Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
City & County of San Francisco Super. Ct. No. 427607
Swager, J.
Plaintiffs Gail Leong, Jaclyn Ong, and Jenna Ong (Leong) appeal the order of the trial court granting summary judgment in favor of defendant the Regents of the University of California (the Regents). The Regents appeals from the order denying its motion for attorney fees. We affirm both orders.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On December 23, 2003, Leong filed an action for survival/wrongful death and loss of consortium against the Regents, alleging it was liable for the death of her husband Kip Ong (decedent), who died of asbestos-related lung cancer in 2003. The complaint alleges that from 1979 to 1985 decedent was exposed to asbestos on the University of California at Berkeley campus (U.C. Berkeley) while working there as a carpenter for the firm of Mayta and Jensen. The complaint incorporates and alleges a cause of action against premises owners and contractors from counsel’s master complaint, previously authorized by the trial court’s general orders for complex asbestos-related litigation. This cause of action alleges, in part, that the Regents violated various asbestos safety regulations, including the National Emission Standards for Hazardous Air Pollutants (NESHAP), by failing to observe “required safeguards and precautions.”
I. First Motion for Summary Judgment
On May 6, 2005, the Regents filed their first motion for summary judgment. Relying on Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny, they argued that (1) as the hirer of an independent contractor they were not liable for decedent’s death, (2) there was no evidence creating a triable issue of fact as to whether the Regents exercised any control over the operative details of decedent’s work at U.C. Berkeley, and (3) there was no evidence creating a triable issue of fact as to whether the Regents affirmatively increased decedent’s risk of injury. In their statement of undisputed facts, the Regents relied primarily on the October 18, 2004 deposition testimony of Wilson Yip, decedent’s former coworker.
See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664 (Kinsman) and cases cited therein. These cases have defined and limited the circumstances in which an independent contractor’s employee may recover in tort from the party hiring the contractor.
On July 8, 2005, Leong filed her opposition to the motion for summary judgment. Leong essentially conceded that her lawsuit was based solely on the Regents’ alleged violation of their duties under NESHAP, and not on whether the Regents exercised control over decedent’s work or affirmatively contributed to his injury by supplying any tools, materials, or instruction. In particular, Leong argued that under NESHAP the Regents were required to have inspected buildings for asbestos, informed contractors of the presence of asbestos, and ensured that contractors took measures to minimize asbestos emissions.
On July 18, 2005, the Regents filed their reply to Leong’s opposition. The Regents argued that (1) there was no evidence NESHAP was in effect at the time decedent worked at U.C. Berkeley, (2) there was no evidence of any violation of the specific provisions of the statute, and (3) there was no evidence that any alleged violation affirmatively contributed to decedent’s injuries.
On July 20, 2005, the Regents filed a supplemental objection to Leong’s evidence, claiming NESHAP does not support a private cause of action in state court and that Leong had not satisfied the requirements of Evidence Code section 669 because she failed to demonstrate decedent’s injury resulted from an occurrence the nature of which the statute was designed to prevent, or that he was among the class of persons that the statute was designed to protect.
Evidence Code section 669, discussed in greater detail below, provides that a presumption of negligence (negligence per se) arises from a tortfeasor’s failure to exercise due care in violation of a statute designed to protect a class of persons, of which the injured party is a member, from the type of injury sustained.
On July 22, 2005, the trial court denied the motion for summary judgment, stating simply “The Court finds that defendant failed to meet its burden on summary judgment.”
II. Second Motion For Summary Judgment
On November 4, 2005, the Regents filed a second motion for summary judgment. The motion raised the same arguments as in the first motion, with the additional arguments that (1) NESHAP has no application to the work performed by decedent and (2) there were no triable issues of material fact as to whether the Regents had violated any statutory regulations, including NESHAP. The motion was supported by a declaration from Tim Hassler, an asbestos safety coordinator who was employed by U.C. Berkeley during the time decedent worked there. His declaration, dated October 1, 2005, states he had no knowledge that any statutes or regulations pertaining to asbestos removal were violated during the relevant time period.
