Opinion
G031413.
11-14-2003
GEORGE KIRKLAND, Plaintiff and Appellant, v. BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Defendant and Respondent.
Brayton—Purcell, Alan R. Brayton, Gilbert L. Purcell, Lloyd F. LeRoy and David Polin for Plaintiff and Appellant. Sims Law Firm, Wayne R. Sims, Selim Mounedji and Richard W. Harrington for Defendant and Respondent.
George Kirkland challenges a summary judgment obtained by Burlington Northern and Santa Fe Railway Company (BNSF) in a personal injury action based on alleged asbestos exposure. Because BNSFs separate statement of facts in support of summary judgment was insufficient to shift the burden of production to Kirkland, the grant of summary judgment was improper. We therefore reverse.
I
FACTS AND PROCEDURAL BACKGROUND
Kirkland worked for BNSFs predecessor, the Santa Fe Railroad (SFR), for six weeks in 1964. Kirklands complaint alleged he was exposed to asbestos at SFR while working "on and around locomotives." An exhibit to the complaint specified the exposure "may have been" while "driving a cart" and "filling oil in journal boxes." As an "oiler," Kirkland lubricated the boxcar axles by adding oil to the "journals" on each boxcar. Each journal consisted of a box inside which the axle rotated. As described by Kirkland, the journals "contained cloth like mops that absorbed the oil to keep it from spilling out of the journal box. At times, these journal boxes would have no oil in them and contain fresh dry cloth like mops. These cloth like mops turned dark in color when the oil was added." Kirkland stated in his declaration that he "never wore a mask of any kind while performing this work."
Kirkland produced a "Supplemental Case Report" below in which he listed "five product identification witnesses who put asbestos-containing products at the Santa Fe Railroad during the time that plaintiff worked there." Two of the witnesses, according to Kirkland, "each place[d] the asbestos-containing products of some 13 defendants at the Santa Fe Railroad." Four of the witnesses specifically identified "JOHNS-MANVILLE" as a manufacturer of these products. The fifth witness, per Kirkland, recalled "working out of a blacksmith shop that had an asbestos lined siding exterior," in addition to "asbestos welding gloves and sheeting being used at the railroad."
At his deposition, Kirkland could not recall whether he worked with any of the five witnesses listed in his case report. When asked, "Sir, do you have any reason to believe that you were exposed to asbestos while working for the Santa Fe Railroad?" Kirkland answered "Not that I know of." Prior to Kirklands answer, his attorney objected that the question lacked foundation and called for speculation.
BNSF moved for summary judgment on grounds that Kirkland could not prove he had been exposed to asbestos during his six weeks of employment. In its entirety, BNSFs separate statement of undisputed material facts read as follows: "1. Plaintiffs complaint alleges two causes of action against BNSF: (1) general negligence under the Federal Employers Liability Act (FELA) and (2) violation of the Boiler Inspection Act (BIA). [& para;] 2. Plaintiffs complaint arises out of plaintiffs alleged employment with BNSFs predecessor in interest, the Santa Fe Railroad, in Bakersfield. [¶] 3. Plaintiff was employed by the Santa Fe for a month and a half in 1964. [¶] 4. Plaintiff worked outdoors, driving a cart around the yard, filling up oil in journal boxes, hanging doors in boxcars, and loading ice onto the boxcars. [¶] 5. Plaintiff did not do any maintenance on cars and did not work on locomotives. [& para;] 6. Plaintiff did not work around any construction while employed by the Santa Fe. [¶] 7. Plaintiff did not do any pipefitting work while working for the Santa Fe. [¶] 8. While employed by the Santa Fe, plaintiff did not work at the back shops. [¶] 9. While employed by Santa Fe, plaintiff did not visit any roundhouses. [¶] 10. Plaintiff does not recall the names of any of his co-workers at the Santa Fe. [& para;] 11. Plaintiff does not know the witnesses listed in plaintiffs Supplemental Case Report and did not work with them at the Santa Fe." (Italics added.)
