 28-29.) There are no known arsenic-contaminated products at Newcomb Academy. (UMF 30.) LBUSD argues the CAB in question was used to create a temporary parking lot and driveway to support the construction activities, and while some of the CAB contained elevated levels of arsenic, it was not used in a manner that would cause harm to humans. Construction workers that were present at the site much more frequently and for much longer than Williams have not claimed arsenic exposure. The only way arsenic from the CAB could have been dangerous was if someone ate the CAB. Lastly, arsenic is a naturally occurring substance in soil and food.

Williams fails to address any elements of her claim for strict liability – ultra hazardous activity.

Accordingly, the unopposed motion for summary adjudication of Williams’s cause of action for strict liability – ultrahazardous activity is GRANTED.

Bad Faith Declaration

The Court finds nothing in Williams’s or Plaintiffs’ counsel’s declaration to support LBUSD’s charge that those declarations were made in bad faith.

Case Number: NC060708    Hearing Date: February 27, 2020    Dept: S27

INTRODUCTION

Defendants Pinner Construction Co., Inc., Howard Contracting, Inc., and Linik Corp. move for summary judgment, or in the alternative, summary adjudication of all causes of action. Defendants argue that Plaintiff cannot prove causation between her alleged exposure to arsenic at the Newcomb Academy School construction site, between June 1, 2016 and June 3, 2015, and any resulting injury.

ALLEGATIONS

In 2006 Plaintiff Margaret Williams contracted with LBUSD to serve as “Facilities Consultant in charge of overseeing environmental compliance with LBUSD construction sites.” In 2013 she entered a second contract with LBUSD to provide “project management and planning consulting services for the facilities development and planning branch.”

One project was the site of the Newcomb Academy.

In this consolidated complaint she brings suit against the general contractor, Pinner Construction Co., and a sub-contractor, Howard Contracting, Inc.

Plaintiff regularly visited the Newcomb site during construction to perform her services.

Plaintiff alleges Pinner and Howard “brought unapproved contaminated CAB on the site.” ”CAB” is an abbreviation for “crushed aggregate base.” The complaint alleges that the presence of CAB violated “environmental import policy and contract specifications, as well as governing environmental safety laws and regulations.”

Plaintiff in her role as manager of environmental compliance issued a directive to another sub-contractor, Linik, to have the CAB removed. Linik allegedly ignored this directive and the CAB remained on site for two years.

Throughout 2013 and 2014 Plaintiff attempted to resolve “the situation” through discussions with Linik and LBUSD. The “issue” was not resolved.

In March 2015 Pinner removed the CAB, but there “was a lack of proper environmental controls and a lack of fugitive dust control at the site.” The CAB was “arsenic impacted.”

Plaintiff “attempted to mandate” the defendants to “create site conditions that were going to be protective of human health.”

On May 4, 2015, Plaintiff's assistant visited the Newcomb site and was surprised to observe that arsenic contaminated material had already been excavated and dumped on a stockpile.” This allegedly was in violation of LBUSD environmental import/export and other contractual specifications. On May 5, 2015 a second excavation was brought onto the site by Howard and stockpiled.

On June 1, 2015 the second stockpile was scheduled “for loading.” Plaintiff was present and discovered there “were no dust control provisions in place.”

On June 1-4, 2015 Plaintiff came into contact with the CAB, arsenic contaminated soil and dust particles containing arsenic.

Plaintiff suffered arsenic poisoning.

EVIDENTIARY OBJECTIONS/JUDICIAL NOTICE

Plaintiff’s evidentiary objections are overruled.

Defendants’ evidentiary objection #1 is overruled, and #2 is sustained.

Plaintiff’s request for judicial notice is granted. (Evid. Code § 452(c),(d), & (h).

DISCUSSION

Defendants argue that Plaintiff’s discovery responses are factually devoid and entitle Defendants to have the burden shifted in their favor.

Union Bank v. Superior Court (1995) 31 Cal.App.4th 573 holds that factually devoid answers to interrogatories are sufficient to shift the burden to plaintiffs and require plaintiffs to prove their case – “Now, a moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2). Once the burden shifts, as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” (Id. 590.)

Second, Defendants argue that their expert witnesses establish there is no causation. Defense internist William P. Klein, M.D., opines to a reasonable degree of medical certainty that Plaintiff was neither exposed to, nor injured by, arsenic present at the Newcomb site. (UMF No. 27-30.) Defense toxicologist Joyce S. Tsuji, Ph.D., opines to a reasonable degree of scientific certainty that Plaintiff neither had sufficient exposure, nor was injured by, arsenic at the Newcomb site. (UMF No. 34-36.) Defense industrial hygienist Renee Kalmes opines that Plaintiff was not subject to a significant (if any) airborne arsenic at the Newcomb site between June 1, 2015 and June 3, 2015, to adversely affect Plaintiff’s health. (UMF Nos. 44-46.)

Based on the evidence presented, Defendants have met their burden to show that Plaintiff cannot prove causation. Now the burden shifts to Plaintiff to create a triable issue.

In opposition, Plaintiff presents the expert opinion of Marvin Pietruszka, M.D., a Board Certified Forensic Toxicologist. He states that all of the experts for the defense have arrived at an erroneous conclusion because they do not take into consideration the extent of inhalation, potential for ingestion, and the extent and effects of dermal contact with “CAB” containing arsenic. He opines that Plaintiff suffered from arsenic poisoning. He opines that “[c]onfirmation of repeated exposure to elevated levels of arsenic within the CAB, the severity of Ms. Williams acute symptoms involving the gastrointestinal and nervous system are crucial factors that support the diagnosis of arsenic poisoning.” (Pietruszka Decl., ¶ 18.) Accordingly, there is conflicting expert testimony and Plaintiff has established a triable issue as to causation.

The motion is DENIED.