On January 13, 2006, Leong filed her opposition. Leong argued that the trial court’s order denying the first summary judgment motion barred the Regents from filing a second summary judgment motion. She also argued there were triable issues of fact as to whether duties under NESHAP had been triggered, citing to evidence that decedent removed asbestos-containing insulation from 1,200 to 1,500 feet of steam pipes, and asbestos-containing acoustical material from 8,000 to 10,000 square feet of ceilings. Citing to Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281 (Barclay), she argued this evidence was sufficient to create a triable issue of fact as to whether the Regents could be held liable for decedent’s death.
The appellate court in Barclay held that a hirer of an independent contractor may be liable if its breach of regulatory duties, owed to the plaintiff, affirmatively contributed to the plaintiff’s injuries. (Barclay, supra, 129 Cal.App.4th 281, 298.)
Leong’s opposition was accompanied by a declaration from Mr. Yip, dated December 7, 2005. He indicated he had recently visited U.C. Berkeley and now remembered that he and decedent had removed 30 radiators from a gymnasium, including 40 to 50 feet of insulated pipe per radiator. She also included a new declaration from Mr. Charles Ay, an expert witness. Mr. Ay opined that the pipe insulation and “popcorn” ceiling materials removed by decedent and Mr. Yip contained asbestos.
On January 17, 2006, the Regents filed their reply brief to Leong’s opposition and objections to the evidence offered in support of her opposition. The Regents asserted again that NESHAP does not authorize a private right of action for personal injury. They also argued NESHAP is intended to protect persons breathing outside air, not the air inside buildings. Therefore, decedent was not a member of the class of persons NESHAP was designed to protect and the regulations could not be used to show that the Regents owed him a duty of care. Finally, the Regents argued that even if NESHAP does apply to indoor air, Leong had not demonstrated that decedent’s work at U.C. Berkeley triggered the regulations.
On January 24, 2006, Leong filed a supplemental opposition to the Regents motion for summary judgment, apparently in response to the trial court’s tentative ruling. She addressed the recent case of Kinsman, supra, 37 Cal.4th 659, which had been discussed in the Regent’s reply brief. She did not address the argument made in the Regents’ reply brief concerning the applicability of NESHAP.
On February 10, 2006, the Regents’ motion was assigned to a new trial judge after Leong successfully challenged the original judge under Code of Civil Procedure section 170.6.
On April 18, 2006, the Regents moved for attorney fees under Code of Civil Procedure section 1038. The trial court granted the Regents’ summary judgment motion on May 15, 2006, and dismissed Leong’s claims with prejudice. On June 9, 2006, the court denied the Regents’ motion for attorney fees. This appeal and cross-appeal followed.
DISCUSSION
I. Summary Judgment Standards
The purpose and process of summary judgment proceedings are well established. They provide courts with a mechanism to cut through the parties’ pleadings to determine whether, despite their allegations, a trial of fact is necessary to resolve the dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant may move for summary judgment “if it is contended that the action has no merit . . . .” (Code Civ. Proc., § 437c, subd. (a).) “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, 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 that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id. subd. (p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Id. subd. (c).)
“We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) “In undertaking our independent review of the evidence submitted, we apply ‘ “the same three-step process required of the trial court: First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claims and justify a judgment in movant’s favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]” ’ [Citation.]” (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 392.)
II. The Trial Court Properly Considered The Second Summary Judgment Motion
We begin by addressing several procedural issues raised by Leong. She first claims that the second trial judge impermissibly overruled the first trial judge when it granted the Regents’ second motion for summary judgment. “Generally, one trial judge may not review the ruling of another trial judge because the superior court, although comprised of many judges, is a single court.” (Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 425–426.) This general rule, however, does not apply if the first judge is unavailable, a circumstance that includes cases in which the judge has been disqualified. (Id. at p. 426.) In the present case, the first judge was unavailable to hear the Regents’ second motion, having been disqualified by Leong. Thus, the second judge was not barred from reviewing the second motion.
Relying on Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 380 (Kerns), Leong next claims that “The second judge could not treat the second motion as anything other than a motion for summary judgment that had already been heard and decided by another judge, and should not have considered it.” In Kerns, the trial court denied the defendant’s first motion for summary judgment. (Id. at p. 377.) The case was assigned to a different judge for trial, and the defendant filed a second motion for summary judgment that was a verbatim duplication of its earlier motion. The statement of undisputed facts was also identical to the statement it filed in connection with its first motion. (Id. at p. 378.) The appellate court held that the second judge was jurisdictionally barred from considering the renewed motion for summary judgment, because the motion was not filed in compliance with the requirements of Code of Civil Procedure section 1008. (Kerns, supra, at p. 391.)
