Filed 7/8/14 Modified and Certified for Publication 7/21/14 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ROSE MARIE GANOE et al., B248941
Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. BC449400) v.
METALCLAD INSULATION CORPORATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Emilie Elias, Judge. Reversed.
The Arkin Law Firm and Sharon J. Arkin; Farrise Firm and Simona A. Farrise
for Plaintiffs and Appellants.
McKenna, Long & Aldridge, Stephen M. Nichols, Farah S. Nicol,
Bradford J. DeJardin, David G. Arthur, Caren D. Dombrowski and J. Alan Warfield for
_______________________________________ The plaintiffs Rose Marie Ganoe et al.1 appeal the trial court’s order granting
summary judgment in favor of the defendant Metalclad Insulation Corporation
(Metalclad). The decedent in this wrongful death action was diagnosed with
mesothelioma and sued multiple corporate defendants for exposing him to asbestos at
his workplace. Metalclad moved for summary judgment based on (1) the plaintiffs’
factually devoid discovery responses, (2) a statement by the decedent’s co-worker that
he had “never heard of” Metalclad, and (3) a statement by Metalclad’s person most
knowledgeable that Metalclad had never performed work at the decedent’s workplace.
Metalclad subsequently produced a document showing that it had performed
work at the decedent’s workplace. In response, the plaintiffs amended their discovery
responses, citing to specific facts linking Metalclad to the decedent’s exposure to
asbestos. Nevertheless, the trial court granted summary judgment for Metalclad. The
plaintiffs now argue that the defendant did not meet its burden of proof as the moving
party on summary judgment, and that they also raised triable issues of material fact. We
agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Mark Ganoe (Ganoe) worked as a “utility man” in Department 132 at the
Goodyear Tire & Rubber Company plant in Los Angeles from 1968 until 1979. In
September 2010, he was diagnosed with mesothelioma. Three months later, he filed the
underlying action alleging that the disease was caused by his exposure to asbestos from
1 The plaintiffs are Rose Marie Ganoe, individually and as successor in interest to Mark Ganoe, Daniel Ganoe, Matthew Ganoe and Marie Derks, individually and as legal heirs to Mark Ganoe.
2 when he worked at the Goodyear plant. Ganoe died during the pendency of this action
and the case was converted to a survival and wrongful death action.
On October 12, 2012, Metalclad moved for summary judgment on the grounds
that the plaintiffs had no evidence that Ganoe was exposed to asbestos for which
Metalclad was responsible. Specifically, Metalclad argued that the plaintiffs had served
factually devoid discovery responses and had failed to identify any witnesses that could
show that Ganoe worked with or around any asbestos-containing products supplied,
installed or removed by Metalclad.
In support of the motion, Metalclad submitted the following evidence: (1) the
plaintiffs’ boilerplate response to Metalclad’s special interrogatory seeking “all facts”
regarding Ganoe’s exposure to “asbestos-containing product(s) supplied, installed or
removed by [Metalclad]”; (2) a “case report” in which the plaintiffs identified
Richard Ettress, Ganoe’s former co-worker, as their sole product identification witness
for Metalclad products and services; (3) an excerpt from Ettress’s deposition testimony
in which he said he had “never heard of” Metalclad; and (4) a declaration from
Metalclad’s person most knowledgeable, Don Trueblood, in which he stated that
“Metalclad has no information, documents to suggest, or knowledge of having ever
performed any work or supplied materials to be used at Good[y]ear Tire & Rubber
Company’s plant.”
On December 19, 2012, approximately two years into this litigation, Metalclad
produced a document at Trueblood’s deposition showing that it had performed
insulation work on steam piping at the Goodyear plant in 1974. Trueblood explained
3 that Metalclad had not performed a search of its records in response to the plaintiffs’
discovery requests but had initially provided discovery responses based on a search
performed in “another case involving Goodyear Tire & Rubber that was a couple of
years prior to this case . . . . ” No documents relating to Goodyear were produced in
that case, and this newly produced document was only discovered when a search was
conducted for a third case, one unrelated to Goodyear.
