Case 5:08-cv JLQ -OP Document 74 Filed 06/13/11 Page 1 of 22 Page ID #:2539

Transcription

1 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 JEFFER MANGELS BUTLER & MITCHELL LLP KENNETH A. EHRLICH, (Bar No. CA 00) kehrlich@jmbm.com AMY LERNER HILL (Bar No. ) akl@jmbm.com PAUL A. KROEGER, (Bar No. CA 0) pkroeger@jmbm.com 00 Avenue of the Stars, Seventh Floor Los Angeles, California 00-0 Telephone: (0) 0-00 Facsimile: (0) 0-0 Attorneys for Plaintiff and Counter-Defendant CALMAT CO. DBA VULCAN MATERIALS COMPANY, WESTERN DIVISION CALMAT CO. dba VULCAN MATERIALS COMPANY, WESTERN DIVISION, a Delaware corporation v. Plaintiff, SAN GABRIEL VALLEY GUN CLUB, a non-profit California corporation, and DOES through 0, inclusive Defendants. SAN GABRIEL VALLEY GUN CLUB, a non-profit California corporation, v. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Counter-Claimant, CALMAT CO. dba VULCAN MATERIALS COMPANY, WESTERN DIVISION, a Delaware corporation, Counter-Defendant. CASE NO. EDCV0- WHS (OPx) PLAINTIFF TO ADDITIONAL FACTS PORTION OF THEIR RESPONSE TO PLAINTIFF S STATEMENT OF UNCONTROVERTED FACTS Date: June, 0 Time: 0:00 a.m. Dept/Judge: dept assigned to Hon. Justin L. Quackenbush Pre-Trial Conf: none set Trial: none set v

2 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #:0 Plaintiff and Counter Defendant Calmat Co. dba Vulcan Materials Company, Western Division, submits the following response to the San Gabriel Valley Gun Club s (the Gun Club ) proposed additional material facts: 0 0. When Vulcan created the Waste Pile on the Property, bullets were obviously present on the Property, and Vulcan had actual knowledge of such presence at that time. (Franklin Decl. Ex. O (Sheedy Dep.) at :-.). Thomas Sheedy was General Manager of the Fish Canyon Quarry who oversaw the intentional transfer of at least 00,000 tons of tailing from the Fish Canyon Quarry to the property Leased by the San Gabriel Valley Gun Club. (Franklin Decl. Ex. N (Sheedy Decl.) at, ).. Unsupported by the evidence cited. Mr. Sheedy is testifying as to his belief that Management committee was aware that bullets were on the Waste Pile. Mr. Sheedy expresses no personal knowledge for this testimony. This fact is irrelevant and immaterial.. Undisputed. v - -

3 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. Vulcan created the Waste Pile. Undisputed. (referred to by Vulcan itself as either a waste pile or stockpile ) at the Property. (Franklin Decl.: Ex. T (Vulcan s Response to the Fourth Set of Requests for Admissions propounded by the Club ) at :-; Ex. R (Minutes of the Regular Meeting of the Executive Committee of Crystal a California General Partnership, dated //) at (VU0); Ex. P (Calmat Memo, Summary of Gun Club Decisions, dated /0/); Ex. Z (Calmat Memo, Gun Club Rent Summary, dated /0/); Ex. AA (Calmat Memo, Gun Club Environmental Status, dated /0/)).. The creation of the Waste Pile started. None of the cited evidence reflects prior to May 0,. (Franklin Decl.: the date when Vulcan began building the Ex. U (Photograph of June, ); Ex. berm. The December, memo is V (Plf s. Resp. to RFA) at :0- inadmissible hearsay and includes only a (admitting the photograph of June, vague reference to a "waste pile" on the, accurately depicts the Leased rifle range. (Franklin Decl., Ex. P). The Property as of June, ); Ex. W. reference to the "waste pile" could have (Photograph of January, ); Ex. P related to the rock dust that the Gun Club (Calmat Memo, Summary of Gun Club requested be placed on other portions of v - -

