Biles v. Exxon Mobil Corp.

• Decision Date: 14 December 2004
• Docket Number: No. A105783.,A105783.
• Citation: 124 Cal.App.4th 1315,22 Cal.Rptr.3d 282
• Court: California Court of Appeals Court of Appeals
• Parties: Ronald BILES, Plaintiff and Appellant, v. EXXON MOBIL CORPORATION, Defendant and Respondent.

22 Cal.Rptr.3d 282

124 Cal.App.4th 1315

Ronald BILES, Plaintiff and Appellant, v. EXXON MOBIL CORPORATION, Defendant and Respondent.

No. A105783.

Court of Appeal, First District, Division 2.

December 14, 2004.

Brayton Purcell and Alan R. Brayton, Gilbert L. Purcell, Lloyd F. LeRoy and David Polin, Novato, for Appellant.

Armstrong & Associates and William H. Armstrong, Oakland, for Respondent.

RUVOLO, J.

I. INTRODUCTION

In deciding this appeal we deconstruct a civil discovery "urban legend"¹ — that a responding party has an affirmative duty to supplement responses to interrogatories if and when new information comes into that party's possession particularly if the party reserved the right to amend or supplement the earlier responses. Here a defendant sued in an asbestos personal injury case on a premises liability theory moved for summary judgment, contending that the plaintiff could not show he had been exposed to asbestos on the defendant's premises in a manner for which the defendant could be held liable. The plaintiff countered with a declaration from one of his former coworkers, stating that while they were both working for a contractor on the defendant's premises, the defendant's employees used air hoses to blow asbestos dust in their direction.

The defendant objected to the declaration on the ground that the coworker had not been identified in answer to an earlier interrogatory seeking the names of persons who had knowledge of plaintiff's exposure to asbestos on the defendant's premises, and that plaintiff had failed to supplement his answer to include the name. The trial judge excluded the declaration, and granted summary judgment for the defendant.

Plaintiff appeals, arguing that his failure to identify the witness in his interrogatory answer, and to supplement that answer before submitting the witness's declaration, was not grounds for excluding the declaration from evidence in connection with the summary judgment motion. We agree, and, because the declaration raises a triable issue of material fact as to the defendant's liability, we reverse the summary judgment.

II. FACTS AND PROCEDURAL BACKGROUND

Plaintiff Ronald Biles (Biles) was diagnosed with asbestosis and asbestos-related pleural disease in October 2001.² From October 1968 through March 1969, Biles worked as an insulator for a subcontractor engaged to assist in the construction of an oil refinery (the Humble refinery) for Humble Oil (Humble), the predecessor in interest of defendant Exxon Mobil Corporation (Exxon). Based on this experience,³ when Biles filed a personal injury lawsuit in April 2002 seeking damages for his asbestos-related illness, he included Exxon as a defendant on a premises liability theory.

During discovery, Exxon served a set of special interrogatories on Biles, which he answered in May 2003. One of Exxon's interrogatories asked Biles to identify "each person who has knowledge specifically of the work at [the Humble refinery] that you contend created your exposure to asbestos fibers." Biles's response was that "After a reasonable and good faith inquiry, plaintiff currently has no further information responsive to this Interrogatory. Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation. Plaintiff's investigation and discovery are continuing."

At his deposition in April 2003, Biles testified that during his work at the Humble refinery, he did not recall seeing or having direct personal contact with anyone employed by the refinery. On October 6, 2003, Exxon filed a summary judgment motion, relying in part on this deposition testimony to support the contention that "there was no dangerous condition [at the Humble Refinery] ... that was controlled by Exxon[]...." Exxon's separate statement of undisputed facts did not refer to Biles's interrogatory answers, nor were they included in the papers submitted in support of the summary judgment motion.

On October 29, 2003, about three weeks after Exxon filed its summary judgment motion in the present case, the deposition of a man named Roger Bellamy was taken in a different asbestos personal injury case (the Kiss action) in which the plaintiffs were John and Joan Kiss, and Exxon was one of the defendants. The plaintiffs in the Kiss action, and Bellamy himself as a deposition witness, were represented by the same law firm that represents Biles in this action. Exxon was also represented by the same law firm in both actions. During the deposition, Bellamy testified that he had worked with John Kiss and Biles at the Humble Refinery between October 1968 and March 1969.