The plaintiffs then served an amended discovery response to Metalclad’s
“all-facts” interrogatory with the following facts: (1) Ganoe worked in Department 132
at the Goodyear plant between 1968 and 1979, (2) in “approximately 1974,” a new
“Banbury machine” and “lay down machine” were added to Department 132 which
required “new steam pipes [] to be installed and insulated as well as tied into the
existing insulated piping and machinery,” (4) the “tie-ins required removal of old
insulation,” (5) Ganoe was present in Department 132 during all phases of this
construction, (6) the “removal of old insulation released in the air asbestos-containing
dust that [] Ganoe breathed,” (7) outside contractors performed the installation and
insulation work, (8) “[a]ccording to [] Ettress, the only work involving insulation
performed in 1974” at the Goodyear plant was “the work associated with the installation
of the new Banbury and lay-down machines and associated piping,” and (9) Metalclad,
an insulation contractor, performed insulation work on steam piping in 1974 at the
Goodyear plant.
On January 9, 2013, the plaintiffs filed their opposition to the motion for
summary judgment and submitted as supporting evidence this amended discovery
4 response, excerpts from the depositions of Ettress, Ganoe and Trueblood, a declaration
by an expert witness, and a declaration by Ettress. In Ganoe’s deposition, he testified
that the “steam lines that went into the Banbury machine[s]” had insulation on them that
“looked like dirty chalk,” that he was present when the insulation on the steam lines was
repaired, that repairing the insulation was “a dusty process,” and that he breathed in that
dust.
In Ettress’s declaration, he stated that he “worked at the Goodyear [] plant in
Los Angeles from 1968 until 1979 . . . I worked in the same department as Mark Ganoe
during these years. [¶] On or about 1974, a new automated Banbury machine was
added in our department and a new lay down machine was added that tied into the
existing Banbury 28 machine. When this construction took place, new steam pipes had
to be installed and insulated as well as tied into the existing insulated piping and
machinery. Outside contractors performed the installation and insulation work . . . I do
not recall any other construction requiring installation of insulation during the period of
time that I worked at the Goodyear plant.” Metalclad asserted evidentiary objections to
the declaration on the grounds that certain statements lacked foundation, contradicted
previous statements in Ettress’s deposition, and were irrelevant. The court overruled
these objections.2
The expert witness, Charles Ay, opined that “prior to 1972 a rigid, whitish,
chalky, pre-formed half round pipe covering was almost certainly asbestos-containing,”
2 Metaclad does not challenge the trial court’s ruling on these objections on appeal.
5 and that “if the material was used for hot pipes in industrial settings, such as a tire
manufacturing plant, then” “[t]he probability in such circumstances would exceed
ninety-nine percent that the material contains asbestos.” Ay further stated that “it is
more likely than not that the insulators who performed the insulation work associated
with the installation of the new Banbury and lay-down machines at the Goodyear [plant]
in 1974 performed the tie-in work to the existing piping and machines . . . [which]
required removal of existing insulation . . . that [] more likely than not . . . was
asbestos-containing.”
In reply, Metalclad argued that it had satisfied its burden on summary judgment
based on (1) Ettress’s testimony that he could not “identify Metalclad as ever having
performed work near Mr. Ganoe,” and (2) the plaintiffs’ original boilerplate responses
to Metalclad’s “all-facts” discovery requests. Metalclad also argued that the plaintiffs
had failed to raise a triable issue of fact through their amended discovery response
because it was speculative to conclude that Metalclad had performed any insulation
work in Department 132 or that such insulation work involved the removal of old
insulation.
The court granted summary judgment. The court found that the defendant had
met its burden of proof, and the plaintiffs had failed to raise a triable issue of fact
because (1) the document belatedly produced by Metalclad did not show that it had
performed work in the vicinity of Ganoe as it did not identify “specific dates when, and
locations within the plant where, the work occurred,” (2) Ettress had testified he had no
information regarding Metalclad, (3) although Ettress stated that he saw “outside
6 contractors” perform insulation work, he did not identify Metalclad as one of those
contractors, and (4) Ay’s conclusions were speculative as he was not a percipient
witness to the event and had no “personal knowledge” as to whether Metalclad worked
in the vicinity of Ganoe. The plaintiffs timely appealed.
CONTENTIONS
The plaintiffs contend that the trial court erred in finding that (1) Metalclad had
shifted the burden of proof, and (2) the plaintiffs had not raised any triable issue of
material fact.
DISCUSSION
1. Applicable Law
We review the trial court’s summary judgment rulings de novo. (Scheiding v.
Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69 (Scheiding).) “ ‘In
performing our de novo review, we must view the evidence in a light favorable to
plaintiff as the losing party [citation], liberally, construing [his] evidentiary submission
while strictly scrutinizing [the defendant’s] own showing, and resolving any evidentiary
doubts or ambiguities in plaintiff’s favor.’ [Citation.]” (Andrews v. Foster Wheeler
LLC (2006) 138 Cal.App.4th 96, 100 (Andrews).)
A defendant moving for summary judgment must make a prima facie showing
that there are no triable issues of fact in order to meet its initial burden of production.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861.) “[A] defendant moving
for summary judgment [must] present evidence, and not simply point out that the
plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at
7 p. 854.) Circumstantial evidence supporting a defendant’s summary judgment motion
“can consist of ‘factually devoid’ discovery responses from which an absence of
evidence can be inferred,” but “the burden should not shift without stringent review of
the direct, circumstantial and inferential evidence.” (Scheiding, supra, 69 Cal.App.4th
at p. 83.) Once the defendant has met that burden, the burden shifts to the plaintiff to
make a prima facie showing that a triable issue of material fact exists. (Aguilar v.
Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) “A prima facie showing is one that
is sufficient to support the position of the party in question. [Citation.] No more is
called for.” (Id. at p. 851.)
2. Metalclad Did Not Meet Its Burden On Summary Judgment
The trial court held that Metalclad had met its burden as the moving party but did
not provide an analysis of the evidence presented by Metalclad. It is unclear whether
the trial court considered the plaintiffs’ amended response to Metalclad’s discovery
when it made this determination. Metalclad contends that even if the trial court did
consider the plaintiffs’ amended response, it would “have no effect on whether
Metalclad met its initial burden” because those responses “provided no new facts.”3
It would be inequitable to allow a moving party to withhold relevant discovery
and then meet its burden on summary judgment without consideration of such newly
disclosed evidence or the opposing party’s response to that evidence. (See Weber v.
John Crane. Inc. (2007) 143 Cal.App.4th 1433, 1442 [“A motion for summary
3 Metalclad also contends that the plaintiffs’ amended discovery response was unverified, however, there is no evidence that Metalclad ever raised an objection on this ground before the trial court. (See Evid. Code, § 353.)
8 judgment is not a mechanism for rewarding limited discovery; it is a mechanism
allowing the early disposition of cases where there is no reason to believe that a party
will be able to prove its case.”]) Here, the trial court appeared to adopt this stance as it
struck evidence submitted in support of the motion that was contradicted by the newly
disclosed document: it sustained the plaintiffs’ objection to Trueblood’s statement
disclaiming knowledge of Metalclad’s work at the Goodyear plant. We will assume,
therefore, that the trial court also properly considered the plaintiffs’ amended discovery
response in determining whether Metalclad had met its burden as the moving party.
Metalclad argues that the plaintiffs’ inadequate response to Metalclad’s “all
facts” discovery request and Ettress’s statement that he had “never heard of” Metalclad
demonstrated that the plaintiffs could not show the decedent had been exposed to
asbestos by Metalclad. In support of this argument, Metalclad cites to Andrews, supra,
138 Cal.App.4th 96 and contends that, as in Andrews, the plaintiffs’ discovery responses
here were “factually devoid.” In Andrews, the defendant had propounded “a series of
special interrogatories which called for all facts regarding [the plaintiff’s] exposure to
asbestos from [the defendant’s] products,” and, in response, the plaintiff provided “little
more than general allegations against” the defendant and “d[id] not state specific facts
showing that [the plaintiff] was actually exposed to asbestos-containing material from
[the defendant’s] products.” (Id. at p. 104.)
The Andrews court held that by failing to provide any information in response to
these discovery requests, the plaintiffs admitted that they had no further information.
(Id. at pp. 106-107.) “If plaintiffs respond to comprehensive interrogatories seeking all
9 known facts with boilerplate answers that restate their allegations, or simply provide
laundry lists of people and/or documents, the burden of production will almost certainly
be shifted to them once defendants move for summary judgment and properly present
plaintiffs’ factually devoid discovery responses. [¶] In short, [the defendant’s]
discovery was sufficiently comprehensive, and plaintiffs’ responses so devoid of facts,
as to lead to the inference that plaintiffs could not prove causation upon a stringent
review of the direct, circumstantial and inferential evidence contained in their
interrogatory answers and deposition testimony.” (Id. at p. 107.)
