Miranda v. Bomel Const. Co., Inc.

• Decision Date: 27 October 2010
• Docket Number: No. G042073.,G042073.
• Citation: 115 Cal.Rptr.3d 538,187 Cal.App.4th 1326
• Parties: Rudy MIRANDA et al., Plaintiffs and Appellants, v. BOMEL CONSTRUCTION CO., INC. et al., Defendants and Respondents.
• Court: California Court of Appeals

187 Cal.App.4th 1326

115 Cal.Rptr.3d 538

Rudy MIRANDA et al., Plaintiffs and Appellants,

v.BOMEL CONSTRUCTION CO., INC. et al., Defendants and Respondents.

No. G042073.

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

July 30, 2010.

Review Denied Oct. 27, 2010.

Perona, Langer, Beck & Serbin, Ronald Beck and Ellen R. Serbin, Long Beach, for Plaintiffs and Appellants.

Trachtman & Trachtman, Kevin L. Henderson and Ryan M. Craig, Mission Viejo; Ronald P. Kaplan, Woodland Hills, for Defendant and RespondentBomel Construction Co., Inc.

Collins Collins Muir & Stewart LLP, Brian K. Stewart, Douglas Fee, Joe A. Bollert and Christian E. Foy Nagy, South Pasadena, for Defendant and RespondentJ/K Excavation & Grading Co., Inc.

OPINION

O'LEARY, J.

Rudy Miranda worked as a locksmith at a university campus in Fullerton.His office was located next to a vacant lot, used in 2005 for stockpiling excess dirt from a large construction project.Miranda contracted the infectious fungal disease Coccidioidomycosis, commonly called "Valley Fever."He sued general contractor, Bomel Construction Co., Inc.(Bomel), and subcontractor, J/K Excavation & GradingCo., Inc., (J/K).Miranda's general negligence complaint alleged Bomel and J/K "negligently, carelessly and unlawfully allowed the excavated dirt to be in a dangerous, defective, and unlawful condition so as to cause [Miranda] to sustain severe injuries and damages when he breathed the injurious particles from the excavated dirt."Miranda's wife, Donna Miranda(Donna), sued for loss of consortium.

The trial court entered summary judgment in favor of Bomel and J/K, concluding they did not owe a duty to protect Miranda from exposure to the fungus, and it could not be established they proximately caused Miranda's or his wife's injuries.We conclude the court was right and affirm the judgment.

I

Bomel contracted with the Trustees of the California State University to construct a six-story parking structure on the California State University, Fullerton (CSUF) campus.Bomel agreed to excavate, remove, and dispose of all dirt not necessary for the project, known as the PS2 project.Bomel hired J/K to excavate approximately 1,600 cubic yards of dirt from the PS2 project site and transport it to a vacant lot on the campus, known as Dumbo Downs.Miranda's locksmith shop was located approximately 10 to 15 feet away from Dumbo Downs.

Construction started during the school's spring break in 2005 and ended 14 months later.On May 26, 2005, J/K deposited 1,600 cubic yards of the PS2project's dirt on Dumbo Downs.This stockpile of dirt was approximately 100 feet deep, 80 feet wide, and 10 feet high.Thereafter, other contractors and subcontractors working on different construction projects also deposited dirt on Dumbo Downs.

For approximately three months, from May 27 to September 1, 2005, the dirt pile was watered down only once.It was not sprayed with polyurethane or otherwise covered until September 2, 2005.

Miranda began exhibiting symptoms of coughing, fatigue, difficulty breathing, fever, and body aches in August 2005.Over time his condition worsened, and in 2006, he underwent surgery to remove a portion of his left lung.The pathology report confirmed the existence of Valley Fever.

At the end of April 2007, Miranda and his wife (hereafter referred to collectively and in the singular as Miranda) filed a complaint for negligence and loss of consortium against Bomel and J/K.In November 2008, Bomel and J/K each filed a motion for summary judgment, both asserting: (1)they did not owe Miranda a duty to protect him from the exposure to an airborne fungus; and (2) Miranda would not be able to prove causation as a matter of law due to the nature of the disease caused by inhalation of airborne fungal spores endemic to a large portion of California.Bomel and J/K jointly submitted the expert declaration of Ben Kollmeyer, a certified industrial hygienist, who provided information on the nature of the fungus and the mode of infection.

