Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC393077, Abraham Khan, Judge.
Waters Kraus & Paul, Michael B. Gurien and Paul C. Cook for Plaintiff and Appellant.
Sims Law Firm and Selim Mounedji for Defendant and Respondent.
WILLHITE, J.
INTRODUCTION
Plaintiff Lynne Haver appeals from a judgment entered in favor of defendant and respondent BNSF Railway Company (BNSF) (sued as successor in interest to the Atchison Topeka and Santa Fe Railway Company (ATSF)), after the trial court granted BNSF’s motion for summary judgment. The motion for summary judgment was based on the ground that there was no triable issue of fact as to whether BNSF could be held liable in state court for Lynne Haver’s mesothelioma, which she allegedly developed in part because her former husband was exposed to asbestos from locomotives while he was employed by ATSF, because such liability is preempted by federal law. Plaintiff conceded that point in opposition to the motion for summary judgment, but raised a new theory, that her former husband was exposed to asbestos contained in pipe insulation in the railroad buildings. BNSF objected in its reply papers that plaintiff could not expand the issues to be addressed on summary judgment beyond what was encompassed in her complaint, and also argued that she had not raised a triable issue of fact regarding the existence of asbestos in the insulation, that it did not owe a duty to warn a spouse of an employee regarding potential work hazards, and that BNSF neither owed nor breached a duty to Lynne Haver because her injury was not known or reasonably foreseeable. The trial court granted the motion and entered judgment in favor of BNSF.
After the trial court entered judgment, Lynne died of mesothelioma. Shortly thereafter, this appeal was filed on her behalf by her attorneys. Her son, Josh Haver, filed a motion in this court asking that he be substituted in Lynne’s place, as her successor in interest (Code Civ. Proc., § 377.32); he also filed a declaration stating that there is no proceeding pending in California for the administration of Lynne’s estate, and that he is the authorized decedent’s successor in interest (Code Civ. Proc., §§ 377.11, 377.32). We granted the motion.
Plaintiff Lynne Haver and her former husband, Michael Haver (Mike), are often referred to herein by their first names for purposes of clarity. No disrespect is intended.
We conclude that Lynne was not permitted to raise a new basis for liability arising from previously unpleaded factual allegations in opposition to the motion for summary judgment, and therefore the motion was properly granted in favor of BNSF. We affirm the judgment, and find it unnecessary in so doing to resolve other issues raised by the parties on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The Complaint
Lynne was diagnosed with malignant pleural mesothelioma in March 2008. In June 2008, she filed a complaint for personal injury against numerous manufacturers and distributors of asbestos-containing products, and also against BNSF, who employed her former husband, Mike, from 1972 through 1974. She stated causes of action for negligence, strict liability, false representation, and intentional failure to warn.
Lynne alleged in her first cause of action for negligence that “she was exposed to dust from the asbestos-containing products that caused the release of respirable asbestos fibers in [Mike’s] occupations.” Lynne and Mike “used, handled, or were otherwise exposed to asbestos and asbestos-containing products and equipment referred to herein in a manner that was reasonably foreseeable.” Specifically, Lynne alleged that “for a period of many years, [Mike] worked with and/or around various glazing and joint compound products containing asbestos while working with the family business in Barstow, California, from approximately 1974 to 1978. In addition, [Mike] was employed by Santa Fe Railroad in Barstow, California, from July 1972 through 1974, where in his position, he was exposed not only to the locomotive engine repairs but also the brake repairs.” He also performed brake repair and replacement on his friends’ and family’s personal automobiles. He was thus exposed “to asbestos-containing products or equipment which caused the release of respirable asbestos fibers produced and/or sold by Defendants, and, in so doing, [Mike’s] clothing, tools, body and vehicle(s) were contaminated with great quantities of asbestos fibers.” Lynne breathed the asbestos fibers as a result of direct and indirect contact with Mike, his clothing, and his general surroundings.
BNSF answered the complaint in August 2008, and in December 2008 filed a motion for summary judgment which was set for hearing on January 22, 2009. Lynne had filed a motion for an order granting preference in setting the case for trial, which was granted. Trial was set for February 3, 2009, and the discovery cut-off date was extended until 21 days before trial.