4 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0 Decisions, dated /0/); Ex. Z (Calmat Memo, Gun Club Rent Summary, dated /0/); Ex. AA (Calmat Memo, Gun Club Environmental Status, dated /0/); Ex. Q (Gun Club s Supplemental Disclosure, Set )). the Property. (Franklin Decl., Ex. L (Phillips depo.) at :-:). The reference in that memo to the "stockpile" states, "reserve stockpile area in back of pistol/rifle range," demonstrating that the materials had not yet been placed in that area. Id. The photograph only shows that the mining tailings berm had not yet been created at that time. (Franklin Decl., Exs. U, V). The alleged "" photograph is undated and no testimony explains what it shows or when the photo was allegedly taken. (Franklin Decl., Ex. W). The attached "Quote" for a "digital scan from // LA historical negative" does not establish the date when the photograph was taken. Id. The alleged photograph and the "Quote," although included as a single exhibit, are actually two separate documents that were not transmitted or created together. Id. Exhibit W lacks foundation and is inadmissible. v - -

5 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. Vulcan did not seek permission from the Club to create the Waste Pile (Franklin Decl. Ex. N ( Sheedy Decl.) ).. The terms of Vulcan s then-current lease with the Club were not discussed during Vulcan s internal meetings concerning the creation of the Waste Pile. (Franklin Decl. Ex. O (Sheedy Dep.) at :-).. The Lease is the first Lease/License between the Parties that mentions the Waste Pile, referred to as a stockpile therein. (Compl. Exs. A-I.). Unsupported by the evidence cited. Mr. Sheedy declares only that he did not seek permission from the Gun Club -- not that no one at Vulcan sought such permission. In any event, the Gun Club consented to Vulcan s placement of the material in the waste pile. Vulcan s Statement of Uncontroverted Facts The claim that the referenced meetings concern[ed] the creation of the Waste Pile is unsupported. Instead, at the meetings the concept of moving the mining tailings onto the gun club property was discussed. (Franklin Decl., Ex. O at :-.) Otherwise, this fact is undisputed.. Undisputed. v - -

6 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. Herb Bock s has no recollection of that at all as to if the Waste Pile was transported onto the Property before or after May 0,. (Franklin Decl. Ex. B (Bock Dep.) at :-).. Rick Phillips is the most knowledgeable person associated with the Club vis-à-vis the creation of the Waste Pile. (Franklin Decl. Ex. B (Bock Dep.) at :-). 0. The Waste Pile was placed in the early to mid-0s. (Franklin Decl. Ex. L (Phillips Dep.) at :0-).. Preston Cowan directed the equipment operators who made the Waste Pile. (Franklin Decl., Ex FF (Cowan Decl.) at ).. Unsupported by the testimony cited. After making this statement, Bock states that the material was deposited by Vulcan during the midterm of the lease. (Franklin Decl, Ex. B at :- 0.) Later in Bock s deposition he testified that the time frame that Vulcan deposited the mining tailings along the impact area of the rifle range was between to. (Franklin Decl., Ex. B, : to :-).. Unsupported by the evidence cited. The cited evidence is only to Mr. Bock s belief that Rick Phillips is most knowledgeable person on the topic of the physical placement of by Vulcan of mining tailings on the property. 0. Undisputed.. Undisputed. v - -

7 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. The Waste Pile was placed in the early 0s. (Franklin Decl., Ex FF (Cowan Decl.) at ).. The Waste Pile existed as of. (Franklin Decl. Ex. B (Bock Dep.) at : to :-). v. Unsupported by the evidence cited. Mr. Cowan s declaration states that the vast majority of the tailings at issue were deposited at the leased property in the early 0s. (Franklin Decl., Ex. FF at.) Further, as noted below, Mr. Bock testified that the time frame that Vulcan deposited the mining tailings along the impact area of the rifle range was between to. (Franklin Decl., Ex. B at : to :-.). Unsupported by the evidence cited. In the quoted portion of the deposition transcript, Mr. Bock testifies that the time frame that Vulcan deposited the mining tailings along the impact area of the rifle range was between to. - -

