Ashdown v. Ameron International Corp.

• Decision Date: 17 August 2000
• Docket Number: No. A084561.,A084561.
• Citation: 83 Cal.App.4th 868,100 Cal.Rptr.2d 20
• Court: California Court of Appeals Court of Appeals
• Parties: Ellen ASHDOWN, Individually and as Executor, etc., et al., Plaintiffs and Appellants, v. AMERON INTERNATIONAL CORPORATION, Defendant and Respondent.

100 Cal.Rptr.2d 20

83 Cal.App.4th 868

Ellen ASHDOWN, Individually and as Executor, etc., et al., Plaintiffs and Appellants, v. AMERON INTERNATIONAL CORPORATION, Defendant and Respondent.

No. A084561.

Court of Appeal, First District, Division 3.

August 17, 2000.

Certified for Partial Publication.^*

Law Offices of Christopher E. Grell, Christopher E. Grell and Richard F. Rescho, Oakland, for Plaintiffs and Appellants.

Law Offices of Thomas & Price, Michael Thomas, Paul Ayers; Jackson & Wallace, John R. Wallace for Defendant and Respondent.

McGUINESS, P.J.

Appellants' decedent, Gary Smith, expired in April 1994, shortly after he was diagnosed with a terminal asbestos-related disease. This action was brought against respondent Ameron International Corporation (Ameron) by his estate, by and through the decedent's surviving spouse and executor Ellen Ashdown (Ashdown) and his children Kristy Smith and Ian Smith, alleging wrongful death and survival rights of action for negligence, strict liability and loss of consortium caused by his exposure to asbestos during his employment as a pipe inspector for respondent's predecessor company. The trial court granted summary judgment in favor of Ameron, finding that appellants' action was barred by the Workers' Compensation Act, none of the exceptions to the exclusivity of the workers' compensation remedy applied to the facts of this case, and Ameron was entitled to judgment as a matter of law. We affirm.

Factual and Procedural Background

Gary Smith was employed as a pipe inspector by respondent Ameron's predecessors-in-interest, Amercoat, Inc. (Amercoat) and American Pipe and Construction Co. (American Pipe) in Brea, California, from 1964 through 1966.¹ Appellant's evidence indicates that during the period of his employment with Amercoat and/or American Pipe as an inspector and tester of pipe, Smith was exposed to asbestos used in respondent's manufacture of asbestos-containing pipes and other related products. Smith became disabled on January 18, 1994. On February 21, 1994, he was diagnosed as having mesothelioma, an asbestos-related-disease. Smith died on April 21,1994.

Appellants filed their initial complaint on May 31, 1994. Although this complaint identified one of Ameron's predecessor companies, American Pipe, as a location where the decedent "used, handled or was otherwise exposed to asbestos and asbestos-containing products" while employed as a "Pipe Inspector" between 1964 and 1966, the complaint did not name American Pipe, Amercoat or Ameron as defendants. On April 9, 1997, appellants filed a motion for leave to file a first amended complaint naming Ameron as a defendant, alleging they had failed to name Ameron as a defendant initially because they had only "recently learned of facts indicating liability of Ameron ... for the exposure of [decedent Smith] to asbestos materials resulting in his illness and death." Appellants were granted leave to amend.

In its answer to the first amended complaint, respondent asserted as affirmative defenses the exclusivity of the remedy of the Workers' Compensation Act, and appellants' failure to commence their action against respondent within the applicable one-year limitations period. Respondent subsequently moved for summary judgment on these grounds, and noticed a hearing to be held on Friday, July 3, 1998.

On June 15, 1998, appellants' counsel notified respondent's attorney that the motion for summary judgment could not be heard on July 3, 1998, because it was a court holiday in observance of Independence Day. On June 17, 1998, appellants filed an ex parte application requesting an order shortening time setting the date for hearing the summary judgment motion on Thursday, July 2, 1998, or alternatively to allow the motion to be heard closer to the trial date. The trial court granted the motion, and reset the hearing for July 14, 1998. At the conclusion of the hearing, the trial court granted respondent's motion for summary judgment, finding "that there is no triable issue as to any material fact" as to the exclusivity of the workers' compensation remedy under the facts of the case, and appellants had failed to demonstrate that either the dual capacity or the fraudulent concealment exception applied. The trial court entered judgment in favor of respondent, and this appeal timely followed.

