Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 426798
STEIN, J.
Earl Beck died from non-Hodgkin’s lymphoma and asbestos-related lung disease. Plaintiffs, the heirs of Earl Beck, filed suit against Huber, Hunt & Nichols of California, Inc. (Huber) and 40 other defendants, seeking damages on theories of survival, wrongful death and loss of consortium. They appeal from a judgment entered after the trial court granted Huber’s motion for summary judgment. We reverse, finding the evidence Huber submitted in support of its motion was insufficient to shift the burden to plaintiffs to produce evidence to show the existence of a triable issue of fact.
Huber, Hunt & Nichols of California, Inc., is now known as Hunt Construction Group, Inc.
Background
According to the allegations of plaintiffs’ first amended complaint, Mr. Beck worked as an insulator in Northern California from 1945 to 1990, and all defendants were in some way involved in exposing Mr. Beck to asbestos and/or benzene at over 200 job sites over the course of his career. The allegations against Huber appear to arise from Huber’s work as a general contractor during a number of those years. On December 1, 2006, Huber moved for summary judgment, asserting, “Plaintiffs have failed to produce evidence sufficient to create a triable issue of material fact with respect to Huber’s alleged liability. Plaintiffs fail to produce evidence of causation. Plaintiffs are unable to show [Mr. Beck] was even exposed to an asbestos-containing product as a result of the contracting activities of Huber. Furthermore, even if [Mr. Beck] was exposed to the job site alleged by Plaintiffs, there is insufficient evidence that such exposure was a substantial factor in causing [Mr. Beck’s] alleged injuries.”
Huber supported its motion with plaintiffs’ responses to Huber’s interrogatories. Asked to state all facts on which plaintiffs based the belief Mr. Beck had been exposed to asbestos products as a result of Huber’s contracting activities, plaintiffs reported Mr. Beck had worked as an insulator “on multiple Pacific Telephone and Telegraph facilities in the Bay Area including, but not limited to” a building on Franklin Street in Oakland. Plaintiffs asserted Huber was the general contractor on a 1965 job at the Oakland building where Huber exposed Mr. Beck to asbestos-containing construction materials. Plaintiffs identified Robert Cantley, another insulator, as a source of their information about Mr. Beck’s contact with Huber. Asked to state the total duration of Mr. Beck’s exposure during his employment at each site, plaintiffs responded, “Unknown at this time. Discovery continues.” Plaintiffs’ responses also recited that they had “identified Joyce Zorn as the person most knowledgeable regarding [Huber’s] business activities in the Bay Area. Plaintiffs intend to notice her deposition shortly.”
Huber also cited portions of Mr. Cantley’s deposition testimony. Responding to questions posed by Huber’s attorney, Mr. Cantley testified he had worked at various job sites which he believed were owned, operated or built for the purpose of telephone transmission, including Pacific Telephone and Telegraph Company in San Francisco and San Jose, but did not know if all the phone companies were owned or operated by either Pacific Bell or Pacific Telephone and Telegraph. Mr. Cantley was given the addresses of certain buildings and asked if he could recall whether the building was an office building or a switching facility or both. He answered, “No, I can’t be sure because there was so many. One blends into the other, and [when] you worked on so many, you can’t say this one was switching and this one was office or combination of both because you had no reason to have that specific recollection.” He could not remember which general contractor worked at which phone company job, although he could remember the names of several contractors at the phone company sites. He also stated, “[I]f I had a list in front of me, I could pick out 500 subcontractors, [but] can I remember specifically which ones on specific jobs? Impossible.”
Huber contended this evidence established plaintiffs could not show causation, asserting, “Plaintiffs identify one site, Pacific Telephone and Telegraph Company Corporate Headquarters office building in Oakland, California, as where [Mr. Beck] was exposed to asbestos-containing products as a result of Huber’s contracting activities. Plaintiffs rely on the general testimony of co-worker Robert Cantley to support their claims. Mr. Cantley is unable to recall specific details about the phone company jobs, in fact he does not distinguish between Pacific Bell and Pacific Telephone and Telegraph jobs. He generally recalls the phone company jobs involved pipe insulation and duct insulation. There is no specific testimony or evidence regarding [Mr. Beck’s] work or exposure to asbestos-containing products at the Pacific Telephone and Telegraph Company Corporate Headquarters office building in Oakland, California.”
