View Objection to Evidence Morgan Lewis Bockius by jolinmilioncherie

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									      CharlesJ. Malaret -State Bar No. 144001
      ZEVNIK HORTON LLP
 2    333 South Grand Avenue, Twenty First Floor
      Los Angeles, California 90071
 3    Telephone: 213.437.5200
      Facsimile:    213.437.5222
 4
     Jeffrey S. Raskin -State Bar No.169096
 5   ZEVN1K HORTON LLP
     225 Bush Street, SeventeenthFloor
 6   SanFrancisco, California 94104
     Telephone: 415.364.6300
 7   Facsimile:     415.364.6333

 8   Attorneys for Plaintiff
     KIMBERLY -CLARK CORPORATION
 9

10                            SUPERIOR COURT OF THE STATE OF CALIFORNIA
11                                             COUNTY OF SAN FRANCISCO
12
       KIMBERL y -CLARK CORPORATION,                          )     CASE    NO.401914


13                                                            )
                                PlaintijJ;                          (Ron. Richard A. Krarner)
14                                                            )
               vs.                                            )     KIMBERL Y -CLARK'S OBJECTIONS TO
                                                              \
15                                                                  ONEBEACON'S EVmENCE IN SUPPORT
       COMMERCIAL UNION INSURANCE                                   OF ITS OPPOSITION TO MOTION FOR
       COMPANY, et at.                                              SUMMARY ADJUDICATION -
16
                                                                    ONEBEACON'S DUTY TO DEFEND
17                              Defendants.                         KIMBERL Y -CLARK AGAINST
                                                                    ASBESTOS BODILY INJURY CLAIMS
18
      AND    RELATED       CROSS-ACTION.
                                                              )     Date: November 15,2002
19                                                                  Time: 2:00 p.m.
                                                                    Dept.: 304
20
                                                                    Date Filed:         December 3,2001
21                                                                  Trial Date:         None Set

22           TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

23                     Kimberly-Clark        Corporation ("Kimberly-Clark")       hereby files its Objections to certain

24   Evidence filed in support of OneBeaconInsuranceGroup's ("OneBeacon") Opposition to Kimberly-

25   Clark's Motion for Summary Adjudication Re OneBeacon's Duty to Defend Kimberly-Clark

26   Against AsbestosBodily Injury Claims.

27

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     ZEVNIK HORTON LLP                                                KIMBERL Y-CLARK'S OBJECTIONS TO ONEBEACON'S EVIDENCE
     2034082.1                                                 IN SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
     1 A.      General    Objections   to Declaration      of Bradley      J. Mortensen.        Esg.

 2             Bradley J. Mortensen is not a fact witness; he is counsel for OneBeacon Insurance Group

 3     ("OneBeacon"). Therefore, he has no basis to testify as a fact witness or to declareultimate facts,

 4     conclusions of law or legal contentions. Schaelter v. Manufacturers Bank, 104 Cal. App. 3d 70,76

 5     (1980); Snider v. Snider, 200 Cal. App. 2d 741,751 (1962). Statementsconcerning matters not

 6     within the personal knowledge of the declarant are not admissible. S & H Ins. Co. v. California State

 7     SutoAss'n,   139 Cal. App. 3d 509,514       (1983).        Furthermore, caselaw is clear that declarationsby
 8     counsel regarding facts of the caseare inadmissable. Recitations by counsel filed in opposition to

 9     motions for summary judgment are properly disregarded as inadmissable hearsay and in violation of

10     the best evidencerules becausethe facts are not within the personal knowledge of counsel.

11     Cullincini v. Demng, 53 Cal. App. 3d 908,914 (1975). Counsel is not a competent witness to testify

12     as to factual issues and therefore   a counsel's    declaration     is insufficient     to defeat summary judgment.

13     Schaefer, supra,   104 Ca1. App. 3d 70,76        (1980).     Moreover, Mr. Mortensen is proffering facts
14     which do not concern his own client, but attempts to testify as a fact witness regarding a Sentry

15     Insurance Company ("Sentry") policy. As Mr. Mortensen's declaration seeks to interpret the

16     contentsof the Sentry and OneBeaconpolicies, his declaration is in violation of the best evidence
17     rule. People v. Bizieff, 226 Cal. App. 3d 1689, 1696 (1991). The insurancepolicies and the

18     expectationsof the policyholder for any ambiguities are the best evidence of the tenns of the

19     insurancecontract. Barbaria v. IndependentElevator Co., 139 Cal. App. 2d 474,478 (1956).