The Motion for Summary Judgment
A. The Moving Papers
BNSF based its motion for summary judgment on the following contentions: (1) Lynne’s asbestos exposure claims are preempted by the Locomotive Boiler Inspection Act; (2) ATSF did not owe Lynne a common law duty to warn a spouse of an employee regarding potential work hazards; and (3) BNSF neither owed nor breached a duty to Lynne because her injury was not known or reasonably foreseeable to ATSF.
In its separate statement, BNSF presented as undisputed the following facts: Lynne alleged that her condition was caused, at least in part, by secondary exposure to asbestos fibers brought home on her former husband’s clothes and person while working for BNSF between 1972 and 1974. Mike was a hostler, responsible for moving locomotives in and out of the diesel shops; his job was always to work in or around locomotives and where locomotives were being worked on. Lynne alleged Mike was exposed to asbestos dust generated by the locomotive brakes, and while observing other workers repairing and maintaining locomotives. Responding to Lynne’s specific allegations (in her complaint and in her responses to interrogatories) that Mike was exposed to asbestos dust generated by locomotive engine repairs and brake repairs, BNSF asserted that while he may have been around materials containing asbestos, simply being around them, even when vibration is heavy, does not create an exposure. According to the expert declaration filed in support of the motion for summary judgment by Larry Liukonen, diesel locomotives have few asbestos-containing components and the few that do exist are non-friable. The Federal Railroad Administration has stated regarding asbestos in locomotives that “there is no evidence that the presence of asbestos poses a problem.” Asbestos-containing components in diesel locomotives fell into four main categories: brake shoes, pipe wrap, electrical components, and gaskets. Asbestos was never used to insulate the walls, ceilings or seats of locomotives. The potential release of asbestos from brake shoes has been studied extensively and it has been shown that they do not create a significant exposure. No measurable exposure to asbestos exists from pipe wrap. Testing done during removal and replacement of electrical parts determined that no exposure to asbestos occurs during these activities. Exposure from actual use of gaskets is well below the current and historic occupational exposure standards of OSHA and ACGIH, and about the same exposure one may experience from ambient air. The issue of para-occupational or take-home exposures to asbestos was not addressed by NIOSH until 1995. Even when it was recognized as a potential hazard, it was only for those with very high exposures to asbestos, and this would not have included railroad firemen and hostlers. Mike did not have any exposure to asbestos that was above normal background levels while working at the railroad, and likewise Lynne would not have had any measurable exposure to asbestos from his work clothes.
In its motion for summary judgment, BNSF argued that Lynne’s claims against it are preempted by the Locomotive Boiler Inspection Act (BIA), 49 United States Code section 20701 et seq. In Scheiding v. General Motors Corp. (2000) 22 Cal.4th 471, our Supreme Court upheld summary judgment in favor of locomotive manufacturers against railroad employees and their spouses, based on the preemption afforded by the BIA. The court in Scheiding relied on Napier v. Atlantic Coast Line (1926) 272 U.S. 605, which held that the BIA preempted any attempt by the state to regulate locomotive equipment and safety. BNSF further noted that “Plaintiff may also seek to distinguish Scheiding on the ground that some of Mr. Haver[’s exposure] occurred at the diesel shop where he observed other trades working on locomotives. However, that precise argument was very recently rejected in Frastaci v. Vapor Corp. (2007) 158 Cal.App.4th 1389. In that case, the plaintiffs unsuccessfully argued that preemption did not apply to claims based on asbestos exposure while a locomotive is being repaired at a roundhouse or diesel shop. (Id. at 1399.) The court rejected plaintiffs’ contention and upheld a demurrer against the locomotive manufacturers.” (Italics added.)
In moving for summary judgment, BNSF also asserted that it owed no duty to warn Lynne, a non-employee, either directly or indirectly, regarding an alleged work-related hazard, citing cases from other jurisdictions in which courts held that an employer’s duty to maintain a safe workplace does not extend to people outside the workplace. The Federal Employers Liability Act is the exclusive source of recovery for railroad employees injured or killed during the course of their employment, to the exclusion of state common law and statutory law. Imposition of liability in favor of the spouses of railroad employees would impermissibly infringe on an area of law exclusively within the province of federal law.