In opposing the motion, plaintiffs pointed out Huber’s attorney had not questioned Mr. Cantley about the Oakland jobsite. They filed a 1965 work order of Huber referring to the Oakland building. Plaintiffs filed the declaration of Robert Cantley. Mr. Cantley declared he had worked with Mr. Beck at the Oakland facility on various occasions in the mid-1960’s. According to Mr. Cantley, Huber had been a contractor at the facility “on many of the occasions I worked there with Mr. Beck. I was able to identify [Huber’s workers and laborers] as being employed by [Huber] because of the company name on their trucks, toolboxes and clothing. [¶] . . . [Huber] laborers regularly swept up construction debris, including fireproofing and asbestos steam pipe insulation, in close proximity to EARL BECK and I. We also worked in close proximity to their mechanical workers disturbing fireproofing and existing asbestos pipe insulation. The work [of Huber’s] employees . . . caused visible dust to be emitted into our direct work area. On many occasions I have seen Mr. Beck standing within feet of [Huber’s] laborers sweeping up fireproofing and asbestos insulation debris.” Plaintiffs also cited portions of Mr. Cantley’s deposition testimony where he stated he worked with Mr. Beck at Pacific Telephone and Telegraph jobsites not only in San Francisco and San Jose, but also in Oakland, Hayward and Sunnyvale, and would be able to provide some information about those sites. During his career the Huber “name came up numerous times. Not nearly as many as [some other contractors] in that approximate time frame; . . . but that’s my best recollection.” Asked if his contacts with Huber could be characterized as less than a hundred, more than a hundred, more than ten, Mr. Cantley responded, “A dozen times, and . . . I’m pulling it out of thin air.”
Plaintiffs also filed the declaration of industrial hygienist Kenneth Cohen. Mr. Cohen provided information about himself indicating he was an expert in the field of exposure to asbestos in the workplace who had tested a wide variety of fireproofing and insulation products, including those used in commercial and industrial settings during the 1960’s. Mr. Cohen stated he had reviewed Mr. Cantley’s declaration, and “[b]ased upon my education, training, and career, the timeframe involved, and the type of product, it is more likely than not the fireproofing and insulation materials identified by Robert Cantley were asbestos containing. [¶] . . . Based on my experience, training, and career, it is more likely than not that EARL BECK was exposed to asbestos from [Huber] employees sweeping up debris from fireproofing and insulation in the 1960s. Such activity would cause measurable levels of asbestos fibers to be released into the air.”
Plaintiffs also filed amended responses to defendant’s interrogatories, which essentially repeated their earlier responses but added claims that Mr. Beck had worked in close proximity to Huber employees at the Oakland jobsite and other unspecified sites, as the employees disturbed and swept up asbsetos-containing insulation and fireproofing materials.
Huber objected to plaintiffs’ evidence in the trial court and objects to it here. As we find Huber’s evidence was insufficient to shift the burden to plaintiffs to produce any evidence, we do not rule on Huber’s objections. We include plaintiffs’ supporting evidence here only to show that it seems likely plaintiffs would be able to introduce at least some evidence of causation should the matter go to trial.
The trial court granted Huber’s motion for summary judgment. Citing this court’s decision in Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416 (Lineaweaver), the trial court found Huber’s motion and supporting evidence were sufficient to shift the burden to plaintiffs to prove exposure to asbestos-containing materials as the result of Huber’s activities, and also to prove “there is a ‘reasonable medical probability based upon competent expert testimony that the defendant’s conduct contributed to plaintiff’s injury.’ ” The court expressed the belief plaintiffs had presented evidence showing Mr. Beck was present while Huber’s employees swept up asbestos-containing construction debris, but found plaintiffs had failed “to present any competent medical testimony that the above-described exposure would be a substantial factor in causing decedent’s death.”
The record indicates the court, upon reconsidering the matter in connection with a new trial motion filed by plaintiffs, may have thought better of its ruling. The court suggested it believed that, contrary to its earlier ruling, Huber’s moving papers did not raise the issue of medical causation and did not require plaintiffs to produce expert testimony of medical causation. By the time of the hearing on the new trial motion, however, the time for ruling on it had passed so that it was denied by operation of law. (Code Civ. Proc., § 660; Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1450-1451.) Plaintiffs later withdrew the motion, conceding the court had lost the power to rule on it.
