Ganoe v. Metalclad Insulation Corp.

• Citation: 227 Cal.App.4th 1577,174 Cal.Rptr.3d 787
• Decision Date: 21 July 2014
• Docket Number: B248941
• Court: California Court of Appeals Court of Appeals
• Parties: Rose Marie GANOE et al., Plaintiffs and Appellants, v. METALCLAD INSULATION CORPORATION, Defendant and Respondent.

227 Cal.App.4th 1577

174 Cal.Rptr.3d 787

Rose Marie GANOE et al., Plaintiffs and Appellants,

v.METALCLAD INSULATION CORPORATION, Defendant and Respondent.

B248941

Court of Appeal, Second District, Division 3, California.

Filed July 8, 2014

As Modified July 21, 2014

See 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 243 et seq.

APPEAL from a judgment of the Superior Court of Los Angeles County, Emilie Elias, Judge. Reversed. (Super. Ct. No. BC449400)

The Arkin Law Firm and Sharon J. Arkin, Los Angeles; Farrise Firm and Simona A. Farrise, Los Angeles, 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, Los Angeles, for Defendant and Respondent.

CROSKEY, J.

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 plaintiffs have 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 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 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 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,” 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 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, 81 Cal.Rptr.2d 360 (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...