On December 8, 2003, Biles filed his opposition to Exxon's summary judgment motion. Biles's opposition papers included excerpts from Bellamy's deposition in the Kiss action, as well as a declaration from Bellamy (the Bellamy declaration). The Bellamy declaration stated that during the time Bellamy and Biles worked together at the Humble Refinery, Bellamy saw personnel employed by Exxon, approximately 60 feet from himself and Biles, who were "utilizing compressed air hoses to blow the asbestos dust throughout the worksite, including throughout the area where [Biles] and I were then performing our work." The Bellamy declaration also averred that Bellamy "was able to identify the [Exxon] personnel based on their hard hats which said `Exxon,' and based on conversations with other members of my crew."

In Biles's response to Exxon's separate statement of undisputed facts, he relied on the Bellamy declaration as evidence that Exxon "actively and negligently exposed him to asbestos while [Exxon's] operators and laborers were cleaning up equipment to be operated by [Exxon] personnel, utilizing brooms and air hoses which dispersed asbestos-containing dust into [Biles's] work environment." Biles submitted no evidence supporting this factual contention other than the Bellamy declaration.

In its reply papers in support of the summary judgment motion, filed on December 16, 2003, Exxon objected to the admission of the Bellamy declaration on the ground that Bellamy had not been identified in Biles's response to Exxon's interrogatories. Exxon also noted that the same law firm that represents Biles in the present case had also represented Bellamy in his own asbestos suit, and had defended him during a deposition taken in that case in May 1996, at which Bellamy testified about his work at the Humble Refinery during 1968 and 1969. The excerpts from Bellamy's 1996 deposition submitted by Exxon did not, however, include any mention of Biles, or any questioning regarding whether Exxon's employees took any action that resulted in Bellamy's being exposed to asbestos dust.

The hearing on the summary judgment motion took place on December 22, 2003. Addressing Biles's counsel, the trial judge opined that "When you found out [o]n October 19th that Bellamy had information about Biles, it was incumbent upon you to pass that information on because nobody knew about it, you were the only ones who did. I don't know whether these people, Exxon['s counsel], were involved in the Kiss case or not,⁴ but it is still incumbent upon you to supplement that interrogatory because you said you would everytime [sic] you got information. You didn't do it and now in a summary judgment motion suddenly on December 7th, 2003, we have Roger Bellamy blossoming in this case and nobody ever heard of him before." He reiterated that "you said you were going to supplement, you didn't do it, you sprung Bellamy on in connection with a summary judgment motion. You can't do that."

After hearing argument from counsel, the judge once again stated that, "Look, when you answer an interrogatory and you don't give any names at all but say you are going to supplement it, the obligation is on you to supplement it as soon as you find out. [¶] Regardless of the 1996 case, it's real clear that at least as of October 29th, 2003 in Mr. Kiss's case, you found out that Mr. Bellamy knew something relevant to Mr. Biles' case. It was incumbent upon you to let Exxon know ... that you found something there that mattered. That didn't happen. Mr. Bellamy didn't show up until the summary judgment motion was filed and in the opposition [you] submitted a declaration on December 7th saying for the first time ... [that Bellamy] worked with Mr. Biles at the Exxon refinery. That is too late, can't do it."

The trial judge thereupon signed Exxon's proposed order granting the motion for summary judgment. Judgment was entered accordingly on February 5, 2004, and this timely appeal ensued.

III. DISCUSSION

On appeal, Biles argues that the trial court erred in excluding the Bellamy declaration from evidence, and that if the Bellamy declaration is considered, his opposition to the summary judgment motion raised a triable issue of fact. We review the trial court's ruling excluding the Bellamy declaration for abuse of discretion (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 388-389, 97 Cal. Rptr.2d 12), and the trial court's grant of summary judgment de novo. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143.)

A. The Exclusion of the Bellamy Declaration Was Not Based on a Finding That Appellant's Earlier Interrogatory Answers Were Willfully False

The trial judge cited no authority for his ruling that the Bellamy declaration was inadmissible due to Biles's failure to identify Bellamy in his interrogatory responses. However, it appears he was relying on Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 105 Cal.Rptr. 276 (Thoren), which Exxon cited as the primary support for its argument in the trial court, and on which Exxon continues to rely on appeal. Accordingly, we take Thoren as the starting point for our review of the judge's evidentiary ruling.

In Thoren, an injured construction worker sued a subcontractor of his employer, alleging that the subcontractor's...