Here, unlike in Andrews, the plaintiffs’ amended response to the defendant’s
“all-facts” interrogatories did not consist only of “boilerplate answers,” “general
allegations” and “laundry lists of people and/or documents.” By contrast, the response
contained “specific facts” showing that Metalclad had exposed Ganoe to asbestos in
1974 by removing asbestos-containing insulation in Department 132 of the Goodyear
plant while he was present. Therefore, this response did not lead to an inference that the
plaintiffs could not prove causation.
With respect to Ettress’s statement that he had “never heard of” Metalclad,
Metalclad argues this case in analogous to McGonnell v. Kaiser Gypsum Co. (2002)
98 Cal.App.4th 1098 (McGonnell), where the plaintiff testified he had “never heard of”
the defendant Kaiser Gypsum and the court found this was sufficient to negate
causation. In McGonnell, the plaintiff’s job consisted of “maintenance and repair of the
plumbing” in a particular building and, after he died of asbestos-related lung cancer,
a wrongful death action was filed alleging that he had been exposed to
10 asbestos-containing products when he cut through insulation in the walls. (Id. at
p. 1101.) The trial court found that the plaintiff, at his deposition, “was able to identify
the kinds of materials he worked with, and the brand names of some of the products he
had used. . . . His failure to place any [of the defendants’] products at his place of
employment shifted the burden to plaintiffs to produce some circumstantial evidence to
establish exposure to [the defendant’s] products.” (Id. at p. 1104 [emphasis added].)
Here, unlike in McGonnell, Metalclad only submitted a two-page excerpt from
Ettress’s deposition wherein he stated that he had “never heard of” Metalclad.
Metalclad did not provide any evidence that Ettress was able to identify other
contractors who had performed insulation work at the Goodyear plant. This case is
more analogous to Weber v. John Crane, Inc., supra, 143 Cal.App.4th 1433, where the
court found that the defendant had not “made out a prima face case that plaintiffs would
be unable to establish that [he] had been exposed to a [defendant] product, by
submitting evidence that [the plaintiff] had no recall of the [defendant’s] name [] and
could not associate any product with that name.” (Id. at p. 1439.) “That Weber was
unable to recall whether he worked around a [defendant] product over 40 years ago
suggests only that plaintiffs will not be able to prove their case with Weber’s deposition
testimony. It cannot be inferred that Weber would have been unable to recognize
a [defendant] product had he been shown one, or had he been shown its packaging or its
logo. . . . In effect, [the defendant] attempts to shift the burden of producing evidence to
plaintiffs by limiting its discovery to a single question that Weber could not be expected
to answer affirmatively: his ability to recall products to which he had been exposed
11 over 40 years ago. A negative response to that question simply does not create an
inference either of nonexposure or of the inability to prove exposure by some other
means.” (Ibid.)
Here, Ettress was also questioned about events that occurred approximately
40 years prior, but, as in Weber, Metalclad did not show Ettress its logo which
Metalclad workers may have displayed when they performed services for clients and
ask Ettress if he recognized it, but merely asked him if he recognized Metalclad’s name.
The negative response to that question by itself was insufficient to create an inference of
nonexposure or that the plaintiffs could not prove exposure by other means. On these
grounds, the trial court erred in concluding that Metalclad had shifted the burden of
proof.
3. The Plaintiffs Raised Triable Issues of Material Fact
Even if Metalclad had met its burden as the moving party, summary judgment
should have been denied as the plaintiffs raised triable issues of material fact.
Metalclad contends that the plaintiffs’ opposition to the motion for summary judgment
“merely show[ed] a speculative possibility that Metalclad was the outside contractor
that performed the insulation work in Department 132 in 1974.” In support of this
argument, Metalclad argues that, as in McGonnell, the plaintiffs’ evidence merely
created “ ‘a dwindling stream of probabilities that narrow into conjecture.’ ”
(McGonnell, supra, 98 Cal.App.4th at p. 1105.)