Discussion
I.
Summary Judgment
A motion for summary judgment must be granted if all 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 that 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. . . .” (Code Civ. Proc., § 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 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. (Id., subd. (p)(2).)
The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] No more is called for.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).)
The defendant is not required conclusively to negate an element of the plaintiff’s cause of action. The defendant need only show the plaintiff cannot establish at least one element of the cause of action, such as by showing the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Id. at pp. 853-854.) However, “[s]ummary judgment law in this state . . . continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. . . . The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at pp. 854-855, fn. omitted.)
We review the trial court’s summary judgment rulings de novo, viewing the evidence in a light favorable to plaintiffs as the losing parties, liberally construing the plaintiffs’ evidentiary submission while strictly scrutinizing the defendant’s own showing, and resolving any evidentiary doubts or ambiguities in plaintiffs’ favor. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100 (Andrews).)
II.
Causation
A plaintiff alleging asbestos-related injury has the burden of proving there is a “reasonable medical probability based upon competent expert testimony that the defendant’s conduct contributed to plaintiff’s injury.” (Lineaweaver, supra, 31 Cal.App.4th at p. 1416.) When the defendant is a manufacturer or supplier of an asbestos containing product, the plaintiff must prove the plaintiff was exposed to asbestos-containing materials manufactured or furnished by the defendant with enough frequency and regularity as to show a reasonable medical probability that this exposure was a substantial factor in causing the plaintiff’s injuries. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 975-976; McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103 (McGonnell).) When, as here, the defendant did not itself supply an asbestos-containing product but it is alleged the defendant’s conduct exposed the plaintiff to asbestos, the plaintiff is not required to prove exposure to any particular product; rather, the plaintiff must prove the defendant’s activities caused the plaintiff to be exposed to asbestos with sufficient frequency to show a reasonable medical probability that the exposure was a factor in the plaintiff’s injuries.
III.
Application to This Case
Under Aguilar, in order to meet its initial burden of producing evidence, Huber had to show not just that plaintiffs had not yet produced evidence of causation, or even that they did not possess needed evidence. Huber was required to show plaintiffs could not reasonably obtain the evidence they needed to prove causation; i.e., that Huber’s activities exposed Mr. Beck to asbestos with sufficient frequency as to make that exposure a factor in his illness and death. (Aguilar, supra, 25 Cal.4th at pp. 853-854.) Put another way, Huber was required to produce evidence demonstrating plaintiffs would not be able to establish through evidence and/or witnesses the defendant was indeed a cause of the harm. (Scheiding v. Dinwiddie Construction (1999) 69 Cal.App.4th 64, 80.)
The defendant in Andrews, supra, 138 Cal.App.4th 96, a manufacturer of asbestos-containing products, sustained this burden. The defendant submitted the plaintiff’s deposition testimony that he had no knowledge whether he had been exposed to one of the defendant’s products, and also submitted the plaintiff’s boilerplate, nonresponsive answers to comprehensive special interrogatories designed to elicit information about the plaintiff’s exposure to the defendant’s products. (Id. at pp. 105-106.) The court explained, “If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs’ factually devoid discovery responses. [¶] In short, [the defendant’s] discovery was sufficiently comprehensive, and plaintiffs’ responses so devoid of facts, as to lead to the inference that plaintiffs could not prove causation upon a stringent review of the direct, circumstantial and inferential evidence contained in their interrogatory answers and deposition testimony. (Id. at p. 107, fn. omitted.) As this court later summarized the situation, “In light of the interrogatory questions, the plaintiffs’ failure to provide any information in effect admitted that they had no further information.” (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1440 (Weber).) In McGonnell, supra,98 Cal.App.4th 1098, another product case, the plaintiff’s deposition testimony established the plaintiff could and did identify the kinds of materials he worked with and the brand names of some of the products he used. He was one of the best persons, if not the best person to identify the products and substances to which he had been exposed and yet he could not recall ever having worked with the defendant’s products or near others using the products. That the plaintiff was unable to remember working with the defendant’s product therefore established the plaintiff would be unable to produce evidence linking the product to the plaintiff’s illness. (Id. at pp. 1101, 1104.)