BNSF argued that it owed no duty to Lynne because it had no special relationship with her. Recognizing that foreseeability is a crucial factor in determining whether a defendant owes a duty of care, BNSF pointed out that the primary question to be answered is whether the category of conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may be imposed. It argued that Mike did not handle asbestos products as part of his job duties, and there were no components of diesel locomotives that presented any significant risk of asbestos exposure to a trainman. It was not until 1995 that NIOSH first published a report on home contamination, and even then, only occupations with high levels of exposure were covered, not including trainmen. Therefore, the risk of harm to Lynne from her husband’s employment was simply not foreseeable to BNSF at the time Mike worked for BNSF. A “plaintiff must prove ‘that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution, ’ and ‘that a reasonably prudent manufacturer would have known and warned about’ such risk. (Anderson v. Owens-Corning Fiberglas (1991) 53 Cal.3d 987, 1002-1003.)” BNSF argued that Lynne could not be found to have a lesser burden of proof against it, a user of allegedly dangerous products, than she would have against a manufacturer of such products.
Finally, BNSF requested summary adjudication of Lynne’s claim for punitive damages.
B. The Opposition
Lynne filed opposition to the motion for summary judgment, including a response to BNSF’s separate statement of facts. She conceded for purposes of the motion for summary judgment that Mike had no appreciable exposure to asbestos from the locomotives themselves. For the most part, Lynne did not dispute the facts asserted by BNSF, but rather responded that the facts were incomplete because Mike’s exposure to asbestos on the premises of the railroad, other than from the locomotives themselves, had not been addressed in BNSF’s motion for summary judgment. However, she argued that BNSF had presented no evidence or legal argument regarding Mike’s exposure to asbestos on the premises owned and controlled by BNSF, or that such liability would be preempted under the BIA. In support, she pointed to Mike’s deposition testimony that he was exposed to repair work being done on asbestos pipe insulation on steam pipes in the diesel shops of the BNSF railroad yard, separate and apart from the locomotives.
Lynne also set forth additional disputed material facts. Mike worked as a hostler for BNSF’s predecessor beginning in 1972, and Lynne lived with Mike beginning in mid-1973. From 1972 through 1974, Mike spent about half of his time in the diesel shops, and the other half of his time was divided between being a freight hostler, outside hostler, or hostler helper. He spent several hours each day inside the diesel shop waiting until a locomotive was ready to be moved. Other trades worked inside the diesel repair shop, including boilermakers, pipefitters, electricians, and laborers. Mike worked in close proximity to pipefitters while they worked on the locomotives and on insulated pipes within the shop. The pipefitters would perform maintenance on steam-heated insulated pipes underneath elevated platforms that allowed the workers to access the locomotives. The platforms allowed workers to walk underneath them, and Mike would do so, observing the repair work being performed by others. Mike testified that asbestos “was the insulation of the day, ” and he believed it was used in the insulated pipes. The pipefitters disturbed the insulation on the pipes while doing maintenance and repairs, which created dusty conditions. Mike said the dust got deposited on his clothing. Mike wore street clothes to his job at the railroad, and wore them home with dust and dirt from the workplace deposited on them. He would throw his work clothes in the laundry hamper or on the floor at home, and Lynne would launder them. Lynne said she did laundry four days per week. She washed Mike’s work clothes separately from the rest of the family’s because they were so dirty. She shook out his work clothes before putting them in the washer and breathed the dust that came off of the clothing. She also swept up the dust that settled on the floor around the washing machine.
David Clark was identified as BNSF’s corporate representative with the most knowledge of issues relating to this lawsuit. He testified it was BNSF’s intent to comply with OSHA. However, he testified to having no recollection of an awareness of OSHA’s regulations, or an awareness of asbestos hazards within BNSF, as of the time he started with the company in 1976. He confirmed that asbestos-containing materials had been used in the Barstow facilities for a long time, and were present in 1985, when BNSF conducted a survey to identify asbestos used at the Barstow station, including on the piping used in the buildings. BNSF never issued to its employees any warnings of asbestos hazards prior to conducting the survey in 1985. Clark had no evidence or knowledge of industrial hygiene studies, surveys, or air monitoring having ever been done by BNSF at the Barstow station.