Code of Civil Procedure section 1008 provides in part: “(b) A party who originally made an application for an order which was refused in whole or part . . . may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. . . . [¶] . . . [¶] (e) This section specifies the court’s jurisdiction . . . and applies to all applications to reconsider any order . . . or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (§ 1008, subds. (b) & (e).)
The present case is distinguishable from Kerns. While the second summary judgment motion did contain arguments that were raised in the first motion, the Regents also advanced new arguments aimed at undercutting Leong’s reliance on NESHAP. These new arguments were made in response to Leong’s opposition to the first motion for summary judgment. Additionally, while the Regents’ first motion was accompanied by a statement of 50 undisputed facts, the second statement recited 117 undisputed facts. The second motion was also accompanied by the new declaration from Mr. Hassler. Further, Leong’s opposition relied on new evidence in the form of a new declaration from Mr. Yip and the declaration of Mr. Ay. Thus, the second motion was not merely a duplicate of the first motion and the trial court did not err in considering it.
Leong also insists that Code of Civil Procedure sections 437c and 1008 barred consideration of the second motion. Section 437c, subdivision (f)(2), provides: “A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Italics added.) A party is not permitted to file a new motion for summary judgment unless that new motion satisfies the requirements of section 437c, subdivision (f)(2). (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1109 (Le Francois).) “[T]he prohibition against repeated summary judgment motions was added to make the summary judgment process more efficient and to reduce the opportunities for abuses of the procedure [citation] which the addition of subdivision (f)(2) accomplished by overruling the cases that had held that an order denying a motion for summary judgment did not preclude a renewal of the same motion at any time before trial.” (Bagley v. TRW, Inc., supra, 73 Cal.App.4th 1092, 1096, fn. 3.)
We confine our discussion to section 437c, subdivision (f)(2), as this provision specifically pertains to summary judgment motions. (See Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1096, fn. 3 [“Quite clearly, this case must be decided by the specific requirements of the summary judgment statute, not the general provisions of the reconsideration statute.”].)
Leong claims that the Regents second summary judgment motion runs afoul of Code of Civil Procedure 437c, subdivision (f)(2), because “[t]he Regents offered no new law or facts it became aware of after it filed its first motion, or any other explanation why it did not make a NESHAP argument earlier.” She relies, in large part, on Le Francios, supra. The present case, however, is distinguishable from Le Francios because in its opinion the Supreme Court assumed, without deciding, that the second summary judgment motion was based on the same law and evidence as the first motion. (Id. 35 Cal.4th 1094, 1099.) As we have already noted, the Regents’ second motion raised new legal issues and was based, in part, on new evidence in the form of Mr. Hassler’s declaration. Moreover, in her opposition, Leong also introduced new evidence in the form of two new declarations. And while NESHAP was not new law, it was law that the Regents would not reasonably have been expected to address when they filed their first motion for summary judgment.
In sum, the second motion was not merely a repackaged version of the first. As noted above, we have compared the separate statements of undisputed facts submitted in support of each of the Regents’ motions and find them to be significantly different. In fact, less than half of the proffered undisputed facts overlap. And while the Regents did repeat arguments presented in their first motion, the second motion was primarily directed at the inapplicability of NESHAP, an issue the prior motion did not raise. Given the uninformative nature of first judge’s order denying summary judgment, we cannot fault the Regents for including their earlier arguments in the second motion. Therefore, the motion was not barred by Code of Civil Procedure section 437c, subdivision (f)(2).
III. The Regents’ Reply Brief
In its order granting summary judgment, the trial judge found “Nothing clearly brings [decedent] into the class to be protected by NESHAP.” Leong claims the trial court should not have made this finding because it was based on an argument made for the first time in the Regents’ reply brief. She asserts the court violated her due process right “to have notice of the facts [she] had to rebut to avoid summary judgment.” The Regents concede that this particular argument was raised in their reply brief, but observe that Leong did not raise the due process issue in her supplemental opposition brief, which was filed one week after the reply brief was filed. The Regents also assert that Leong was not prejudiced by the error, if any, because the court did not rely on this finding in granting the Regents’ motion.