EXCLUSIVENESS OF WORKERS' COMPENSATION REMEDY

The principle issue on this appeal is whether the trial court erred in granting summary judgment upon respondent's motion, based on its finding that under the undisputed facts of this case, appellants' claim does not come within any exception to the exclusivity of the workers' compensation remedy. Appellants argue that their cause of action accrued, not as of the date of the decedent's death or his asbestosis diagnosis, but at the time of his original exposure to asbestos during his employment with respondent's predecessor corporation between 1964 and 1966. On this basis, they urge that the dual capacity exception to workers' compensation exclusivity in effect prior to the 1982 amendment of Labor Code section 3602² was applicable to their claim. In the alternative, they argue that even if the decedent's case accrued after the effective date of the amended version of the pertinent statute, there are still triable issues of fact as to whether the fraudulent concealment exception to workers' compensation exclusivity applies to this action. We conclude on the basis of the undisputed evidence that the trial court's grant of summary judgment was correct, and therefore affirm.

Standard of Review

Any party may move for summary judgment in any action or proceeding by contending that the action has no merit, or there is no defense to the action. (Code Civ. Proc, § 437c, subd. (a).) Code of Civil Procedure section 437c, subdivision (c), requires a trial court to grant summary judgment if all the papers and affidavits submitted, together with "all inferences reasonably deducible from the evidence" and uncontradicted by other inferences or evidence, show that "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ibid.; 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 217, p. 629.) Where the defendant is the moving party, he or she may meet the burden of showing that a cause of action has no merit by proving either that (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action. Once that burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of one or more material facts with respect to that cause of action or defense. (Code Civ. Proc, § 437c, subd. (o)(2); Songster v. Paetkau (1998) 68 Cal.App.4th 151, 161-163, 80 Cal.Rptr.2d 66; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App.3d 1505, 1513-1515, 285 Cal.Rptr. 385.)

"On appeal, we review the trial court's decision to grant or deny the summary judgment motion de novo, on the basis of an examination of the evidence before the trial court and our independent determination of its effect as a matter of law." (Songster v. Paetkau, supra, 68 Cal. App.4th at p. 163, 80 Cal.Rptr.2d 66; see also Villa v. McFerren (1995) 35 Cal. App.4th 733, 741, 41 Cal.Rptr.2d 719; Union Bank v. Superior Court (1995) 31 Cal. App.4th 573 579, 37 Cal.Rptr.2d 653; Jambazian v. Borden (1994) 25 Cal. App.4th 836, 843-844, 30 Cal.Rptr.2d 768; 6 Witkin, Cal. Procedure, supra, Proceedings Without Trial, § 235, pp. 646-647.) In reviewing a grant of summary judgment, "[w]e may consider only those facts which were before the trial court, and disregard any new factual allegations made for the first time on appeal. Thus, unless they were factually presented, fully developed and argued to the trial court, potential theories which could theoretically create `triable issues of material fact' may not be raised or considered on appeal." (Songster v. Paetkau, supra, 68 Cal. App.4th at p. 163, 80 Cal.Rptr.2d 66; see also Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962-963, 9 Cal.Rptr.2d 306.)

Dual Capacity Exception Not applicable

Appellants first argue that the trial court erred in concluding that their complaint was barred by a 1982 amendment to section 3602 limiting the so-called dual capacity exception upon which they rely to circumvent the exclusivity of the workers' compensation remedy. They contend that because the decedent was allegedly exposed to asbestos during his employment with respondent's predecessor between 1964 and 1966, the 1982 amendment is inapplicable to their case. Appellants are wrong.

Where the "conditions of compensation concur," the California workers' compensation law provides the exclusive remedy in this State for the recovery of compensation, from either the employer or any other employee of the employer acting within the scope of employment, for the injury or death of an employee "arising out of and in the course of the employment." (§§ 3600, 3601, 3602; Privette v. Superior Court (1993) 5 Cal.4th 689, 697, 21 Cal.Rptr.2d 72, 854 P.2d 721; Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 468; 165 Cal.Rptr. 858, 612 P.2d 948, 2 Witkin, Summary of Cal. Law (9th ed. 1987) Workers' Compensation, §§ 25-28, 184, pp. 578-582, 748-749.)³ In an effort to avoid this statutory bar to their action, appellants have relied on a court-made exception to the general rule of exclusivity known as the dual capacity doctrine, first enunciated by the Supreme Court in Duprey v. Shane (1952) 39 Cal.2d 781, 249 P.2d 8.

Under the common law dual capacity doctrine, when an employee is injured in the course of a relationship with his or her employer that is conceptually distinct from that of employer and employee, or while the employer is acting in a legal capacity toward the employee distinct from that of employer, the employee may bring a civil action...