Lynne submitted an expert declaration prepared by Edwin Holstein, in which he opined that mesothelioma could be caused by take-home exposure to asbestos, such as occurred with Lynne. He stated that knowledge and awareness of the dangers associated with asbestos had been documented for over 75 years. Knowledge and awareness of the risk of household exposure to occupational toxins, such as asbestos, brought home on the clothing of exposed family members, and recommendations for reducing such exposures, had been documented since at least 1935. In 1972, federal asbestos regulations were adopted pursuant to OSHA, which required the use of warnings, protective equipment, and other methods of minimizing dust levels.
C. The Reply
In its reply, BNSF asserted that it had addressed the only theory of liability alleged against it in Lynne’s complaint and her responses to interrogatories, that she was negligently exposed to asbestos dust brought home by her former husband from locomotives and locomotive repairs at the Barstow diesel shop. Lynne’s opposition to the motion for summary judgment conceded that theory of liability was preempted. Instead, she attempted to assert a new and previously unpleaded theory of liability, premises liability, based on Mike’s exposure to structural asbestos dust at the diesel shop.
In addition, BNSF argued that Lynne had not presented competent evidence that she was exposed to asbestos from BNSF’s facility. Mike essentially stated that he assumed the pipe insulation contained asbestos because it was “the insulation of the day.” Lynne’s expert, Holstein, relied only on that speculative statement as evidence that the insulation contained asbestos. Furthermore, the fact that the 1985 asbestos abatement study commissioned by BNSF, which was completed in 1990, identified some asbestos-containing insulation at the Barstow yard did not constitute evidence that the specific insulation described by Mike contained asbestos during the relevant time period, from 1973 to 1974.
BNSF also filed evidentiary objections to the declaration in opposition to the motion for summary judgment submitted by Holstein. Specifically, BNSF objected to paragraphs 10, 11, 26, and 27 as lacking in foundation and consisting of speculation.
D. The Ruling
The motion for summary judgment was heard on January 22, 2009. After hearing argument, the trial court granted summary judgment. The court ruled that BNSF’s evidence was sufficient to negate the allegations of exposure and duty to warn, or to show that the allegations could not be proved, given Lynne’s factually devoid responses to interrogatories and the witness’s unsupportive deposition testimony. BNSF had demonstrated that the BIA preempted state law causes of action against locomotive manufacturers for the defective design of products containing asbestos. In addition, in opposing summary judgment, Lynne had improperly relied upon a premises liability theory, which was completely outside the scope of the complaint, “which set[] forth no such cause of action or theory within other causes of action.” Even assuming that theory was pled, the court concluded that the opposing evidence referenced in the separate statement was “too unsupportive, insubstantial and incompetent to raise triable issues of material fact.” The court sustained all of the evidentiary objections to Holstein’s declaration, finding that his “opinion about asbestos exposures [was] unsupported by foundation reasonably relied upon by experts, ” including, for example, his opinion “‘that Plaintiff experienced significant household exposure to respirable asbestos fibers through the work of her ex-husband, Mike Haver, both through his work at the Santa Fe Railroad and elsewhere.’”
Judgment was entered in favor of BNSF, and this appeal followed.
Lynne first filed a petition for writ of mandate in this court, which we denied for failure to demonstrate entitlement to extraordinary relief by order dated January 28, 2009. (Haver v. Superior Court, B213585.)
DISCUSSION
I. Causation
BNSF contends on appeal that summary judgment was properly granted because the only basis for liability advanced by Lynne in her complaint was that Mike was exposed to asbestos generated by locomotive brakes and while observing other workers repairing and maintaining locomotive engines and brakes, and that he carried asbestos dust home on his person and clothing, to which Lynne was then exposed. State law causes of action against locomotive manufacturers for the defective design of products containing asbestos have been preempted by the federal BIA, and Lynne’s negligence action against the railroad is also preempted. For the first time, in opposition to the motion for summary judgment, Lynne raised the novel theory that Mike was exposed to asbestos dust from pipe insulation repairs on the premises of the railroad, rather than from the locomotives themselves. BNSF argues that because Lynne conceded for purposes of the motion that the locomotives did not contain friable asbestos, and because she was not permitted to raise a new basis for liability (i.e., premises liability) based on previously unpleaded factual allegations in opposition to the motion for summary judgment, the motion was properly granted. We agree.
