Evans v. American Optical Corp. CA2/4

CourtCalifornia Court of Appeal
DecidedDecember 15, 2015
DocketB257665
StatusUnpublished

This text of Evans v. American Optical Corp. CA2/4 (Evans v. American Optical Corp. CA2/4) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. American Optical Corp. CA2/4, (Cal. Ct. App. 2015).

Opinion

Filed 12/15/15 Evans v. American Optical Corp. CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

KENNETH EVANS et al., B257665

Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. JCCP4674) v.

AMERICAN OPTICAL CORPORATION et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, Emilie Harris Elias, Judge. Affirmed. Farrise Firm, Simona A. Farrise; The Arkin Law Firm, Sharon J. Arkin for Plaintiffs and Appellants. Foley & Mansfield, Thomas J. Tarkoff, Cynthia Y. Chan; Degani & Galston, Orly Degani for Defendants and Respondents. INTRODUCTION Plaintiffs Kenneth and Dorothy Evans1 sued Fluor Corporation (Fluor), along with a host of other defendants, alleging that Kenneth Evans (Evans) developed asbestosis from his exposure to asbestos when he helped to demolish a gas cooling tower over a two to three week period in the 1950s. The trial court granted Fluor’s motion for summary judgment, concluding that plaintiffs failed to establish a triable issue of fact that Evans was exposed to asbestos from any Fluor products. We affirm. FACTUAL AND PROCEDURAL HISTORY A. Complaint Evans was diagnosed with asbestosis in 2011. Plaintiffs filed their complaint for personal injury and loss of consortium on May 15, 2012 against Fluor and multiple other corporate defendants. Plaintiffs alleged that Evans developed asbestosis as a result of his contact with a variety of asbestos-containing products over the course of his employment with Southern California Gas Company from the 1950s to the 1990s. Plaintiffs alleged causes of action for negligence, breach of implied warranty, strict products liability, fraud, conspiracy to defraud, misrepresentation and fraudulent concealment, and premises liability, as well as a derivative claim for loss of consortium by Dorothy Evans. Plaintiffs sought compensatory and punitive damages arising from the asbestos-related injuries. B. Summary Judgment 1. Fluor’s Motion Fluor moved for summary judgment or, in the alternative, summary adjudication. In its motion, Fluor relied on Evans’ written discovery responses and deposition testimony to argue that Evans lacked, and would be unable to discover, evidence to show he was exposed to asbestos from “any products or services provided by Fluor” at any time during his employment.

1 Kenneth Evans died on July 6, 2015, while this appeal was pending. We granted plaintiffs’ unopposed motion seeking to substitute his wife, Dorothy, as his successor-in- interest in this action. 2 During discovery, Fluor propounded special interrogatories and requests for production of documents seeking identification of all witnesses, documents, and “each and every fact” in support of plaintiffs’ allegations against Fluor. In response to the special interrogatories, Evans provided further details regarding his alleged exposure to asbestos: sometime in the 1950s, he helped demolish a natural gas cooling tower located at Station 90 in Avenal, California, over a period of 14-21 days. The tower, which he recalled as 60-80 feet tall, was “used to cool gas. Gas would run through copper piping into the cooling tower and water cascaded down on the piping to cool the gas.” Evans recalled that “the cooling tower had a sign on it that said ‘Fluor’ located on the northeast bottom corner.” He “assisted a demolition crew in cutting, welding, tearing, cleaning, and otherwise manipulating the cooling tower in the demolition process.” Evans’ response also echoed the general allegations in his complaint regarding Fluor, such as that “[s]ince its inception, Fluor designed, manufactured, sold, supplied, . . . installed, erected, overhauled, serviced and otherwise marketed FLUOR ASBESTOS- CONTAINING PRODUCTS for utility, commercial and industrial application.” In a similar response to Fluor’s request for production of documents, plaintiffs provided a multi-page list identifying categories of documents, such as all discovery in the instant case, the depositions of the person(s) most qualified and custodian(s) of record for Southern California Gas Company and Fluor, including all such depositions “taken in prior asbestos litigation and all exhibits thereto,” other responses or documents identified by Fluor in other cases “that are otherwise responsive but not specifically identified” (as well as several sets of identified responses), the contents of Fluor’s “own records and files,” an asbestos textbook, and various regulations and safety orders. In addition to Evans, plaintiffs identified two other witnesses who might have information supporting the claims against Fluor; both of those witnesses are deceased. Fluor also pointed to excerpts from Evans’ deposition testimony, in which Evans admitted that he did not know when the tower was built and his only basis for understanding that Fluor had built it was the “Fluor” sign he recalled on the outside of the tower. Evans also testified about the materials that made up the tower, identifying

3 redwood, copper bolts and nails, and copper pipes. He also recalled some “baffling” or “batting” on the outside of the tower, which he described as a “4-inch-wide shingle.” Evans initially testified that this batting was made of wood: “Q: And that’s like a -- your common roofing shingle? A: It was wood. Q: I see. So the . . . shingle was made out of wood, as far as you could recall? A: Yes. Q: Okay. And that’s the batting that you’ve just described? A: Yes.” However, later in the deposition, while describing his work picking up pieces of wood falling from the tower as it was being demolished by a crane, Evans testified: “[A]: The batting that was on the outside of this cooling tower was gray in color, real fuzzy looking. . . . Q: Now, when I asked you previously about the batting, you said it was wood material, the batting? A: I believe it was wood, but like I’m saying, it had that fuzz looking on it [sic]. I think it was-- I don’t know what it was.” In an additional deposition taken for the purposes of trial preservation, Evans testified that the tower’s “superstructure was redwood, and it had baffling on the outside, and I’m not sure what that was made of. It had a gray-looking, gray-looking color to it.” Asked if he recalled any of the material of the tower “resembling in any way cement,” Evans responded that the tower “was built over a cement pond.” He did not otherwise identify cement, or any other asbestos materials, as part of the tower. Evans also testified that “there was dust in the air,” during the demolition, which would get on his clothes and which he would breathe in. 2. Plaintiffs’ Opposition Plaintiffs filed an initial opposition to summary judgment in January 2014, requesting a continuance to conduct further discovery, particularly deposition testimony

4 from Union Tank Car Company (Union).2 Following a continuance of the summary judgment hearing and trial dates, plaintiffs filed a supplemental opposition containing additional evidence, including the deposition testimony of their expert, Charles Ay. They argued, as they do on appeal, that Fluor had failed to meet its initial burden to demonstrate an absence of a triable issue, and that, in any event, plaintiffs had met their burden to produce evidence from which a jury could reasonably conclude that the Avenal tower was built by Fluor and contained asbestos.

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Evans v. American Optical Corp. CA2/4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-american-optical-corp-ca24-calctapp-2015.