Collin v. Calportland Co.

• Decision Date: 01 July 2014
• Docket Number: C063875,C065180
• Citation: 176 Cal.Rptr.3d 279,228 Cal.App.4th 582
• Court: California Court of Appeals Court of Appeals
• Parties: Verna Lee COLLIN, Plaintiff and Appellant, v. CALPORTLAND COMPANY et al., Defendants and Respondents. Verna Lee Collin, Plaintiff and Appellant, v. J–M Manufacturing Company, Inc., Defendant and Respondent.

228 Cal.App.4th 582

176 Cal.Rptr.3d 279

Verna Lee COLLIN, Plaintiff and Appellant,

v.CALPORTLAND COMPANY et al., Defendants and Respondents.

Verna Lee Collin, Plaintiff and Appellant,

v.J–M Manufacturing Company, Inc., Defendant and Respondent.

C063875

C065180

Court of Appeal,

Third District, California.

Filed July 1, 2014

See 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1490 et seq.

APPEAL from a summary judgment of the Superior Court of Sacramento, Shelleyanne W. L. Chang, Judge. Affirmed and Reversed. (Super. Ct. No. 34200900045133CUASGDS)

Waters, Kraus & Paul, Paul B. Cook and Michael B. Gurien, El Segundo, for Plaintiff and Appellant.

Berkes Crane Robinson & Seal, Los Angeles, Robert H. Berkes, Steven M. Crane and Barbara S. Hodous for Defendant and Respondent CalPortland Company.

Horvitz & Levy, Lisa Perrochet, Dean A. Bochner, Encino, DeHay & Elliston and Jennifer Judin, Oakland, for Defendant and Respondent Kaiser Gypsum Company, Inc.

Walsworth Franklin Bevins & McCall, Helen M. Luetto, Orange, and Ingrid K. Campagne, San Francisco, for Defendants and Respondents J–M Manufacturing Company, Inc. and Formosa Plastics Corporation USA.

MAURO , J.

After Loren A. Collin was diagnosed with mesothelioma, he and his wife Verna Lee Collin sued 22 entities for negligence, strict liability, false representation, intentional tort/failure to warn, alter ego, and loss of consortium, alleging Loren was exposed to asbestos from the defendants' products or activities when he worked in various construction trades.¹

Plaintiff now appeals from the grant of summary judgment in favor of four defendants: CalPortland Company (CalPortland), Kaiser Gypsum Company, Inc. (Kaiser Gypsum), J–M Manufacturing Company, Inc. (J–MM), and Formosa Plastics Corporation USA (Formosa), named as an alter ego of J–MM. Plaintiff contends those defendants did not show that plaintiff does not possess and cannot reasonably obtain evidence of exposure to an asbestos-containing product for which defendants are responsible; but even if the burden shifted to plaintiff, the evidence is sufficient to support an inference of exposure. Plaintiff also claims J–MM and Formosa did not establish that Loren was a sophisticated user who knew or should have known of the potential risks and dangers of using J–MM's asbestos cement pipe.

Our discussion is organized by defendant: part I addresses CalPortland, part II involves Kaiser Gypsum, and part III pertains to J–MM and its alleged alter ego Formosa. We conclude summary judgment was properly granted in favor of CalPortland and Kaiser Gypsum, because they met their initial burdens on summary judgment and the evidence and reasonable inferences would preclude a reasonable trier of fact from finding (without speculating) that Loren was exposed to one of their asbestos-containing products.

Regarding J–MM and Formosa, however, summary judgment was not proper. The evidence, viewed in the light most favorable to plaintiff, demonstrates a triable issue of fact as to whether Loren was exposed to asbestos from a J–MM product. In addition, J–MM and Formosa have not established that they are entitled to summary adjudication as a matter of law based on the sophisticated user defense.

We will affirm the judgments in favor of CalPortland and Kaiser Gypsum and reverse the judgments in favor of J–MM and Formosa.

BACKGROUND

Plaintiff brought a personal injury action against 22 defendants, alleging that Loren developed peritoneal mesothelioma because of occupational exposure to defendants' products or activities from 1955 through 1957 and 1959 through the 1990's. CalPortland, Kaiser Gypsum, J–MM and Formosa are among the named defendants in plaintiff's lawsuit. The complaint alleges counts for negligence, strict liability, false representation, intentional tort/failure to warn, alter ego and loss of consortium.