Preliminarily, we note the issue of decedent’s status under NESHAP was raised in the Regents’ supplemental objection filed in connection with their first summary judgment motion. In addition to arguing that NESHAP does not create a private cause of action, the Regents contended “Since plaintiff’s opposition sets forth no authority or admissible evidence that decedent’s injury resulted from an occurrence of the nature which the statue [sic] was designed to prevent or that decedent was of the class of persons for whose protection the statute was adopted, moving party objects to the application of the subject statute to this case and it’s [sic] admission into evidence in opposition to this defendant’s motion for summary judgment.” Thus, the Regents had raised the issue of the applicability of NESHAP before. We also note that Leong had the opportunity to address the Regents’ argument when she filed her supplemental opposition to the second motion.
In any event, the authority relied on by Leong is inapposite. She cites to San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308 for the proposition that “a trial court cannot consider arguments raised for the first time on reply.” In San Diego Watercrafts, the appellate court found that the trial court erred when it considered a new supplemental declaration submitted with the defendant’s reply papers because the plaintiff was deprived of notice as to the issues to be met to successfully oppose summary judgment. (Id. at p. 316.) Here, the Regents did not submit any new evidence with their reply. Rather, they raised purely legal arguments. Moreover, Leong was not deprived of the opportunity to oppose these arguments, as she did oppose another argument raised in the Regents’ reply brief when she filed her supplemental opposition. In sum, the trial court did not err in considering the Regents’ NESHAP arguments.
IV. The Merits Of The Summary Judgment Ruling
We now turn to the merits of Leong’s appeal. As noted above, her complaint against the Regents pleads a cause of action for premises liability. The allegations include: (1) that the Regents owned and controlled the premises where decedent worked, (2) that they caused decedent to be exposed to airborne asbestos fibers, (3) that they knew or should have known of the risk that decedent would be harmed thereby, (4) that they were under a nondelegable duty to maintain a safe premises and to warn of any dangerous conditions, (5) that they failed to comply with various state and federal statutes and regulations, including NESHAP, requiring them to prevent or reduce the inhalation of asbestos dust, (6) that decedent was a member of the class of persons whose safety was intended to be protected by these statutes and regulations, and (7) that decedent developed asbestos-related illness as a result of his asbestos exposure.
“ ‘A nondelegable duty is a definite affirmative duty the law imposes on one by reason of his or her relationship with others. One cannot escape this duty by entrusting it to an independent contractor.’ [Citation.] A nondelegable duty may arise when a statute or regulation requires specific safeguards or precautions to ensure others’ safety.” (Evard v. Southern California Edison (2007) 153 Cal.App.4th 137, 146.)
On appeal, Leong’s arguments focus solely on whether she may use NESHAP to prove that the Regents were negligent. She does not assert any other theory of liability against the Regents. In particular, she does not allege that the Regents retained control over the work done by Mayta and Jensen (see Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 200–202), that they concealed a hazardous condition (see Kinsman, supra, 37 Cal.4th 659, 674), or that they affirmatively contributed to decedent’s injury (see McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 222, 225.) Accordingly, our analysis of the merits will focus solely on NESHAP.
A. NESHAP
Section 112 of the Clean Air Act (CAA) (42 U.S.C. § 7412), authorizes the Administrator of the Environmental Protection Agency (EPA) to publish a list of hazardous air pollutants and to establish emission standards for them. These standards are known as “national emission standards for hazardous air pollutants,” or NESHAP’s.
Section 112(b), (42 U.S.C. § 7412(b)), establishes an initial statutory list of hazardous air pollutants, of which asbestos is one. Section 112(d), (42 U.S.C. § 7412(d)), directs the agency to promulgate NESHAP’s to regulate the emission of hazardous air pollutants from these source categories. These provisions are the primary means to regulate emissions of hazardous air pollutants under the CAA.