A. Preemption
In Scheiding v. General Motors Corp., supra, 22 Cal.4th 471, our Supreme Court upheld summary judgment in favor of locomotive manufacturers in a lawsuit brought by railroad employees and their spouses arising out of purported asbestos exposure from locomotives, based on the preemption of state tort damage actions afforded by the BIA (49 U.S.C. § 20701 et seq.) (Id. at pp. 476-478, relying on Napier v. Atlantic Coast Line, supra, 272 U.S. 605 [BIA preempts any attempt by state to regulate locomotive equipment and safety].) In addition, in Frastaci v. Vapor Corp., supra, 158 Cal.App.4th 1389, the appellate court rejected plaintiffs’ argument that preemption did not apply to claims based on asbestos exposure occurring during repairs of locomotives, when the trains are not in use. The court concluded that the broad preemptive scope of the BIA, as recognized in Scheiding, “foreclose[d] state tort claims against locomotive manufacturers for defective design of their product, regardless of whether a locomotive is ‘in use’ or off line in roundhouses or repair shops.” (Id. at p. 1393; see discussion at pp. 1399-1403.) Thus, Lynne’s tort claim based on the allegation that Mike was exposed to asbestos in locomotives which he worked in and around is preempted by federal law, and cannot be maintained. In addition, Lynne conceded in her opposition to the motion for summary judgment that Mike had no appreciable exposure to asbestos from the locomotives themselves.
B. Premises Liability
BNSF contends on appeal, as it did in the trial court, that Lynne’s complaint alleged only that her injuries were caused by Mike’s exposure to asbestos dust generated by locomotive brakes and while observing other workers repairing and maintaining locomotive engines and brakes, and that he carried asbestos dust home, to which Lynne was exposed. She did not allege in her complaint that Mike was exposed to asbestos at the railroad from any source other than the locomotives, which claim was preempted. BNSF argues that her attempt, in opposing the motion for summary judgment, to introduce a new factual basis for BNSF’s liability and to convert her negligence cause of action into one for premises liability should not be countenanced.
“Following a grant of summary judgment, we review the record de novo for the existence of triable issues, and consider the evidence submitted in connection with the motion, with the exception of evidence to which objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176.)
The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. A defendant bears the burden of persuasion that “[o]ne or more of the elements of the cause of action” in question “cannot be separately established, ” or that “defendant establishes an affirmative defense” thereto. (Code Civ. Proc., § 437c, subd. (o).) 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 or she carries the burden of production, he or she causes a shift, and the opposing party is then subjected to a burden of production of his or her own to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
“‘The pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.]’ (Turner v. State of California (1991) 232 Cal.App.3d 883, 891 (Turner).) Thus, a ‘defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.’ (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.) ‘To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party’s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion. [Citations.]’ (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265.) ‘[T]he pleadings “delimit the scope of the issues” to be determined and “[t]he complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action.” [Citation.] [Plaintiff’s] separate statement of material facts is not a substitute for an amendment of the complaint. [Citation.]’ (Lackner v. North (2006) 135 Cal.App.4th 1188, 1201-1202, fn. 5 (Lackner).)” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253 (Laabs); see also cases discussed therein, at pp. 1253-1257.)
In Laabs, for example, the plaintiff asserted in her operative first amended complaint a cause of action against a city for premises liability based on the theory that her injuries were caused by a dangerous condition of public property in that there was inadequate sight distance at an intersection, and therefore another driver did not perceive the approaching vehicle in which plaintiff was a passenger. Plaintiff alleged that the city was negligent in designing, constructing, and controlling the road conditions, and by failing to install warning signs or devices. (Id. at pp. 1249-1250.) The city moved for summary judgment on the basis that it did not own or control one portion of the location at issue, that the intersection was not in a dangerous condition as a matter of law, and that the city was entitled to design immunity pursuant to statute and also to statutory immunity for failure to provide warning signals or devices. (Id. at p. 1250.) In opposing summary judgment, the plaintiff argued that the placement of a light pole constituted a dangerous condition that contributed to the severity of her injuries. (Ibid.) The trial court granted the motion for summary judgment. (Ibid.)
