Hunter v. Pacific Mechanical Corp.

• Citation: 37 Cal.App.4th 1282,44 Cal.Rptr.2d 335
• Decision Date: 23 August 1995
• Docket Number: No. A066817,A066817
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 14,342, 95 Cal. Daily Op. Serv. 6720, 95 Daily Journal D.A.R. 11,442 William HUNTER, Plaintiff and Appellant, v. PACIFIC MECHANICAL CORPORATION, Defendant and Respondent.

Page 335

44 Cal.Rptr.2d 335

37 Cal.App.4th 1282, Prod.Liab.Rep. (CCH) P 14,342,

95 Cal. Daily Op. Serv. 6720,

95 Daily Journal D.A.R. 11,442

William HUNTER, Plaintiff and Appellant, v. PACIFIC MECHANICAL CORPORATION, Defendant and Respondent.

No. A066817.

Court of Appeal, First District, Division 5, California.

Aug. 23, 1995.

Review Denied Nov. 16, 1995.

Brayton, Gisvold & Harley, Philip A. Harley, Novato, for plaintiff and appellant.

Clapp, Moroney, Bellagamba, Davis & Vucinich, Christopher W. Wood, Marc H. Baer, Steven W. Ritcheson, Menlo Park, for defendant and respondent.

KING, Associate Justice.

In this case we hold that recent statutory amendments adopted the burden-shifting characteristics of federal law for California summary judgment motions.

William Hunter has sued multiple defendants, including asbestos manufacturers, asbestos installers, premises owners and others, alleging injuries resulting from his occupational exposure to asbestos. The court granted summary judgment for one of the defendants, Pacific Mechanical Corporation (PMC), based on an absence of evidence supporting Hunter's allegation that he was exposed to asbestos-related activities engaged in by PMC at various job sites. The principal issue is whether the trial court applied an improper standard in granting PMC's motion for summary judgment. We conclude that under the recent amendments to Code of Civil Procedure section 437c ¹, the trial court correctly analyzed the issues and properly awarded PMC summary judgment.

Facts and Procedural History

This case arises out of alleged asbestos-related injuries sustained by Hunter as a result of his coming into contact with asbestos from 1950 through 1992. During this timeframe, Hunter worked as a bricklayer at various job sites, including refineries, around the Bay Area. PMC is a contractor that is alleged to have supplied, installed, and/or removed asbestos-containing products at the same job sites where Hunter was working. Hunter contends he worked in close proximity to PMC employees, and in doing so was exposed to asbestos and asbestos-containing products.

In his lawsuit, Hunter alleged the following causes of action against PMC: negligence, strict liability, negligent infliction of emotional distress, false representation and loss of consortium. Each cause of action is based on the premise that Hunter came into contact with asbestos or an asbestos-based product through PMC's activities, which exposure resulted in his contracting asbestos-related pleural disease.

After discovery closed and trial was fast approaching, PMC filed a motion for summary judgment. In support of its motion, PMC principally relied on Hunter's deposition testimony that he was not familiar with PMC and that he could not recall ever working in the same area with PMC employees. PMC argued that Hunter had made a factually unsupported claim because "there is no evidence that PMC was even at the same job sites as plaintiff. If PMC was not at the same job site, let alone right next to plaintiff at the same job site, it could not have been responsible for plaintiff's alleged exposure to asbestos. Clearly, by failing to show any nexus between the activities of plaintiff and PMC, he cannot establish that PMC breached any alleged duty it may have owed him." In opposition to summary judgment, Hunter offered evidence demonstrating that there was an overlap in work sites during various timeframes, suggesting that it was possible that he could have been present at the same job site as PMC employees.

The trial court granted PMC's motion for summary judgment, reasoning that "Defendant has shown, through the deposition of plaintiff, that plaintiff cannot establish liability on defendant's behalf and plaintiff has submitted no facts to refute this."

Applicable Legal Standards for Granting Summary Judgment

Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) We review the trial court's decision to grant PMC summary judgment de novo. (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1288, 35 Cal.Rptr.2d 113.)

