Scheiding v. Dinwiddie Const. Co.

• Decision Date: 11 January 1999
• Docket Number: No. A076930,A076930
• Citation: 69 Cal.App.4th 64,81 Cal.Rptr.2d 360
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 348, 99 Daily Journal D.A.R. 373 Robert SCHEIDING et al., Plaintiffs and Appellants, v. DINWIDDIE CONSTRUCTION COMPANY, Defendant and Respondent.

Page 360

81 Cal.Rptr.2d 360

69 Cal.App.4th 64, 99 Cal. Daily Op. Serv. 348,

99 Daily Journal D.A.R. 373

Robert SCHEIDING et al., Plaintiffs and Appellants, v. DINWIDDIE CONSTRUCTION COMPANY, Defendant and Respondent.

No. A076930.

Court of Appeal, First District, Division 2, California.

Jan. 11, 1999.

Brayton Harley Curtis, Philip A. Harley, Novato, James L. Oberman, Hercules, Gordon R. Levinson, for Plaintiffs and Appellants.

Ropers, Majeski, Kohn & Bentley, John Curran Ladd, Mary Ellen Gambino, Kathleen A. Clark, San Francisco, for Defendant and Respondent.

LAMBDEN, J.

In this case we gauge the evidence that must be "shown" to support a summary judgment motion in order to require the party opposing the motion to take up the burden of producing countervailing evidence.

Plaintiffs Robert and Rae Scheiding filed this action for damages following Robert's diagnosis with asbestosis and asbestos-related pleural disease. Plaintiffs appeal from summary judgment granted in favor of defendant Dinwiddie Construction Company (Dinwiddie) after the trial court failed to discern any triable issue of fact relating to the element of causation. Dinwiddie'smotion

was supported by a declaration of counsel stating that Robert's responses to discovery did not mention Dinwiddie. The motion contended that the plaintiffs had no evidence to suggest Dinwiddie's presence at work sites where Robert's asbestos exposure allegedly occurred. We reverse the judgment.

BACKGROUND

Plaintiffs filed their complaint on October 18, 1994, naming hundreds of defendants and alleging injury from Robert's asbestos exposure during work as a laborer and electrician. Dinwiddie was among the specified "Premises Owner/Contractor Liability Defendants" allegedly liable on three counts for causing the release of asbestos fibers at various work sites during Robert's career.

Dinwiddie answered and attended the deposition of Robert, which took place over a period of five days in mid-October 1995. Plaintiffs' verified responses to standard interrogatories named 45 employers and hundreds of jobsites where, from 1948 through 1990, Robert might have been exposed to asbestos.

Dinwiddie's motion for summary judgment (Code Civ. Proc., § 437c; all further unspecified statutory references are to the Code of Civil Procedure) argued lack of causation. It offered as undisputed material facts Robert's interrogatory responses identifying numerous employers and jobsites, and Robert's failure to identify in his deposition any jobsite where Dinwiddie was the general contractor. As support for the latter point, Dinwiddie referred to a five-volume deposition transcript, but without attaching it. Essentially, Dinwiddie's motion was based on the declaration of defense counsel stating that Robert failed to ever mention Dinwiddie in the course of discovery. It is undisputed that during the deposition neither Dinwiddie, nor any other defendant, ever asked Robert to identify any jobsite where Dinwiddie had been present. In fact, Dinwiddie asked no questions at the deposition and conducted no other discovery.

Plaintiffs opposed the motion by claiming Dinwiddie had not carried the statutory burden of "showing" that the element of causation could not be established. They did not dispute Dinwiddie's statement of undisputed facts except for this qualification on the lack of testimony identifying Dinwiddie: "Objection. Hearsay. Undisputed to the extent [Robert] did not say [Dinwiddie] was the general contractor at a particular jobsite. However, [Robert] was never asked whether [Dinwiddie] was the general contractor at any site or whether [he] recalled working near [Dinwiddie] employees."

Plaintiffs' counsel, Jacqueline M. Kramer, declared in opposition that: "I have reviewed the indexes of all five volumes of [Robert's] deposition transcriptions. Defendant is correct in that [he] did not discuss [Dinwiddie], however, ... [Robert] was never once asked whether [Dinwiddie] was the general contractor at any of his jobsites. In fact, the sole instance in which the name [Dinwiddie ] appears in the transcript is in the defendants' statement of appearances." Ms. Kramer also stated plaintiffs had received no discovery propounded by Dinwiddie. Plaintiffs offered no declarations or other affirmative evidence suggesting that Dinwiddie was at any of the jobsites. Plaintiffs referred only to their own interrogatory responses, which contained no such evidence.