The EPA is authorized to adopt work practice standards instead of emission standards “if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a hazardous air pollutant . . . .” (42 U.S.C. § 7412(h)(1).) Because asbestos often is not “emitted through a conveyance designed and constructed to emit or capture [it],” (42 U.S.C. § 7412(h)(2)(A)), but rather through building demolition and renovation sites, the EPA adopted a work practice standard for handling asbestos in these sites. (Former 40 C.F.R. §§ 61.22, 61.23.) This work-practice standard does not apply generally to any building containing any asbestos, but only to buildings containing large amounts of certain specific kinds of asbestos. (Former 40 C.F.R. §§ 61.22(d), 61.25.) The relevant work-practice standard applies only to “friable asbestos material,” defined as “any material that contains more than 1 percent asbestos by weight and that can be crumbled, pulverized, or reduced to powder, when dry, by hand pressure.” (Former 40 C.F.R § 61.21(k).)
“For purposes of this section, if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a hazardous air pollutant or pollutants, the Administrator may, in lieu thereof, promulgate a . . . work practice . . . standard . . . which in the Administrator’s judgment is consistent with the provisions of subsection (d) or (f) of this section. . . .” (42 U.S.C. § 7412(h)(1).)
During the time period relevant to this appeal, the NESHAP regulations for asbestos were located in 40 Code of Federal Regulations part 61(B) (former 40 C.F.R. § 61.20 et seq.). These regulations have been amended and are now found in part 61(M) (40 C.F.R. § 61.140 et seq.).
This work-practice standard will apply to a demolition or renovation operation only if specified threshold quantities of friable asbestos materials are present. Specifically, the work practice standard applies to a renovation project only if more than 80 meters (ca. 260 ft.) of pipe covered or coated with friable asbestos material, or more than 15 square meters (ca. 160 sq. ft.) of friable asbestos material used to cover or coat any duct, boiler, or structural member, are stripped or removed. (Former 40 C.F.R § 61.22(d).)
The asbestos work-practice standard regulates, in detail, the handling of asbestos in building renovation sites. (Former 40 C.F.R. § 61.22(d).) For example, material containing asbestos must be wetted down at all stages of removal and disposal, and must be carefully lowered to ground level. (Ibid.)
B. Can Leong Use NESHAP to Establish Negligence Per Se?
Leong claims she demonstrated that the Regents violated NESHAP and that this violation supports a claim of negligence per se under Evidence Code section 669. Section 669 provides in part “(a) The failure of a person to exercise due care is presumed if: [¶] (1) He violated a statute, ordinance, or regulation of a public entity; [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” “ ‘ “While the first two elements are normally considered questions for the trier of fact, ‘[t]he last two elements are determined by the trial court as a matter of law, since they involve statutory interpretation . . . .’ ” [Citation.]’ [Citation.]” (Ramirez v. Nelson (2008) 44 Cal.4th 908, 918 (Ramirez).)
“ ‘[U]nder the negligence per se doctrine . . . “violation of a statute gives rise to a presumption of negligence in the absence of justification or excuse, provided that the ‘person suffering . . . the injury . . . was one of the class of persons for whose protection the statute . . . was adopted.’ ” [Citation.] In short, “for a statute . . . to be relevant to a determination of negligence, not only must the injury be a proximate result of the violation, but the plaintiff must be a member of the class of persons the statute . . . was designed to protect, and the harm must have been one the statute . . . was designed to prevent.” [Citation.] Consequently, if one is not within the protected class or the injury did not result from an occurrence of the nature which the transgressed statute was designed to prevent, Evidence Code section 669 has no application. [Citations.]’ [Citation.]” (Ramirez, supra, 44 Cal.4th 908, 918.)
Leong asserts that decedent’s death resulted from an occurrence of the nature which NESHAP was designed to prevent because the regulation is “designed to prevent the emission of asbestos into the air” and protect against the inhalation of asbestos fibers. As the Regents acknowledge, one of the CAA’s express purposes is “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” (42 U.S.C. § 7401(b)(1).) However, the Regents would limit NESHAP’s protection to “outside air,” noting that the regulation’s stated goal is to prevent “emissions of particulate asbestos material to outside air.” (See former 40 C.F.R. § 61.21(e).) Because the CAA is intended to protect against the inhalation of toxic emissions, the very occurrence that allegedly caused decedent’s death, we are not entirely inclined to accept the limitation proposed by the Regents.