In reviewing this summary judgment, we are governed by the 1993 amendments to section 437c, which became effective on January 1, 1994, shortly before PMC's summary judgment motion was heard and granted. PMC's burden, as the defendant on summary judgment, could be met only by showing "that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action." (§ 437c, subd. (o )(2), emphasis added.) ² Once the defendant has met that burden, the burden shifts to the plaintiff to show "that a triable issue of one or more material facts exists as to that cause of action...." (§ 437c, subd. (o )(2).) The plaintiff may not rely upon the mere allegations of its pleadings to show that a triable issue of material fact exists but, instead, "shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action." (§ 437c, subd. (o )(2).) The motion for summary judgment "shall be granted if all the papers submitted 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." (§ 437c, subd. (c).)

PMC argues that the recent legislative reform of California's summary judgment statute signals a move toward the federal standard governing burden of proof on summary judgment motions. The federal view is codified in Federal Rules of Civil Procedure, rule 56, as interpreted in Celotex Corp. v. Catrett (1986) 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 and its progeny. In Celotex, the Supreme Court recognized that the moving party always bears the initial burden of establishing the absence of a genuine issue of material fact. (Id. at p. 323, 106 S.Ct. at p. 2552.) However, if the nonmoving party bears the burden of proof on an issue at trial, the moving party need not support its summary judgment motion with evidence negating an essential element of the nonmoving party's case to satisfy its burden. (Ibid.) The moving party may simply point to the absence of evidence to support the nonmoving party's case. (Ibid.) The nonmoving party must then "set forth specific facts showing that there is a genuine issue for trial." (Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202.) This can be accomplished by producing "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." (Bhan v. NME Hospitals, Inc. (9th Cir.1991) 929 F.2d 1404, 1409, cert. denied, 502 U.S. 994, 112 S.Ct. 617, 116 L.Ed.2d 639.) If the evidence is "merely colorable" or is "not significantly probative," summary judgment shall be granted. (Anderson, supra, 477 U.S. at pp. 249-250, 106 S.Ct. at pp. 2510-2511.) A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. (Celotex, supra, 477 U.S. at p. 323, 106 S.Ct. at p. 2552.)

A recent California decision exhaustively analyzes the legislative history of the 1992 and 1993 amendments to section 437c, and concludes the Legislature intended that the burden-shifting characteristics of the federal procedure be applied to California summary judgment motions. The court set out the following framework signaling a new era in summary judgment practice in California: "Now, a moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o )(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact. The express language of the 1992 and 1993 amendments and the judicially noticed legislative history demonstrate the foregoing was intended by the Legislature." (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590, 37 Cal.Rptr.2d 653; accord Villa v. McFerren (1995) 35 Cal.App.4th 733, 41 Cal.Rptr.2d 719. For a further discussion of this subject, including the burden shifting where the plaintiff moves for summary judgment, see Weil & Brown, Cal.Practice Guide, §§ 10:233-10.267.) While the Supreme Court has not definitely spoken on the effect of the 1992 and 1993 amendments on California summary judgment practice, we note that Union Bank was denied review by the high court on March 23, 1995.

Hunter urges us not to follow Union Bank's lead in moving toward the federal direction and, instead, to continue to require a defendant as the moving party to affirmatively disprove an essential element of the plaintiff's allegations in order to show entitlement to summary judgment. (See, e.g., Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123, 127, 81 Cal.Rptr. 444.) In doing so, he relies on evidence of legislative intent considered and found unpersuasive in Union Bank. (See Union Bank, supra, 31 Cal.App.4th at p. 590, fn. 9, 37 Cal.Rptr.2d 653.) We choose not to reanalyze the identical issues and arguments that were meticulously addressed and rejected in Union Bank, the same court which decided Barnes. We find Union Bank to be persuasive in considering the effect of the 1992 and 1993 amendments on section 437c and we review the trial court's grant of summary judgment in the instant case using the standards set out therein.

At oral argument Hunter argued that the practical effect of our endorsement of Union Bank would be to permit summary judgment motions to be disguised discovery without the protections against misuse provided in the federal system, including allowing the responding party sufficient time to carry out discovery to meet the heightened burden imposed. We reject Hunter's contentions. The change is not disguised discovery but simply...