After issuing a tentative ruling to grant the motion, the court inquired why the plaintiffs had not submitted any declaration saying they could identify Dinwiddie. Counsel--this time Gregory Sheffer--explained his office had decided against it: "Because had we done that, it would have encouraged Defendants to come and do the same thing. Simply do no discovery, do nothing else, and just say the Plaintiffs don't have any evidence. We are not going to do any work. They have to prepare an opposition." Subdivision (o)(2) of section 437c, he maintained, had not been satisfied because "no discovery specific to this issue was conducted" and Dinwiddie had not made an "affirmative" showing.

Dinwiddie relied on the amended summary judgment statute as it has been construed in several cases holding that a defendant can meet the burden of proof by showing, through use of discovery responses, that a plaintiff has no evidence to support the case.

Plaintiffs relied on other cases which have required more than a mere statement that there is an absence of evidence. The court, having warned plaintiffs' counsel their "high road" strategy was "very risky," took the matter under submission and ultimately adhered to its tentative ruling against the plaintiffs.

On appeal, plaintiffs reiterate their arguments from below, contending that reliance on Robert's deposition was not enough under the summary judgment statute to "show" there was no triable issue of fact. Plaintiffs contend that without the deposition having particularly addressed Dinwiddie's presence or absence from the jobsites, the initial burden could not have been met.

DISCUSSION

Standard of Review

A motion for summary judgment must be granted if all of the papers submitted show "there is no triable issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law. In determining whether the papers show ... there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, ... and all inferences reasonably deducible from the evidence...." (§ 437c, subd. (c).) A defendant has met its burden of showing a cause of action has no merit if it "has shown 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. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show ... a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff ... may not rely upon the mere allegations or denials of its pleading to show ... a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists...." (Id., subd. (o)(2); Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464 & fn. 4, 63 Cal.Rptr.2d 291, 936 P.2d 70.) The trial court's summary judgment rulings are subject to de novo review. (580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 14, 272 Cal.Rptr. 227.)

Attaching the deposition transcript was unnecessary

We initially dispatch plaintiffs' feeble grievance that Dinwiddie did not attach to its motion either the entire deposition transcript or "relevant excerpts" therefrom. Dinwiddie's statement of undisputed facts stated that the transcript did not identify anyone from Dinwiddie, and plaintiffs' response admitted the point. We do not see what would have been accomplished by asking the trial court to review five volumes of transcript--approximately 1,000 pages according to Dinwiddie --only to prove a conceded negative proposition. Given the undisputed lack of any identification of Dinwiddie, it is also hard to imagine what "relevant excerpts" might have been provided in lieu of the full transcript. This cannot be regarded as error; it did not impact the substantial rights of the parties; and it did not impair the trial court's ability to rule on the motion. We therefore disregard it. (§ 475.)

Shifting the burden under the amended statute

Dinwiddie's motion stated that plaintiffs had not revealed, in their responses to discovery propounded by other parties, any evidence to suggest that Dinwiddie was present at any of the jobsites where the alleged asbestos exposure occurred. This was undisputed, and Dinwiddie claims it sufficient under subdivision (o)(2) of section 437c to have "... shown that one or more elements of the cause of action ... cannot be established...." (Italics added.) However, the statute also provides that the burden of producing evidence of a triable issue of fact does not shift to the opposing party until such a showing is made. Plaintiffs argue that Dinwiddie's motion was essentially based on no evidence. Accordingly, plaintiffs submitted essentially no evidence in opposition, even after the trial court's warning that it was "risky" to do so. We are therefore confronted by a record that arguably discloses no affirmative evidence in support of the motion and no affirmative evidence in opposition. The issue thus presented is one of law: what quantum of evidence is needed to trigger the We begin by observing that the nature of summary judgment in California has changed dramatically over the last 10 years. The shifting of the burden of producing evidence that lies at the heart of this appeal could not have occurred under the summary judgment law as it previously existed. Formerly, a moving defendant had to affirmatively negate a cause of...