Leong also claims decedent was a member of the class NESHAP is designed to protect, arguing that the regulations are intended to protect all citizens from the dangers posed by airborne asbestos regardless of whether their exposure occurs inside or outside a building undergoing renovation. The Regents counter that NESHAP is not a workplace safety statute. In support of their argument, they draw our attention to a Bay Area Air Quality Management District (BAAQMD) rule that states: “District Regulations are not intended to apply to the air quality requirements for the workroom atmosphere necessary to protect an employee’s health from contaminants emitted by the source; nor are they concerned with the occupational health factors in an employee-employer relationship.” (BAAQMD Reg. 1-105.) The Regents also cite to certain documents issued by the EPA indicating the agency’s understanding that the NESHAP “does not confer authority to regulate indoor exposures.”
In the nine Bay Area counties, enforcement of the asbestos NESHAP regulations, such as those regarding renovation and demolition, has been delegated by the EPA to the BAAQMD. (62 Fed.Reg. 19679 (Apr. 23, 1997).)
We granted the Regents’ request that we take judicial notice of these provisions.
While the Regents appear to have the better argument as to whether decedent was a member of the protected class, we need not decide whether NESHAP may be used as the foundation of a claim of negligence per se. In its ruling, the trial court assumed, without deciding, that the regulations could apply. While observing it was unclear as to whether decedent was a member of the class to be protected by NESHAP, the court found Leong had failed to demonstrate that the renovations decedent participated in were extensive enough to trigger the Regents’ duty to comply with these federal asbestos regulations. The court also found that she did not present sufficient evidence of the asbestos percentage by weight of the materials with which decedent came into contact.
We note that the current version of NESHAP does touch on the issue of worker safety: “[N]o [friable asbestos material] shall be stripped, removed, or otherwise handled or disturbed at a facility regulated by this section unless at least one on-site representative, . . . trained in the provisions of this regulation and the means of complying with them, is present. Every 2 years, the trained on-site individual shall receive refresher training in the provisions of this regulation. The required training shall include as a minimum: applicability; notifications; material identification; control procedures for removals including, at least, wetting, local exhaust ventilation, negative pressure enclosures, glove-bag procedures, and High Efficiency Particulate Air (HEPA) filters; waste disposal work practices; reporting and recordkeeping; and asbestos hazards and worker protection.” (40 C.F.R. § 61.145(c)(8) (2008), italics added.)
C. Was NESHAP Triggered By Decedent’s Work?
The Regents put forth evidence, in the form of Mr. Hassler’s declaration, that no statutory or regulatory violations occurred in connection with decedent’s work at U.C. Berkeley. Accordingly, to survive summary judgment Leong was required to set forth evidence creating a triable issue of fact as to the existence of a NESHAP violation. Specifically, in order to demonstrate that NESHAP was triggered, Leong would have had to show that decedent’s work involved the stripping or removal of more than 80 meters (ca. 260 ft.) of pipe covered or coated with friable asbestos material, or more than 15 square meters (ca. 160 sq. ft.) of friable asbestos material used to cover or coat any duct, boiler, or structural member. (Former 40 C.F.R. § 61.22(d).)
On appeal, Leong alleges that decedent “removed” asbestos-containing pipe insulation from a campus gymnasium. She relies on the evidence as set forth in Mr. Yip’s declaration dated December 7, 2005. In his declaration, Mr. Yip states that he and decedent worked in two equipment rooms located underneath a pool in the gymnasium. The rooms contained more than 500 linear feet of pipe covered with deteriorating insulation material. About half of the insulation had fallen from the pipes onto the floor. He and decedent swept the material into a pile for disposal. Mr. Yip also stated that he and decedent subsequently removed at least 30 radiators along with attached pipes from the same gymnasium. He estimated that they removed approximately 40 to 50 feet of insulated pipe per radiator.
Additionally, Leong offered Mr. Yip’s statement that he and decedent removed popcorn ceiling material from between 20 to 25 classrooms at approximately four campus locations. He stated that his supervisor told him that the ceiling materials contained asbestos. Leong states in her brief that the ceiling material contained asbestos, yet the trial court sustained the Regents’ objection to Mr. Yip’s statement, explicitly stating “there is no basis for the opinions . . . that [the] popcorn ceilings did contain asbestos.” The court also sustained the Regents’ objection to Mr. Ay’s declaration insofar as it alleged that the pipes involved in the radiator removal project were covered with a white chalky pipe covering, finding there was no factual basis for his opinion. Leong does not challenge the trial court’s evidentiary rulings. Thus, the only admissible evidence that decedent came into contact with any material containing asbestos was when he encountered the insulation material that had fallen on the floor in the rooms under the pool.