8 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. The Waste Pile was created because Vulcan had run out of space at the Fish Canyon Quarry (i.e., Azusa Rock) to store mining tailings Vulcan was unable to sell. (Franklin Decl.: Ex. N (Sheedy Decl.) 0-; Ex O (Sheedy Dep.) at 0:-; Ex. FF (Cowan Decl.) -; L (Phillips Depo) at :-).. The placement of rock dust to prevent ricochets at the Property did not occur in the area where the Waste Pile was dumped. (Franklin Decl. Ex. L (Phillips Dep.) at :-, :-:, :-: :- to 0:-, :-).. Paul Kroeger, counsel for Vulcan, attended and participated in the deposition of Preston Cowan. (Franklin Decl. Ex. M (Cowan Dep.) at ). Undisputed that one of Vulcan s reasons for storing the mining tailings on the Gun Club property was because it had run out of alternative space.. Unsupported by the evidence cited. The mining tailings berm stretches from the impact area for the pistol range through and including the impact area for the rifle range. Phillips testified that Vulcan placed material in the impact area of the pistol range to reduce ricochets. Franklin Decl, Ex. L at :-0:; :-:. Indeed, the pistol range was eventually closed because of the ricochet threat. Id. :-.. Undisputed. v - -

9 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. Phillips expressed concern to Cowan. Unsupported by competent that Vulcan was burying lead by placing admissible evidence. Cowan s testimony the Waste Pile at the Property, and of concern expressed to him is Cowan mentioned the Concern to inadmissible hearsay. See Evidentiary Sheedy. (Franklin Decl. Ex. M (Cowan objections to Franklin Declaration. See Dep.) at :- to :-). also Franklin Declaration Ex. L (Phillips Depo.), :- ( Q. Did anyone at the gun club discuss with you having any objections to Vulcan doing this with the mining tailings? A. If there was an objection to them doing that, it was more in how close the material was placed to the 00 yard line... We didn t have any other issue with it. ).. Sheedy was Cowan s supervisor. Undisputed. when the Waste Pile was created. (See Franklin Decl. Ex. M (Cowan Dep.) at 0).. The concept of having an obligation. Undisputed. to return the Property to pristine condition was raised in the Club s internal discussions occurring after Vulcan made a request for remediation. (Franklin Decl. Ex. E (Armato Dep.) at :- to :-). v - -

10 Case :0-cv-0-JLQ -OP Document Filed 0// Page 0 of Page ID #: Armato did not have any role in negotiating any of the leases between Vulcan and the Club. (Franklin Decl. Ex. E (Armato Dep.) at :-).. Bock was designated by the Club as the person most knowledgeable regarding lease negotiations between Vulcan and the Club. (Franklin Decl. Ex. F (Objection to PMK Depo) at, ).. At no time during the negotiation of the Lease were there discussions between Vulcan and the Club about the use of lead. (Franklin Decl. Ex. B ( Bock Dep.) at :- to :). 0. Unsupported by the evidence cited. Mr. Armato testified that as far as he can remember he did not have any role in negotiating the leases. Franklin Decl., Ex. E at :-.. Undisputed.. Unsupported by the evidence cited. In the testimony provided, Mr. Bock states: Q. Do you recall any specific discussions about these terms with reagrd to the lease? A. It seemed to me there was some discussion about... giving the rock company the power to dictate what we could bring on the property.. in the way of ammunition. (Franklin Decl., Ex. B at :-) He later stated: Q: So people expected there would be lead on the property. A: Absolutely. (Franklin Decl., Ex. B at : to :. ) v - 0 -