Kollmeyer declared, "Valley Fever is also known as coccidioidomycosis and caused by a fungus known as Coccidioides immitis(the ' Cocci fungus')."He explained, "Persons can become infected with the Cocci fungus by inhaling fungal spores that become airborne after disturbance of contaminated soil by humans or natural disasters, e.g., dust storms, earthquakes, wildfires and manmade activities.[¶] ... Any manmade activity or event which occurs on virgin (undeveloped) soil can create dust.This has the potential of disturbing spores of the Cocci fungus, if spores are present in the soil ... and may occasionally result in infections, not only tothe people participating in the activity but also to other people in the area at the time of the activity.These activities include agricultural work, land development and construction, mining, dusty recreational activities, vehicles on unpaved roads, home gardening, and landscaping."

Kollmeyer declared the fungus spores can travel great distances.He stated, "Strong winds can carry spores of the Cocci fungus for hundreds of kilometers.Therefore, in certain circumstances infection can be spread well outside of recognized endemic areas.For example, strong winds during a storm inKern County, California carried the Cocci fungus pores 500 kilometers north to the vicinity of Sacramento, California (infecting as many as 7,000 people in Sacramento County)."Kollmeyer attached scientific articles and reports supporting these facts.

In addition, Kollmeyer declared, "The Cocci fungus is hyperendemic in Kern County and areas of the San Joaquin Valley, where almost one third of the population tests positive for exposure.Additionally, the Cocci fungus is endemic to other arid and semi-arid areas of [S]outhern California.According to the Center for Disease Control of people who live in an endemic region, about 10-50 [percent] will have evidence of exposure.For the year 2005, public health agencies in the respective counties reported 1.3 infection cases per 100,000 persons in Orange County, California and 2.23 cases per 100,000 persons in Los Angeles, California."Kollmeyer attached documentation also supporting these statistics.

Finally, Kollmeyer opined, "Since a Valley Fever infection is almost always the direct result of inhalation of airborne spores of the Cocci fungus, the exact source (home, recreation, work, travel, etc) of the exposure cannot be determined absent scientific data, e.g., soils tests, confirming the existence of the Cocci fungus in the soil at issue at the time of exposure."In rendering his opinion, Kollmeyer relied heavily on a report prepared by employees of the U.S. Geological Survey (USGS) and the School of Medicine at the University of California, Davis, discussing the characteristics of the disease and providing risk management strategies for workers performing geological fieldwork in areas endemic for Valley Fever.This scientific report included a detailed description of the endemic areas, and the character of the disease.It supported Kollmeyer's conclusion detection of Cocci fungus requires scientific data: "The presence of [ Cocci fungus] in specific areas is determined by direct sampling of soils, identification of positive skin and serologic tests in non-mobile human populations, and recognition of the infection in humans and animals (mostly dogs)."

The USGS study also revealed that large numbers of people are exposed to the fungus spores and are infected, but very few people contract the more serious form of the disease."Most people who are long-term residents (several years) in areas where [ Cocci fungus] is present are exposed to [the spores] of the fungus and are consequently infected.About 60 percent of the people infected are asymptomatic, their exposure to the infection being reflected only by a positive ... skin test.Most symptomatic cases result in primary infection with relatively mild cold or influenza-like symptoms ... [and] in some cases there may be pneumonia.In about [one] percent of those infected ... [there are] fatal results."The authors of the report concluded, "Clearly, dust control measures are the main defense against infection.However, it is important to note that dust itself is only an indicator that[ Cocci fungus spores] may be airborne in a given area and that some dust clouds maybe completely free of [it]....[The spores], whose size is well below the limits of human vision, may be present in air that appears relatively clear and dust free.Such ambient, airborne [spores] with their low settling rates can remain aloft for exceedingly long periods and be carried hundreds of kilometers from their point of origin."(Italics added.)

Miranda filed an opposition to the summary judgment motions and objected to portions of Kollmeyer's declaration as reaching beyond the scope of his expertise.In his opposition, Miranda argued Bomel and J/K owed a duty to protect Miranda from his exposure to dust inhalation, and causation was a triable issue of material fact.The motion was supported by declarations from four expert witnesses: Theo Kirkland, Nachman Brautbar, Daniel Napier, and Dan Rosen.

Theo Kirkland, a physician, had written peer-reviewed articles on Valley Fever.He agreed Valley Fever was caused by the Cocci fungus that grows as a mold in the soil and is endemic to Southern California, including Fullerton.He opined that since the fungus infects humans by entering the lungs, "Exposure to dust from soil is a critical factor in determining the risk for infection of Valley Fever.[Citation.]As a result, manmade activities, such as the stockpiling of uncovered dirt which creates dust that is released into the air and is inhaled by persons, will significantly increase the risk of acquiring the disease."He also noted, "the absence of any testing for the [C]occi fungus at any given location does not preclude a physician from rendering an opinion, to a reasonable degree of...