The defendants in Andrews, supra, 138 Cal.App.4th 96,and McGonnell, supra, 98 Cal.App.4th 1098, were able to show the plaintiffs could not “reasonably obtain[] needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar, supra, 25 Cal.4th at p. 855.) The situation is different here. As plaintiffs point out, Huber made no attempt to question Mr. Cantley about the Oakland job, asking him only general questions about his work and providing him with no information that might help him determine whether Huber was in fact there. In this respect the situation is similar to that in Weber, where we concluded the defendant, John Crane, had not met its burden even though the plaintiff had been asked if he was familiar with the defendant’s name, could associate any product or service with that name or could recall having worked with or around any of the defendant’s products. (Weber, supra, 143 Cal.App.4th at p. 1436.) We found, “John Crane produced no evidence allowing an inference that plaintiffs neither possess, nor reasonably can obtain, any evidence that Weber was exposed to an asbestos-containing product manufactured or supplied by John Crane. John Crane did not support its motion with evidence that plaintiffs failed to provide meaningful responses to comprehensive interrogatories designed to elicit all the evidence plaintiffs had to support their contention of liability. John Crane also did not show that, after extensive discovery, plaintiffs asserted they had no additional information.” (Id. at p. 1442.) John Crane could not meet its burden with generalized questions about whether the plaintiff recalled its name or its product. “In short, all the evidence established was that Weber, without benefit of knowing what products John Crane manufactured or supplied, or what they looked like, or what John Crane’s label or logo might have been, could not recall working with any John Crane product. A motion for summary judgment is not a mechanism for rewarding limited discovery; it is a mechanism allowing the early disposition of cases where there is no reason to believe that a party will be able to prove its case.” (Ibid.) Similarly, here, without carefully questioning Mr. Cantley about the Oakland site, or providing him with information Huber had that could help him recall the details of that particular site, Huber has not demonstrated Mr. Cantley will be unable to recall that he or Mr. Beck or Huber were there, or the nature of the work they did or whether Huber’s work in some way caused Mr. Beck to be exposed to asbestos.
In addition, although Huber characterizes the discovery leading up to its motion for summary judgment as “extensive,” the record indicates discovery had by no means ended. Significantly, plaintiffs were planning to but had not yet deposed Joyce Zorn, the person most knowledgeable about Huber’s business activities in the Bay Area. That plaintiffs knew Huber had been at one jobsite where Mr. Beck had worked did not preclude the possibility they would learn of other relevant jobsites by deposing Ms. Zorn. It also is significant that Huber was a contractor, as opposed to a manufacturer. A manufacturer such as the defendant in McGonnell, supra, 98 Cal.App.4th 1098, has no particular reason to know where its products ultimately were used. It can be presumed a contractor such as Huber will have discoverable records establishing its presence at a given site. While Huber emphasizes plaintiffs had not identified a brand, trade name, manufacturer or supplier of any particular asbestos-containing product to which Mr. Beck was exposed, plaintiffs were not required to do so to avoid summary judgment. Because Huber’s liability is based on its work and not on its product, plaintiffs need only produce evidence Huber’s activities exposed Mr. Beck to some asbestos-containing materials with sufficient frequency as to have been a cause of Mr. Beck’s illness.
Finally, although at this stage of the proceedings it is not known whether plaintiffs will be able to prove Mr. Beck came into contact with Huber employees on approximately 12 occasions, or whether that contact included exposure to asbestos-containing products, the declarations of Mr. Cantley and Mr. Cohen suggest there is evidence supporting plaintiffs’ case against Huber—or at least that it cannot be presumed plaintiffs will be unable to prove their case. As we find the burden did not shift to plaintiffs to make a prima facie showing of causation, we make no critical examination of the evidence they produced, finding only that their ability to produce some evidence underscores Huber’s inability to establish such evidence is undiscoverable.
Conclusion
The judgment is reversed.
We concur: MARCHIANO, P. J., SWAGER, J.
As we find Huber’s evidence was insufficient to shift the burden to plaintiffs to show Huber’s activities exposed Mr. Beck to asbestos-containing materials, we need not decide whether Huber’s moving papers raised the question of medical causation to the degree that plaintiffs were required to respond to it.