20            Mr. Mortensen' s declaration also contains alleged facts which are irrelevant. The discovery

21                                                                  to
      Mr. Mortensen assertsis not relevant and therefore unnecessary OneBeacon'sopposition to

22    Kimberly-Clark's     motion, as it is irrelevant to the adjudication of the issue of OneBeacon's

23    obligation to provide a full and complete defense to Kimberly-Clark                    for asbestos bodily injury

24    claims. Thus, Mr. Mortensen's declaration should be ruled as inadmissablein its entirety, since it

25    lacks foundation, is basedupon hearsayand is not basedupon personal knowledge, and contains

26    facts which are irrelevant.

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                                                                   1
      ZEVNIK HORTON LLP                                                  KlMBERLY-CLARK'S    OBJECTIONS TO ONEBEACON'S EVIDENCE
      2034082.1                                                   IN SUPPORT OF ITS OPPOSITION TO MOnON FOR SUMMARY JUDGMENT
 1 B.              Objections    to the Declaration            of Bradlev       J. Mortensen

 2   ONEBEACON'S                EVIDENTIARY               SUPPORT:                   KIMBERLY-CLARK'S        OBJECTIONS:

 3                 Mortensen Declaration, ~ 2.                                   1.      Irrelevant, Cal. Evid. Code §§ 350, 352.
                                                                                 This infonnation is irrelevant becauseit is not
 4           On September9, 2002, OneBeacon                                      material to the instant motion. Discovery in
     servedits First Set of Interrogatories and its                                                      '
                                                                                 support of OneBeacon s alleged insurer versus
 5   First Set ofDocument Requestson Kimberly-                                   insurer equitable contribution rights against
     Clark. True and correct copies of those                                     Sentry InsuranceCompany ("Sentry") has no
 6   discovery requestsare attachedto this                                       bearing upon adjudication of the OneBeacon's
     Declaration as Exhibits A and B respectively.                               obligation to provide a full and complete
 7   Those responses  were due on October 9,2002                                 defenseto Kimberly-Clark.
     but, by agreementof the parties, responsesto
 8   those discovery requestsare now due October
     22, 2002. OneBeaconhas not yet received
 9              to
     responses those discovery requests.

10   2.            Mortensen Declaration, ~ 3                                    2.      Irrelevant, Cal. Evid. Code §§ 350, 352
                                                                                 This infonnation is irrelevant becauseit is not
11           On September13,2002, OneBeacon                                      material to the instant motion. Discovery in
     servedits First Set of Interrogatories and its                              support of OneBeacon's alleged insurer versus
12   First Set of Document Requestson SentrY                                     insurer equitable contribution rights against
     InsuranceCompany ("Sentry"). True and                                       Sentry has no bearing upon adjudication of the
13   correct copies of those discovery requestsare                               OneBeacon'sobligation to provide a full and
     attachedto this Declaration as Exhibits C and D                             complete defenseto Kimberly-Clark.
14   respectively. Those responses   were due on
     October 14,2002 but, by agreementof the
15                      to
     parties, responses those discovery requests
     are now due November 1, 2002. OneBeacon
16   has not yet received responsesto those
     discovery requests.
17
     3.           Mortensen Declaration, ~ 4,                                    3.      Inadmissible hearsay,Cal. Evid. Code
18                                                                               § 1200, lacking foundation, Evidence Code
            OneBeacon has copies of the following                                § 1401, lacking personal knowledge, Cal. Evid.
19   comprehensive general liability policies of                                 Code § 702. Kimberly-Clark does not dispute
     insurance issued to Kimberly-Clark by                                       that OneBeaconhas issuedthesepolicies, but
20   OneBeacon' s predecessors-in-interest:                                      Kimberly-Clark notes that certain referencesto
                                                                                 the policies are inaccurateas follows:
21   Policy       No.               Policy       Period
                                                                                                OneBeaconincorrectly statesthe
22   CL22-9110-059                  1/1/66-1/1/69                                               policy number as CL-£22-91110-
                                                                                                106. The correct policy number
23   E22-9110087                    10/15/67       -10/15/70                                    is CL £22-9110-106.
                                    ( extended       to   1/1/72)
24                                                                                              OneBeaconincorrectly statesthe
     CL-E22-91110-106                /1/69-1/1/72                                               policy period for policy EW-
25                                                                                              9110-151 as 1/1/72-1/1/73. The
     EW-9110-151                    1/1/72-1/1/73                                               correct policy period is 1/1/72-
26                                                                                              1/1/75.
     AW-9110-158                    1/1/72-1/1/75
27
     NW-9110-162                    1/1/73-1/1/76
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                                                                            2
     ZEVNIK      HORTON liP
     2034082.1
 1 CL-CW -9110-179          1/1/76-1/1/77