On appeal, the city argued that because plaintiff made no allegations in her complaint that the physical location of the light pole was a basis for dangerous condition liability, the appellate court could not consider the issue in determining the propriety of the trial court’s grant of summary judgment. Plaintiff argued that the placement of the light pole, while not specifically referenced in her complaint, was “‘closely tied to the City’s dangerous condition liability which was clearly alleged in plaintiff’s complaint.’” (Id. at p. 1252.) The appellate court rejected plaintiff’s argument. The court noted that the operative pleading did not make any reference to the fact that the vehicle in which plaintiff was riding struck a light pole. The additional fact, raised for the first time in opposition to the motion for summary judgment, “shifts the alleged dangerous condition to a portion of public property not remotely referenced in the amended complaint. It attempts to predicate liability on a totally different condition, not the least bit involved with the intersection or inadequate sight distance.” (Id. at p. 1258.) In upholding the grant of summary judgment, the appellate court observed: “Upon a motion for summary judgment, amendments to the pleadings are readily allowed. [Citation.] If a plaintiff wishes to expand the issues presented, it is incumbent on the plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself. [Citation.] To allow a party to expand its pleadings by way of opposition papers creates, as it would here, an unwieldy process.” (Id. at p. 1258.)
The situation before us is comparable. Lynne alleged in her complaint only that Mike was exposed to asbestos emanating from the locomotives. Rather than seeking leave to amend her complaint to add factual allegations that he was exposed to asbestos because he worked near pipefitters who created asbestos dust when they cut into pipe insulation within the premises of the railway, she merely raised those facts in her own separate statement in an effort to defeat summary judgment. We conclude that this was insufficient to expand the issues BNSF was required to address on summary judgment.
Lynne argues that her cause of action for negligence can be construed to encompass a claim for premises liability based upon exposure to asbestos-containing pipe insulation, because the analysis of a landowners’ liability for injuries suffered on land in their possession and control is governed by general negligence principles. (Rowland v. Christian (1968) 69 Cal.2d 108, 119.) She also points to language in the complaint to the effect that defendants (of which there were many) negligently and carelessly abated or failed to abate, warned or failed to warn of health hazards, serviced, installed, and repaired asbestos and asbestos-containing products and equipment, which substance “proximately caused personal injuries to users, consumers, workers, bystanders, and others, including the Plaintiff herein (hereinafter collectively called ‘exposed persons’), while being used in a manner that was reasonably foreseeable.” Defendants knew, or should have known, and intended that the asbestos-containing products would be used for insulation, construction, and other applications, including breaking, removal, rip-out, and other manipulation, resulting in the release of airborne asbestos fibers, and that through such foreseeable use and handling exposed persons, including plaintiff, would use or be in proximity of and exposed to asbestos fibers. However, the only specific factual allegation stated in regard to BNSF was that “Mike Haver was employed by Santa Fe Railroad in Barstow, California, from July 1972 through 1974, where in his position, he was exposed not only to the locomotive engine repairs but also the brake repairs.”
Even if we assume that the new factual issues could be said to be encompassed within the existing cause of action for negligence, Lynne never sought leave to amend her complaint to add new factual allegations, as she was required to do. After BNSF objected in its reply papers that Lynne was attempting to raise a new cause of action for premises liability based on new, unpleaded facts, Lynne did not seek leave to amend prior to or even during the hearing on the motion. In the absence of some request for amendment there is no occasion to inquire about possible issues not raised by the pleadings. (See Laabs, supra, 163 Cal.App.4th at p. 1257, fn. 6.)
We conclude that the only factual allegations which BNSF was required to address in its motion for summary judgment were with regard to Mike’s exposure to asbestos emanating from the locomotives, and that it did so by demonstrating that liability on that basis is preempted by federal law. Summary judgment was therefore properly granted.
Although the parties discuss other issues on appeal regarding the existence of a duty owed by BNSF to Lynne and the foreseeability to BNSF of the harm that Lynne suffered, the adequacy of Lynne’s evidentiary showing that the railroad facility contained asbestos, and the availability of punitive damages, we need not address such issues. Lynne’s failure to seek leave to amend her pleadings, to include factual allegations regarding Mike’s exposure to asbestos in pipe insulation at the railroad, foreclosed the only possibility she had of defeating summary judgment. Because that conclusion is completely dispositive of the matter, the other issues require no discussion.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to BNSF.
We concur: EPSTEIN, P. J.MANELLA, J.