CalPortland and Kaiser Gypsum separately moved for summary judgment, while J–MM and Formosa separately moved for summary judgment or summary adjudication. Each defendant said plaintiff cannot establish that Loren was exposed to an asbestos-containing product for which the defendant is responsible.

CalPortland argued that despite several opportunities to state facts supporting his claims, Loren did not say he was exposed to “Colton gun plastic cement,” which was the only asbestos-containing cement CalPortland manufactured and sold. Plaintiff responded that a trier of fact could infer from the similarities between the plastic cement product Loren said he encountered on jobsites, and Colton gun plastic cement, that Loren was exposed to the CalPortland product.

According to Kaiser Gypsum, it stopped making or selling asbestos products after 1976, and Loren cannot show he encountered a Kaiser Gypsum asbestos product because he cannot say when he encountered their product. Plaintiff countered that although Loren cannot pinpoint exactly when he was exposed to a joint compound manufactured by Kaiser Gypsum, he said he was exposed to dust from Kaiser Gypsum joint compound during his career in construction from the mid–1950's to 1995, and Kaiser Gypsum manufactured a joint compound containing asbestos from the mid–1950's through 1975. According to plaintiff, a reasonable inference of exposure can be drawn from the fact that during Loren's career in construction, Kaiser Gypsum manufactured a joint compound with asbestos for 20 years, whereas it manufactured an asbestos-free joint compound for only two years.

J–MM's motion for summary judgment or summary adjudication asserted that plaintiff cannot prove J–MM caused the plaintiff's injuries because J–MM was not liable for asbestos cement pipes sold prior to its formation in 1983, and plaintiff has no evidence of any exposure to asbestos cement pipe after 1979. J–MM also argued it had no duty to warn Loren of the potential risks and dangers of working with asbestos cement pipe because Loren was a sophisticated user of the product.

Plaintiff named Formosa as an alter ego of J–MM. Formosa's motion for summary judgment or summary adjudication asserted the same arguments advanced by J–MM.

In opposition to the motions by J–MM and Formosa, plaintiff pointed to Loren's discovery responses which stated that he was exposed to asbestos from Transite asbestos cement pipe through the early 1980's. Plaintiff also pointed to evidence that Transite was a trade name for J–MM's asbestos cement pipe. Regarding the sophisticated user defense, plaintiff said the defense did not apply to their design defect claims and there was no evidence Loren was a sophisticated user of asbestos.

The trial court ruled that each defendant satisfied its initial burden on summary judgment by showing (via Loren's factually insufficient discovery responses) that the plaintiff does not possess and cannot obtain evidence establishing an element of the causes of action, i.e., exposure to the defendant's asbestos-containing product. The trial court further determined that the plaintiff did not satisfy the burden of showing the existence of a triable factual issue with regard to exposure. Accordingly, the trial court granted summary judgment in favor of CalPortland, Kaiser Gypsum, J–MM and Formosa.

STANDARD OF REVIEW

Summary judgment and summary adjudication provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Code Civ. Proc., § 437c, subd. (f)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar ).) A defendant moving for summary judgment or summary adjudication may demonstrate that the plaintiff's cause of action has no merit by showing 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. (Code Civ. Proc., § 437c, subds. (f)(2), (p)(2); Aguilar, supra, 25 Cal.4th at p. 849, 107 Cal.Rptr.2d 841, 24 P.3d 493.) This showing must be supported by evidence, such as affidavits, declarations, admissions, interrogatory answers, depositions, and matters of which judicial notice may be taken. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850, 855, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

A defendant moving for summary judgment or summary adjudication need not conclusively negate an element of the plaintiff's cause of action. (Code Civ. Proc., § 437c, subd. (f)(2); Aguilar, supra, 25 Cal.4th at p. 853, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Instead, the defendant may show through factually devoid discovery responses that the plaintiff does not possess and cannot reasonably obtain needed evidence. ( Aguilar, supra, 25 Cal.4th at pp. 854–855, 107 Cal.Rptr.2d 841, 24 P.3d 493; Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101, 41 Cal.Rptr.3d 229.)

After the defendant meets its threshold burden, the burden shifts to the plaintiff to present evidence showing that a triable issue of one or more material facts exists as to that cause of action or affirmative defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The plaintiff may not simply rely on the allegations of its pleadings but, instead, must set forth the specific facts showing the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists if, and only if, the evidence reasonably permits the trier of fact to find the contested fact in favor of the plaintiff in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

In ruling on the motion, the trial court views the evidence and inferences therefrom in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843, 107 Cal.Rptr.2d 841, 24 P.3d 493; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768,...