Kirklands opposition to summary judgment included the declaration of his expert, Kenneth Cohen, who opined, "Based on my background, experience and training, and the materials which I have reviewed . . ., the dry cloth like mops that [plaintiff] worked in close proximity to would more likely than not have contained asbestos, during the period of time and prior to the period of time, when [plaintiff] worked at the railroad." In reply, BNSF submitted the declaration of its expert, Larry Liukonen. Liukonen stated, "I have been advised that Mr. Kirkland worked for the Santa Fe Railroad in 1964 for six weeks as an oiler. His job was to add oil to friction bearing journal boxes and to add ice to boxcars. I am very familiar with friction bearing journal boxes and the products used in them. I have reviewed railroad purchase documents, manufacturers literature and sworn testimony. I have found no evidence whatever that friction bearing fabric contained any asbestos. I have personally inspected friction bearing fabric and found no indication of any asbestos-containing material." Liukonen concluded, "I am of the opinion that Mr. Kirkland did not work with or receive any exposure to asbestos during his brief railroad employment."
At the hearing on the summary judgment motion, the trial court concluded the Cohen declaration, like the product identification by Kirklands five witnesses, "doesnt establish anything." In granting summary judgment against Kirkland, the court noted, "I just basically dont find that you presented any evidence to support the claim that [plaintiff] was exposed to asbestos on this job." The court granted BNSFs motion and subsequently entered a final judgment against Kirkland. He now appeals.
II
DISCUSSION
A. Summary Judgment Principles
Because a motion for summary judgment raises only questions of law, the trial courts decision is subject to de novo review on appeal. (Perkins v. Howard (1991) 232 Cal.App.3d 708, 712 (Perkins).) Summary judgment should be granted if the moving party "would prevail at trial without submission of any issue of material fact to a trier of fact for determination . . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 (Aguilar).) In other words, where there are no disputed factual issues, there is no need for a trial; summary judgment thus "provide[s] courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Id. at p. 844.)
A defendants motion for summary judgment must respond to the allegations raised by the plaintiffs complaint. (Perkins, supra, 232 Cal.App.3d at p. 712.) After Aguilar, the defendant need not establish facts which "negate" the plaintiffs claims. (Aguilar, supra, 25 Cal.4th at pp. 853-854 [noting "`often impossibly high" burden of proving a negative].) Rather, the defendant must show that one or more elements of the plaintiffs cause of action cannot be established for lack of evidence, or the defendant may show the nonexistence of any disputed material fact regarding a defense to the plaintiffs claim. (Id. at p. 849.) If the former, the defendant must show not only "that the plaintiff does not possess needed evidence," but "must also show that the plaintiff cannot reasonably obtain needed evidence . . . ." (Id. at p. 854.) Unlike federal law, state law "continues to require a defendant moving for summary judgment to present evidence, and not simply point out[fn. omitted] that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Ibid.)
Throughout the summary judgment process, the moving party bears the burden of persuasion that there are no triable issues of material fact and it is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850.) The moving party also "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." (Ibid.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.) "`In the trial court, once a moving defendant has "shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established," the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff "may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . ." [Citations.] [Citation.]" (Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35-36.) On appeal, as below, the evidence is viewed in the light most favorable to the party opposing summary judgment, and any doubts are resolved against granting the motion. (Ogborn v. City of Lancaster (2002) 101 Cal.App.4th 448, 457 (Ogborn).)
B. BNSF Failed to Shift the Burden of Producing Evidence to Plaintiff
Turning to the complaint, the first step of our analysis shows Kirkland alleged he was negligently exposed to asbestos "on and around locomotives." (Italics added.) These allegations, regarding exposure both on and around locomotives, required a response from BNSF. An exhibit referenced in the complaint specifically alerted BNSF that by "around locomotives" Kirkland meant his exposure occurred while "driving a cart" and "filling oil in journal boxes." BNSFs separate statement, however, addressed only the allegation of exposure from working "on" locomotives, not "around" them. Stripped of surplussage, BNSFs separate statement merely claimed: "5. Plaintiff . . . did not work on locomotives." (Italics added.) None of BNSFs other facts addressed Kirklands claim he was exposed to asbestos working around locomotives, specifically in the course of driving a cart and oiling the journals. Thus, a "factual basis for relief . . . contemplated by the opponents pleading" (Perkins, supra, 232 Cal.App.3d at p. 712) remained.