 2   CL-CY-9110-187         1/1/77-1/1/78

 3   CL-CY -9110-194        1/1/78-1/1/79

 4   CL:.CY-9110-202        1/1/79-1/1/85

 5   4.      Mortensen Declaration, ~ 5.                       4.      Irrelevant, Cal. Evid. Code §§ 350, 352.
                                                               This information is irrelevant becauseit is not
 6           The only policy issued to Kimberly-               material to the instant motion. Whether or not
     Clark by Sentry of which OneBeaconhas a copy              OneBeaconhas requestedand/or obtained
 7   is Policy No.90-01658-02. That copy was                   copies of any policies issuedby has no bearing
     provided as Exhibit P to Raymond Van                      upon adjudication of the OneBeacon's
 8   Eperen's Declaration in Support ofKimberly-               obligation to provide a full and complete
     Clark's Motion for Summary Adjudication.                  defenseto Kimberly-Clark.
 9   According to the declarationspage, Policy No.
     90-01658-02 was on the risk from January 1,                       Lacking foundation, Evidence Code
10   1986 to January 1, 1987. OneBeaconhas no                  § 1401, lacking personal knowledge, Cal. Evid.
     copies of any other policy issuedby Sentry to             Code § 702. As counsel for OneBeacon,there is
     Kimberly-Clark, though it has requestedcopies             no indication that Mr. Mortensen has personal
     of such policies in its outstanding discovery             knowledge in any way with respectto what
12   requests.                                                 documentsOneBeaconhas in its possession.
                                                               Moreover, Mr. Mortensen's declaration is
13                                                             inadmissible hearsaybecausehe is testifying as
                                                               to facts contained in a policy issuedby Sentry of
14                                                             which he has no personal knowledge.

15   5.      Mortensen Declaration, ~ 6.                       5.      Irrelevant, Cal. Evid. Code §§ 350,352.
                                                               This infonnation is irrelevant because it is not
                          '
              OneBeacons outstanding discovery
16                                                             material to the instant motion. Discovery in
                                                               support of OneBeacon ' s alleged insurer versus
     includes requestsfor documentsand
17   information about the intent ofKimberly-Clark             insurer equitable contribution rights against
     and Sentry with regard to the drafting and                Sentry has no bearing upon adjudication of the
18   interpretation of the Sentry policies, including          OneBeacon's obligation to provide a full and
     the initial negotiations as to policy terms and the       complete defense to Kimberly-Clark.
19   subsequentcourse of dealing between the
     parties in handling bodily injury claims.
20
     6.      Mortensen Declaration, ~ 7.                       6.      Irrelevant, Cal. Evid. Code §§ 350,352.
21                                                             This infonnation is irrelevant becauseit is not
             OneBeacon's outstanding discovery                 material to the instant motion. Discovery to
22   includes requestsfor documentsand                         support OneBeacon's claim that a manifestation
     infonnation about the intent of Kimberly-Clark            trigger applies to the policies issuedby
23   with regard to the OneBeaconpolicies,                     OneBeaconis not relevant, inasmuch as trigger
     including the initial negotiations as to policy           of coverageis a legal question. Moreover,
24   tenns and the subsequentcourse of dealing                 OneBeaconhas been involved in the defenseof
     between the parties in handling bodily injury             the asbestossuits and has accessto all facts
25   claims.                                                   regarding negotiations as to policy tenns and the
                                                               subsequentcourse of dealing betweenthe parties
26                                                             in handling bodily injury claims.
27