In McGonnell, as noted above, the plaintiffs alleged that the decedent had been
exposed to asbestos when he cut into walls and disturbed building materials that
12 contained asbestos. (Id. at p. 1101.) With respect to the defendants’ products, the
plaintiffs presented evidence that the defendants’ invoices showed they had sold
wallboard and joint compound to a contractor in 1972 and those materials might have
been for a project at the building where decedent worked. (Ibid.) However, other
evidence showed that the defendants did not use asbestos in its wall board, and that the
joint compound only “could have” contained asbestos. (Ibid.) The trial court found that
“[a]lthough the joint compound was delivered to the contractor a few years before [the
decedent] began his employment at [the workplace], it is at least within the realm of
possibility that [the decedent] encountered a wall with [the defendants’] joint compound
during his 24 years of employment at [the workplace]. [¶] Does this possibility create
a triable issue of fact? We think not. It is not enough to produce just some evidence.
The evidence must be of sufficient quality to allow the trier of fact to find the
underlying fact in favor of the party opposing the motion for summary judgment.
[Citation.] All that exists in this case is speculation that at some time [the decedent]
might have cut into a wall that might have contained [the defendants’] joint compound
that might have contained asbestos. The evidence creates only ‘a dwindling stream of
probabilities that narrow into conjecture.’ [Citation.]” (Id., at p. 1105.)
The case here is distinguishable from McGonnell and presents more than mere
speculation of causation. In McGonnell, the defendant’s product might have contained
asbestos, might have been used somewhere in the building where decedent worked, and
the decedent might have cut into that product while generally performing plumbing
work sometime during his 24 years of employment there. By contrast, here, there was
13 evidence Metalclad performed insulation work on steam piping at the Goodyear plant in
1974, that the only construction work requiring the installation of insulation at the
Goodyear plant in 1974 occurred in Department 132 when a new Banbury machine and
“lay-down machine” were installed, that the installation of those machines also required
the removal of old insulation, and that Ganoe worked in that department, was present
during the repair of the steam lines’ insulation and breathed in the resulting dust.
Furthermore, according to the plaintiffs’ expert witness, it was more likely than not that
the old insulation removed during this process contained asbestos.4 Viewed in its best
light, this evidence supported a reasonable inference that the plaintiffs could show
causation. Therefore, the trial court erred in finding that the plaintiffs had failed to raise
a triable issue of fact.
4 We note that the trial court concluded that Charles Ay’s conclusions were “speculative” because he “was not present at the relevant Goodyear plant during the alleged exposure period” and had no “personal knowledge” as to whether Metalclad worked in the vicinity of Ganoe. Whether Ay had personal knowledge of the facts and opinions in his declaration speaks to the foundation for this evidence. However, he was an expert witness and his statements were not based on his having personally witnessed Ganoe’s exposure to asbestos 40 years prior, but on his extensive work experience. Ay provided evidence that he had been qualified as an expert witness in over 100 asbestos-related injury cases over the past 16 years, he had worked as a “pipe coverer, insulator and asbestos worker” for 25 years, he had been certified and trained about safety issues related to asbestos, and, after reviewing the testimony of Ganoe and Ettress as well as Metaclad’s record of performing work at the Goodyear plant, he had concluded that the installation of new Banbury and lay-down machines at the Goodyear plant in 1974 required removal of insulation that more likely than not contained asbestos. Ay’s experience provided an adequate foundation for this opinion. Nor was it speculative for Ay to conclude that installation of the new machines involved the removal of insulation, or that, in 1974, old insulation removed from “chalky” “hot pipes used in industrial settings” more likely than not contained asbestos.
14 DISPOSITION
The judgment is reversed. The plaintiffs are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
ALDRICH, J.
15 Filed 7/21/14 CERTIFIED FOR PUBLICATION
Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. BC449400) v.
METALCLAD INSULATION ORDER CORPORATION, (1) MODIFYING OPINION (2) CERTIFYING OPINION Defendant and Respondent. FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
The opinion filed in this matter on July 8, 2014 is hereby modified as follows:
On page 2, paragraph 2, line 5, delete the following sentence: The plaintiffs now
argue that the defendant did not meet its burden of proof as the moving party on summary
judgment, and that they also raised triable issues of material fact. Replace with the following sentence: The plaintiffs now argue that the defendant
did not meet its burden of proof as the moving party on summary judgment, and that
plaintiffs have raised triable issues of material fact.
When the opinion in this matter was originally filed, it was not certified for
publication. For good cause now appearing, it is hereby ordered that the opinion in this
matter, filed on July 8, 2014 is certified for publication.