Deloof v. Ace Hardware Corp.
| Decision Date | 02 March 2017 |
| Docket Number | B265886 |
| Parties | JOHN DELOOF et al., Plaintiffs and Appellants, v. ACE HARDWARE CORP., et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County, Emilie H. Elias, Judge. Affirmed.
The Arkin Law Firm, Sharon J. Arkin; Farrise Firm, and Simona A. Farrise, for Plaintiffs and appellants.
Lewis Brisbois Bisgaard & Smith, Jeffrey A. Miller, Ernest Slome, Brittany H. Bartold, Helen M. Luetto, and Arezoo Jamshidi for Defendant and Respondent W.W. Henry Company.
On March 20, 2013, Janice DeLoof (decedent) died of mesothelioma, allegedly caused by her exposure to asbestos. Her husband and adult son (appellants) filed a wrongful death and survivorship complaint for damages against numerous defendants, including respondent W.W. Henry Company, an alleged manufacturer of asbestos-containing products. Respondent filed a motion for summary judgment, arguing that appellants had not and could not reasonably produce evidence showing exposure to an asbestos-containing product that it manufactured. The superior court granted the motion, after determining that respondent had met its initial burden of proof on summary judgment and that appellants had failed to show a triable issue with respect to exposure. Appellants contend the trial court erred in granting summary judgment, as respondent failed to meet its initial burden of proof. Alternatively, they contend they showed the existence of a triable issue of material fact. For the reasons set forth below, we affirm.
On September 30, 2013, decedent's husband, John DeLoof, individually and as successor-in-interest, and her adult son, Phillip Johnson, individually and as legal heir, filed a wrongful death and survivorship complaint for damages. The complaint alleged that decedent had died as a result of her exposure to asbestos fibers (1) during her workfor certain defendants on their premises (premises defendants), and (2) from using, handling, disturbing or being environmentally exposed to asbestos-containing products manufactured, sold, supplied or distributed by other defendants (product defendants). The Henry Company and respondent were named as product defendants.1 The complaint listed the locations and dates where decedent was allegedly exposed to asbestos attributable to the wrongful conduct of the premises defendants. However, no asbestos-containing products attributable to the product defendants were listed. The complaint sought general damages in an amount in excess of $50,000, special damages, damages for fraud and conspiracy in an amount in excess of $50,000, punitive damages, prejudgment and postjudgment interest, and costs.
On February 11, 2014, respondent filed an answer, generally denying the allegations in the complaint and raising numerous affirmative defenses.
On March 13, 2014, appellants filed a case report pursuant to Los Angeles Superior Court (LASC) AsbestosGeneral Orders, General Order No. 29 (Third Amended). In the case report, appellants stated that decedent was "occupationally and non-occupationally exposed to asbestos from various asbestos-containing products, materials and equipment during decedent's work as an art teacher and sculpt[or] through dates beginning on or about the early 1970s through no later than the early 1980s." The case report further stated that decedent was exposed to asbestos at her Fullerton residence (1) as a result of her work as a sculptor from the early 1970s through the early 1980s, and (2) from a home remodeling in approximately 1980. It identified the Henry Company and respondent as manufacturers of asbestos-containing products, including, but not limited to, plastic roof cement used at the Fullerton residence in approximately 1980. However, no specific product was identified. John DeLoof was identified as the only witness with information about decedent's exposure to asbestos-containing products. Finally, with respect to product identification for respondent, the case report referenced, but did not attach, (1) "[a]ll depositions and trial testimony of defendants' own respective employees or former employees in asbestos litigation matters, as well as the depositions of other defendants', in this and other jurisdictions"; (2) respondent's "responses to San Francisco Superior Court General Order No. 129 Standard Interrogatories -- Asbestos, including all exhibits thereto or referenced therein"; (3) its "responses to Los Angeles Superior Court General Order Standard Interrogatories,including all exhibits thereto"; and (4) "[a]ll contents of this defendant's records and files."
Appellants also filed a response to defendants' Standard Interrogatory No. 32, which sought information about decedent's alleged exposure to asbestos (pursuant to LASC Asbestos General Order No. 14). In their response, appellants stated that decedent was exposed to an asbestos-containing product manufactured by another defendant (Donald Durham Company) while making sculptures as (1) a student from 1974 through 1982, (2) a part-time art instructor at a community college from 1975 until 2000, (3) an art instructor at a continuing education center from 1980 through 1990, (4) a part-time instructor at Fullerton College from 1982 through 2000, and (5) a self-employed sculptor working from her Fullerton residence from the late 1970s through the early 1980s. Appellants also stated that decedent was exposed to asbestos during a home remodeling of the Fullerton residence in 1980. Neither respondent nor its products were mentioned.
On June 17, 2014, appellants submitted a written response to respondent's special interrogatory which asked appellants to state all facts supporting their contention that decedent was exposed to asbestos-containing productsmanufactured by respondent. Appellants stated: Appellants repeated these statements in their response to form interrogatories propounded by respondent. In neither response did appellants identify respondent's "asbestos-containing product" or the number and dates of exposure to the product.
John DeLoof was deposed in August 20, 2014. During his deposition, John stated he was not familiar with respondent. However, he associated it with "Henry roof compounds." John had purchased approximately three cans of a "Henry's roof compound product" and had used the product on the roof, including on the ceiling vents and chimney flashings, four to five times between the 1970s and 1990s. He described the Henry product as a black "heavy viscous compound," not a powder, and packaged in a blue metal can. John could not recall what "type of product" it was, or whether he purchased the same product each time. He had no knowledge whether the Henry products contained asbestos.
Every time John worked on the roof, he would remove preexisting Henry roof compound. Usually, it was a small amount, "pea-sized" and "insignificant." However, on one occasion in 1976 or 1977, he had to remove a substantial amount of Henry product that he had previously applied. It would come off in "chunks." In addition, he observed "jet black" dust from "withered Henry's compound."
John stated that decedent was never up on the roof assisting him when he used a Henry product. Nor could he recall decedent ever personally using a Henry product. After he used a Henry product, John would get some on his hands and work clothes. He used paint thinner and rags to remove the product. Although he never watched decedent launder his work clothes, she would do so as part of her regular household work routine. John could not recall if decedent used paint thinner on any clothes, but it was customary for decedent to shake them before laundering them.
John also stated that in 2005, he hired someone to perform roofing work because "I didn't want to get myself and my clothes all dirty again." He acknowledged that a can of Henry roofing product was found in his garage and given to his attorney when the instant litigation started in 2013. John could not recall whether the product in that can was the same product he had previously used. Nor could he recall when and where he purchased the can. There was a "remote" possibility that the can of Henry product had been left over by the outside contractor.
On January 28, 2015, respondent filed a motion for summary judgment, arguing that appellants have "no evidence, nor can they reasonably obtain evidence to establish causation." Respondent argued that appellants' responses to discovery requests and John's testimony failed to identify any specific exposure to an asbestos-containing product manufactured by respondent. Although appellants initially stated that decedent personally used and was present when John installed, scrapped or removed a...
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