11 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. Vulcan specifically told Wooldridge no as to getting an air quality permit for the work he intended to perform at the Club. (Franklin Decl. Ex. K (Wooldridge Dep.) at :-).. A Vulcan representative stated that Vulcan had a lot of problems with air quality now and You're [i.e., Wooldridge] not going to add to it. (Franklin Decl. Ex. K (Wooldridge Dep.) at :-).. Vulcan is currently using the Property to store the Waste Pile. (See Franklin Decl. Ex. T (Vulcan s Resp. to Requests for Admissions Set Four), No. ).. Brian Ferris, an attorney working for Vulcan, created the first draft of the Lease. (Franklin Decl. Ex. X (Transcript [not signed]) of Dep. of Brian Ferris taken May 0, 0) at :-; :-; :-).. The Lease includes an integration clause. (Compl. Ex. H, at 0 ).. Undisputed that this is an accurate characterization of Mr. Wooldridge s deposition testimony, but immaterial and irrelevant.. Unsupported by the testimony cited. Mr. Wooldridge stated that if he had a conversation directly with [anyone at Vulcan] directly. (Franklin Decl., Ex. K at :-.) This fact is also immaterial and irrelevant.. Undisputed that the Waste Pile still remains on the Property.. Unsupported by the evidence cited. Mr. Ferris testified that he did not have a specific recollection of drafting the lease. Franklin Decl., Ex. X at :-0.. Undisputed. v - -

12 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: The following text is included in the Lease. Use of Premises. Tenant agrees that the Premises shall not be used for any purpose except as a pistol, rifle, and trap and skeet range.... Tenant agrees, at its own cost and expense, to comply with all laws, rules, regulations, ordinances and statutes of any and all municipal, county, State and federal authorities which are now in effect or which may hereafter become effective pertaining to the use of the Premises and its occupancy by Tenant. Tenant shall not commit, or suffer to be committed, any waste upon the Premises, or any public or private nuisance. Tenant shall not occupy or use the Premises during the term of this Lease in such a manner as to interfere with the use... of the Premises or a part thereof after termination of this Lease Maintenance and Repair.... Upon the expiration of this Lease or any termination herein provided, Tenant shall at its sole cost and expense remove from the Premises all Tenant s personal property, and clean up and remove from the premises all rubbish and debris and turn over the premises to Landlord in good order and in a safe, sanitary condition. Should Tenant fail to do so, Landlord may at its option make those removals required above or do such work as shall be required to return the Premises to an orderly and safe, sanitary condition and the cost thereof to landlord shall be immediately repaid to Landlord. (Compl. Ex. H,, 0).. Undisputed. v - -

13 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. The term of the Lease commenced May 0,, and expired May 0, 00. (Compl. Ex. H, at ). 0. The First Amendment to Lease had a an eighteen () month rolling term, starting May 0, 00, and stated except as otherwise specifically set forth herein, all of the terms and conditions of the lease shall remain in full force and effect[,] and [e]ffective May 0, 00, the term of the Lease shall be an eighteen () month rolling term. (Compl. Ex. I). Unsupported by the evidence cited. As demonstrated in the Gun Club s proposed additional material fact no. 0, prior to May 0, 00, the Lease term was extended past May 0, 00 on an eighteen month rolling basis. (Linton Decl., Ex. I). 0. Undisputed. v - -

14 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. The presence of Spent Ammunition on the Property was clearly considered by Vulcan internally regarding the negotiation of the Lease, though Vulcan never expressed this to the Club prior to execution of the Lease. (Franklin Decl.: Ex. Y (Davis Dep.) at :-:, :-, :-, :-; Ex. P (Calmat Memo, Summary of Gun Club Decisions, dated /0/); Ex. Z (Calmat Memo, Gun Club Rent Summary, dated /0/);Ex. AA (Calmat Memo, Gun Club Environmental Status, dated /0/)).. Unsupported by competent admissible evidence and the evidence cited. Mr. Franklin s declaration does not properly authenticate the referenced memoranda. Also, Mr. Davis deposition testimony concerning the Exs. P, Z, and AA expresses no memory of the contents of the memos, what they were referring to, or if they were shown to anyone else at Vulcan. The memos are also inadmissible hearsay. Further, no evidence supports the statement that Vulcan never expressed this to the Club prior to execution of the Lease. v - -