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     ZEVNIK HORTON LLP                                            KIMBERL Y-CLARK'S OBJECTIONS TO ONEBEACON'S EVIDENCE
     2034082.1                                             IN SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
                                                                   evidence, e.g. the existence of an "alleged"
                                                                   agreement between the parties.
     2
          9.      Mortensen Declaration, ~ 10.                    9.       Irrelevant, Cal. Evid. Code §§ 350,352.
     1                                                            This infomIation is irrelevant becauseit is not
                  OneBeacon's outstanding discovery               material to the instant motion. Such discovery
     4    includes requestsfor documentsand                                                        to
                                                                  is irrelevant, and unnecessary, this motion,
          inforn1ationabout where the negotiations                since OneBeaconhas been unable to
     5    resulting in the issuanceof the Sentry and              demonstratethe existenceof a conflict of law
          OneBeaconpolicies took place, so that all states        between California and any other state
  6       with potential interestsin this litigation may be       concerning the issueson this motion. Moreover,
          included in this Court's choice of law analysis.        OneBeaconhas accessto all facts regarding
  7                                                               negotiations as to policies issuedby OneBeacon.
                                                                  Discovery relating to issuanceof insurance
  8                                                               policies issuedby Sentry in support of
                                                                  OneBeacon's alleged insurer versus insurer
  9                                                               equitable contribution rights against Sentry has
                                                                  no bearing upon adjudication of the
 10                                                               OneBeacon'sobligation to provide a full and
                                                                  complete defenseto Kimberly-Clark.
 11
          10.    Mortensen   Declaration,   ~ 11.                  10.    Inadmissible hearsay,Cal. Evid. Code
12                                                                § 1200, lacking foundation, Evidence Code
                 OneBeaconhas no infonnation as to                § 1401, lITelevant, Cal. Evid. Code §§ 350,352.
13       whether Kimberly-Clark has, in fact, paid                This is irrelevant becauseMr. Mortensen has no
         defensecosts for any of the asbestos  bodily             basis to declare ultimate facts, conclusions of
14       injury actions, or of how much was paid if               law or legal contentions. Moreover, Mr .
         Kimberly-Clark in fact made such payments.               Mortensen has no basis to interpret any
15       However, OneBeaconbelieves that any such                 obligations pursuant to a contractual relationship
         paymentsthat Kimberly-Clark may have made                between Kimberly-Clark and Sentry.
16       would have been made pursuant to Kimberly-
         Clark's contractual relationship with Sentry.                    Lacking personal knowledge, Cal. Evid.
17       Discovery on this issue is also being sought in          Code § 702. As counsel for OneBeacon, there is
         OneBeacon's pending discovery requests.                  no indication that Mr. Mortensen has personal
18                                                                knowledge in any way with respect to a
                                                                  contractual relationship between Sentry and
19
                                                                  Kimberly-Clark.
20               Mortensen Declaration, ~ 12.                     11.     Irrelevant, Cal. Evid. Code §§ 350, 352.
                                                                  This infonnation is iITelevant because it is not
21         Even ifKimberly-Clark and Sentry                       material to the instant motion. Discovery in
   respondto OneBeacon's discovery in a timely                    support of OneBeacon ' s alleged insurer versus
22 manner, their responses  will be not be received               insurer equitable contribution rights against
   in time to include relevant declarationswith                   Sentry has no bearing upon adjudication of the
23 OneBeacon'sopposition papers,and One                           OneBeacon's obligation to provide a full and
   Beaconbelieves that review of the responses                    complete defense to Kimberly-Clark.
24 will not be possible before the scheduled                      Moreover, discovery in support of OneBeacon ' s
   argumentdate on November 15, 2002. In                          claim that a manifestation trigger applies to the
25 addition, to ascertainwhether the Coosa River                  policies issued by OneBeacon is not relevant,
   loss runs include asbestos bodily injury claims                inasmuch as trigger of coverage is a legal
26 may require OneBeaconto deposeclaims                           question.
   handlers and other former employeesof
27 OneBeaconand/or Kimberly-Clark. It is
   extremely unlikely that such depositions could
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                                                              5

         ZEVNIK HORTON UP
                                                                  KIMBERLY-CLARK'S OBJECTIONSTO ONEBEACON'S EVIDENCE
         2034082.1                                                   OF
                                                           IN SUPPORT ITS OPPOSITIONTO MOTION FOR SUMMARY JUDGMENT
     be scheduledand conductedbefore November
     15,2002.
 2
     12           Mortensen Declaration, ~ 13.                 12.     In-elevant, Ca!. Evid. Code §§ 350,352.
 3                                                             This is irrelevant becauseit is not material to the
              On August 9, 2002, I sent a number of            instant motion. It is not relevant as to
 4   letters to Kimberly-Clark's Casualty Risk                 adjudication of OneBeacon's obligation to
     Manager, Raymond Van Eperen, formally                     provide Kimberly-Clark with a full and
 5   advising him that OneBeaconwas withdrawing                complete defensetor those asbestos     bodily
     its reservation of rights, and would provide              injury claims which OneBeaconhas not
 6   Kimberly-Clark a complete defensefor all                  provided a fu11and complete defense.This is
     asbestos   bodily injury claims flied on or after         also irrelevant becauseMr. Mortensen hasno
 7   June 1, 2002. Copies ofmy letters are attached            basis to declare ultin1ate facts, conclusionsof
     as Exhibits M through O to Mr. Van Eperen's               law and legal contentions.
 8   Declaration, which was submitted by Kimberly-
     Clark in support of its motion.
 9

10                                                     Respectfully submitted,
11   November 1,2002                                   ZEVNIK HOR TON LLP
12

13                                               By:                            .6/    Ch~T           fl6~.,l-


14                                                          .~for Plaintiff
                                                       K/MBERLY-CLARK CORPORATION
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     ZEVNlK      T-IORTON   LLP                                   K1M8ERLY-CLARK'S OBJEC"fl0NS TO ONEBEACON'S~viDENCE
     2034082.1                                                       OF
                                                           IN SUPPORT ITS opposmoN TO MOTION FOR SUMMARY JUOOMENT

								
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