While the basis for the trial court’s ruling is not clearly stated, it appears that Mr. Yip, at a deposition conducted after his declaration was filed, stated that the radiator pipes were covered with white tape, and not with a chalky substance. The Regents cited to this deposition testimony in objecting to Mr. Ay’s declaration regarding the radiators.
NESHAP is triggered where more than 260 feet of pipe covered or coated with friable asbestos material “are stripped or removed.” There was no evidence that any of the pipes below the pool were stripped. Rather, the evidence supports the conclusion that the asbestos on the pipes had simply fallen to the floor due to deterioration. Nor was there any evidence that the insulation that had fallen to the floor was ever actually removed. The Regents successfully objected to the implication in Mr. Yip’s declaration that he and decedent had “cleaned up” 500 linear feet of asbestos-containing “pipe insulation,” arguing this statement was inconsistent with testimony he had provided earlier. In his earlier deposition testimony, Mr. Yip stated they had merely swept material into a pile so that he and decedent could snap chalk lines on the floor and take measurements. Moreover, Leong made no showing as to the asbestos content of the fallen insulation material. Thus, there was no evidence that the insulation consisted of “friable asbestos,” that is, material containing more than one percent of asbestos by weight.
NESHAP defines “stripping” as “taking off friable asbestos materials from any pipe, duct, boiler, tank, reactor, turbine, furnace, or structural member.” (Former 40 C.F.R. § 61.21(r).)
NESHAP defines “removing” as “taking out friable asbestos materials used on any pipe, duct, boiler, tank, reactor, turbine, furnace, or structural member from any building, structure, facility, or installation.” (Former 40 C.F.R. § 61.21(q).)
As noted above, to prove a claim of negligence per se, a plaintiff must show that a statute or regulation was violated and that the violation was a proximate cause of the claimed harm. (Evid. Code, § 669, subds. (a)(1) & (2).) These two elements “although normally questions of fact for the jury, may be resolved by the court as a matter of law where reasonable minds could not differ as to whether a violation of the regulation actually occurred or whether the violation proximately caused the plaintiff’s injuries.” (Traxler v. Varady (1993) 12 Cal.App.4th 1321, 1328.) Leong did not provide sufficient evidence to create a triable issue of fact as to whether NESHAP had been violated. As she did not present evidence to support any other basis for liability, we conclude that summary judgment was properly granted in favor of the Regents.
We do not reach the additional grounds proposed by the Regents for upholding the trial court’s decision.
V. The Regents’ Motion for Attorney Fees
After granting the Regents’ summary judgment motion, the trial court denied their motion for attorney fees brought under Code of Civil Procedure section 1038. The Regents have filed a cross-appeal contesting this ruling.
Code of Civil Procedure section 1038 provides, in relevant part: “(a) In any civil proceeding under the California Tort Claims Act . . ., the court, upon motion of the defendant . . ., shall, at the time of the granting of any summary judgment, . . . or at a later time . . . [,] determine whether or not the plaintiff . . . brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint . . . . If the court should determine that the proceeding was not brought in good faith and with reasonable cause . . . the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs . . . . [¶] (b) ‘Defense costs,’ as used in this section, shall include reasonable attorneys’ fees, expert witness fees, the expense of services of experts, advisers, and consultants in defense of the proceeding . . . .” The Regents do not claim Leong lacked good faith in bringing her lawsuit. Accordingly, we focus our inquiry on the element of reasonable cause.
“ ‘Reasonable cause is to be determined objectively, as a matter of law, on the basis of the facts known to the plaintiff when he or she filed or maintained the action. Once what the plaintiff (or his or her attorney) knew has been determined, or found to be undisputed, it is for the court to decide “ ‘whether any reasonable attorney would have thought the claim tenable . . . .’ ” [Citations.] Because the opinion of the hypothetical reasonable attorney is to be determined as a matter of law, reasonable cause is subject to de novo review on appeal.’ ” (Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 183 (Clark), quoting Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 932 (Knight).)