15 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. Spent Ammunition (bullet fragments or otherwise) is never mentioned in any of the leases/licenses that were in place between and 00 regarding the Property. (Compl. Ex. A-I).. Unsupported by the evidence cited. Among other things, Paragraph of Exhibit H references the Property s allowable used as a pistol, rifle and trap and skeet range and the use of ammunition. Paragraph 0 of Exhibit H provides that the Gun Club has the obligation to clean up the Property of these substances are return the Property to a safe, sanitary condition. The term "Spent Ammunition" was created for use in this litigation; it does not have any greater legal significance. v - -

16 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. Between and 00, Vulcan was contemporaneously aware that Spent Ammunition was being used at the Property, and Vulcan believed that, for that entire period, the Club made no attempt to clean up the effects of lead ammunition use. (Franklin Decl.: Ex. BB (Vulcan s Supplemental Response to the First Set of Requests for Admissions Propounded by the Club) at :-:; Ex CC (Vulcan s Response to the First Set of Interrogatories Propounded by the Club) at :-).. Prior to 00, Vulcan never contacted the Club regarding a contention that the presence of Spent Ammunition at the Property was causing or could cause damage. (Franklin Decl. Ex. DD (Vulcan s Response to the Second Set of Interrogatories propounded by the Club) at :- to :-, :- to :-, and documents cited therein).. Unsupported by the evidence cited. None of the cited interrogatory responses support the statement that Vulcan believed for that entire period the Gun Club made no attempt to clean up the effects of lead ammunition use.. Unsupported by the evidence cited. The referenced interrogatory responses do not confirm that Vulcan failed to contact the Gun Club regarding the presence of Spent Ammunition. v - -

17 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. There were periods of time between January and November 00 when there was no lease in place (i.e., a term expired), but Vulcan did not sue the Club regarding (let alone complain about) the presence of Spent Ammunition at the Club. (Compl. Exs. G, at, H, at -; Franklin Decl. Ex. DD (Vulcan s Response to the Second Set of Interrogatories propounded by the Club) at :- to :-, :- to :-, and documents cited therein).. This is a legal issue and not a fact. See, e.g., Cal. Civ. Code ( If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly nor in any case one year. ) This "fact" is also not supported by the evidence cited by the Gun Club. Also, the claim that Vulcan did not sue the Club regarding (let along complain about) the presence of Spent Ammunition at the Club is unsupported by the evidence cited. This fact is also immaterial and irrelevant. v - -

18 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. None of the negotiation communications regarding what would eventually become the Lease mentions the possibility of the Club being responsible for cleaning up Spent Ammunition at the Property. (Franklin Decl.: Ex. GG (Marked up early version of lease); Ex. HH (Letter from Robert Carter to Brian Ferris, dated February,, with handwritten annotations); Ex, II (Letter from Brian Ferris to Robert E. Carter, dated March, with handwritten annotations); Ex. JJ (Letter from Robert Carter to Brian Ferris, dated April,, with handwritten annotations)).. Bock signed the Lease for the Club; Ferris signed the Lease. (Compl. Ex. H at ).. Unsupported by competent admissible evidence. All of the documents supporting this assertion are unauthenticated and inadmissible hearsay. In any event, the negotiations concerning the Gun Club s obligation to clean up the Property of all rubbish and debris and turn over the Premises in a safe, sanitary condition is found at Ex. GG at SGVGC00, Ex. II at SGVGC 00-, and Ex. JJ at SGVGC000-. The term "Spent Ammunition" was created for use in this litigation; it does not have any greater legal significance.. Undisputed. v - -