True, Liukonen opined that the journals did not contain asbestos, but due process precludes summary judgment based on facts raised in a reply. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 (San Diego Watercrafts) ["Here, the evidence not only was omitted from the separate statement, it also was not filed until after assignee had responded to the issues raised in the separate statement. In considering this evidence, the court violated assignees due process rights"]; see also Department of General Services v. Superior Court (1978) 85 Cal.App.3d 273, 284 ["because of the drastic nature of the remedy sought," summary judgment movant "is held to strict compliance with the procedural prerequisites"].) By failing to present any evidence regarding exposure "around" locomotives until its reply, BNSF failed to shift the burden of production to Kirkland. Summary judgment was thus improper.
C. Inapplicability of the Golden Rule of Summary Judgment
BNSF claims Kirklands acknowledgment he had no reason to believe he was exposed to asbestos while employed at SFR was sufficient to shift the burden of production. BNSF did not include the acknowledgment in its separate statement of facts. BNSF notes, however, that the trial court, in its order granting summary judgment, relied on Kirklands "deposition testimony that plaintiff was not exposed to asbestos during his employment with defendants predecessor in interest."
In support of its position that the court properly considered Kirklands testimony, BNSF points to an opinion from this division, San Diego Watercrafts, supra, 102 Cal.App.4th 308, rejecting stringent application of the so-called Golden Rule. The Golden Rule essentially provides: "`"if it is not set forth in the separate statement, it does not exist."" (Id. at p. 313.) In San Diego Watercrafts, based on permissive language of the summary judgment statute (Code Civ. Proc., § 437c, subd. (b)), this court held that "[w]hether to consider evidence not referenced in the moving partys separate statement rests with the sound discretion of the trial court . . . ." (San Diego Watercrafts, supra, 102 Cal.App.4th at p. 316.) Precedent in this division prior to San Diego Watercrafts did not apply the Golden Rule. (See Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 111 [holding trial court was required to consider all evidence in moving papers whether referenced in the separate statements or not; disagreed with by San Diego Watercrafts].)
BNSFs arguments do not carry the day. Even if Kirklands deposition statement is considered, it is not sufficient to shift the burden of production. Kirklands statement must be viewed in the light most favorable to him (Ogborn, supra, 101 Cal.App.4th at p. 457), especially where his counsel objected to it as speculative and lacking foundation. It was BNSFs burden to make a prima facie showing "that the plaintiff does not possess needed evidence" and "that the plaintiff cannot reasonably obtain needed evidence . . . ." (Aguilar, supra, 25 Cal.4th at p. 854.) In the proper light, Kirklands statement did neither. The statement did not constitute a repudiation or disavowal by Kirkland of his suit. It did not establish that he did not possess needed evidence, but only that such evidence would not be based on his own personal knowledge or expertise. The statement did not aver Kirkland could not reasonably obtain needed evidence from former SFR employees, an expert witness, or another source. To shift the burden of production, BNSF had to address the complaints claim Kirkland was exposed to asbestos while oiling the journals and driving a cart. BNSF did not do so until its reply, which was too late, and summary judgment should not have been granted.
III
DISPOSITION
The judgment of the trial court is reversed. No costs on appeal are awarded in this interim proceeding, but they may be assessed in the trial courts discretion in favor of the party ultimately prevailing.
WE CONCUR: BEDSWORTH, ACTING P. J. and IKOLA, J. --------------- Notes: Kirklands claim under the BIA, according to his complaint, was for failure to "install, remove, repair, and maintain safe materials and appliances to insulate and maintain the aforementioned steam pipes, boilers, and other equipment of the aforementioned locomotives in that the products they used released asbestos fibers and particles and other dangerous particles into the atmosphere where plaintiff carried out his duties . . . ."