An award of defense costs under Code of Civil Procedure section 1038 has been allowed in cases where clear statutory immunity negates the liability of the public entity. An award was allowed in Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 854–855 (Kobzoff), where the county defendant was immune from liability for malpractice and negligence under Government Code section 856.2, which provides immunity for the injury or death of an escaping mental patient. In Salazar v. Upland Police Dept. (2004) 116 Cal.App.4th 934 (Salazar), an award of defense costs was upheld where the plaintiff claimed she had suffered a wrongful arrest, but she had stipulated in an earlier criminal action that the officer had probable cause to arrest her, and Penal Code section 836.5, subdivision (b) provided immunity where the arrest was made with probable cause. And in Knight, supra, 4 Cal.App.4th 918, the court upheld an award of costs because the city was immune from liability for negligently creating or failing to warn of a dangerous condition of public property pursuant to Government Code section 831.2, which provides immunity for any injury caused by a natural condition of public property.
The facts in the present case are not as egregious as the facts in the above cases. It is apparent that when she filed her action against the Regents, Leong knew decedent had worked at U.C. Berkeley for several years and that he had possibly been exposed to materials containing asbestos during that time. As demonstrated by our discussion above, the issue of NESHAP’s application was not as clear-cut as the statutory immunities asserted by the defendants in Kobzoff, Salazar, and Knight. “Reasonable lawyers can differ, some seeing as meritless suits which others believe have merit, and some seeing as totally and completely without merit suits which others see as only marginally meritless. Suits which all reasonable lawyers agree totally lack merit—that is, those which lack probable cause—are the least meritorious of all meritless suits. Only this subgroup of meritless suits present no probable cause.” (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 382 (Roberts).) We cannot say that all reasonable lawyers would agree Leong’s lawsuit was completely without merit.
Further, denial of a defendant’s summary judgment motion provides persuasive evidence that a suit does not totally lack merit. (Roberts, supra, 76 Cal.App.4th 375, 383.) A judge denies summary judgment if there is a “triable issue as to any material fact,” and the moving party is not “entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “These conclusions necessarily imply that the judge finds at least some merit in the claim. The claimant may win, if certain material facts are decided favorably. This finding (unless disregarded) compels conclusion that there is probable cause, because probable cause is lacking only in the total absence of merit.” (Roberts, supra, at p. 383.)
In Clark, supra, this court, relying on cases analogizing the requirement of “reasonable cause” to the element of “probable cause” in malicious prosecution cases, held that a plaintiff who had prevailed against a defendant’s first motion for summary judgment could not be found to have lacked reasonable cause for bringing and maintaining the claim, notwithstanding the fact that the same defendant’s second motion for summary judgment was later granted. (Clark, supra, 165 Cal.App.4th 150, 183–185.) The same situation obtains in the present case.
Because denial of summary judgment is a sound indicator of probable cause, it is sensible to accept it as establishing reasonable cause to defeat the motion for defense costs under Code of Civil Procedure section 1038. (See Roberts, supra, 76 Cal.App.4th 375, 384.) Doing so is consistent with the purpose of providing public entities with a protective remedy for defending against unmeritorious and frivolous litigation. (See Kobzoff, supra, 19 Cal.4th 851, 857.) In denying the Regents’ first motion for summary judgment, the trial court found that they had not met their burden on summary judgment. As we observed in Clark, “ ‘It would be a “ ‘hard law,’ ” indeed, that “ ‘would render a plaintiff liable in damages for instituting an action . . . in the event that, notwithstanding a judge of the superior court was satisfied that upon those facts the plaintiff had a meritorious case, a ruling to that effect should afterwards be set aside.’ ” ’ [Citations.]” (Clark, supra, 165 Cal.App.4th 150, 184–185.) While Leong’s claim was flawed, we cannot say that no reasonable attorney would have thought it tenable.
As we have determined on de novo review that Leong had reasonable cause to bring her action, we need not address the Regents’ claims that the trial court improperly shifted the burden of proof on them to prove a lack of reasonable cause.
DISPOSITION
The orders are affirmed. Each side will bear their own costs on appeal.
We concur: Marchiano, P. J., Margulies, J.