19 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: 0 0. The negotiation of the Lease did not. Unsupported by the evidence cited. include a conversation between Vulcan and the Club regarding cleanup of the Property. (Franklin Decl.: Ex. B (Bock Dep), at :-; Ex. X (Ferris Dep.) at 0:-, :- to :-). Mr. Bock testified that he did not recall any conversation regarding cleanup of the premises not that no such conversation occurred. (Franklin Decl., Ex. B at :-.) Likewise, Mr. Ferris testified that he did not have recollection of the negotiations or any particular element of negotiations. (Franklin Decl., Ex. X at :-.). Prior to and continuing after the. It is undisputed that Vulcan brought execution of the Lease, Vulcan intentionally placed a total of approximately 00,000 tons of waste material on top of the area that had been shot into for more than forty years prior thereto, a fact of which Vulcan was obviously aware. (Franklin Decl.: mining tailings and other material to the Gun Club. However, no competent admissible evidence supports the number of tons of waste or that Vulcan was obviously aware that there were bullet and bullet fragments in the area where the material is deposited. Ex. BB (Vulcan s Supplemental Response to the First Set of Requests for Admission propounded by the Club) at :- to :-; Ex. CC (Vulcan s Response to the First Set of Interrogatories Propounded by the Club) at :-; Ex. T (Vulcan s Response to v - -

20 Case :0-cv-0-JLQ -OP Document Filed 0// Page 0 of Page ID #: 0 0 the Fourth Set of Requests for Admissions propounded by the Club) at :-; Ex. EE (ENV America Workplan dated February 0, 00) at VMC-0, VMC-0; Ex. U (Photograph of June, ); Ex. V (Plf s. Resp. to RFA) at :0- (admitting the photograph of June,, accurately depicts the Leased Property as of June, );Ex. W (Photograph of January, ); Ex B (Bock Dep.) at :- to :-; Ex. L (Phillips Dep.) at :- ;Ex. FF (Cowan Decl.) ; Ex. N (Sheedy Decl.),. v - 0 -

21 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #: Prior to Vulcan s first request that the Club remediate the Property, Vulcan knowingly buried Spent Ammunition under a vast quantity of material that Vulcan does not intend to move. (Franklin Decl.: Ex. N (Sheedy Decl.), ; Ex. T (Vulcan s Responses to the Club s Fourth Set of Requests for Admission) Response No. at ; Ex. E ((Armato Dep.) at :-0; Ex. B (Bock Dep.) at :- :, 0:-:; Ex. G (Peddicord Report) at ; Ex. DD (Vulcan s Response to the Second Set of Interrogatories propounded by the Club) at :- to :-, :- to :-, and documents cited therein).. The Lease has a hold over provision that states holding over shall be tenancy from month to month and the Club heldover pursuant thereto. (Compl Ex. H at, 0; (Franklin Decl. Ex. KK (November, 00, letter from Ehrlich). 0. Unsupported by the evidence cited. Sheedy s declaration does not confirm that Vulcan knowingly buried Spent Ammunition but only that he (and not Vulcan) was aware of the possibility that the tailings were being placed on top of a surface where bullets were present and that he believe[s] but has no personal knowledge that he Management Committee was aware of the possibility. See also Evidentiary Objections to Franklin Declaration. None of the other evidence cited supports this claim either.. Unsupported by the evidence cited. None of the cited documents support the statement the Club held over pursuant thereto. See also Linton Decl. ; Franklin Decl., Ex. KK. v - -

22 Case :0-cv-0-JLQ -OP Document Filed 0// Page of Page ID #:0 0. Spent Ammunition can potentially be excluded from classification as hazardous waste under the Resource Conservation and Recovery Act if it is recycled. (See Franklin Dec. Ex. MM (Best Management Practices for Lead at Outdoor Shooting Ranges, created by EPA region, revised 00) at I-).. Unsupported by competent admissible evidence. The attached document from which these standards arise is inadmissible hearsay. In any event, the fact is irrelevant. In addition, the Gun Club did not recycle the spent ammunition. The term "Spent Ammunition" was created for use in this litigation; it does not have any greater legal significance. 0 DATED: June, 0 v JEFFER MANGELS BUTLER & MITCHELL LLP KENNETH A. EHRLICH AMY LERNER HILL PAUL A. KROEGER By: /s/paul A. Kroeger PAUL A. KROEGER Attorneys for Plaintiff and Counter-Defendant CALMAT CO. DBA VULCAN MATERIALS COMPANY, WESTERN DIVISION - -