Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC06-449443
Kline, P.J.
INTRODUCTION
Plaintiffs Tommie Sparks, Sr. (Sparks) and his wife, Helen Sparks, appeal from a judgment entered by the San Francisco Superior Court in this asbestos-related personal injury action, following the court’s order granting summary judgment in favor of defendant and respondent Keenan Properties, Inc. (Keenan). Plaintiffs contend that the trial court erred in granting summary judgment in favor of Keenan, as follows: (1) Keenan did not meet its initial burden on summary judgment where it did not ask Sparks follow-up questions about his unloading of transite pipes Keenan supplied to his jobsites, and (2) the trial court erroneously engaged in interpretation of Sparks’s deposition testimony, where moving and opposition papers created an inference supporting a different interpretation and created a triable issue of fact. We shall conclude the trail court erred in granting summary judgment on this record.
STATEMENT OF THE CASE
On February 14, 2006, plaintiffs filed their “complaint for personal injury and loss of consortium-asbestos” against Keenan and numerous other defendants in the San Francisco Superior Court. Plaintiffs brought causes of action against Keenan for negligence, strict liability, false representation, intentional tort and loss of consortium. They alleged that transite pipe (asbestos-containing cement pipe) supplied by Keenan exposed Sparks to asbestos and that he contracted lung cancer as a result of that exposure. Plaintiffs sought and received preference in trial setting. On July 6, 2006, Keenan moved for summary judgment or, in the alternative, for summary adjudication as to each of the causes of action, filing its separate statement of undisputed material facts and supporting declaration and exhibits. Plaintiffs opposed the summary judgment motion and filed their own separate statement, declarations and exhibits in opposition. Keenan replied, filing a consolidated separate statement in support of its reply and filing responses and objections to plaintiffs’ separate statement.
On July 21, 2006, the trial court granted Keenan’s motion for summary judgment, finding that there was no triable issue of material fact concerning the causes of action alleged against Keenan, because plaintiffs had no evidence that Keenan exposed Sparks to any asbestos-containing product. The order granting the summary judgment motion was filed on July 21, 2006. Judgment was entered in favor of Keenan and against plaintiffs on August 21, 2006.
Plaintiffs moved for a new trial on shortened time, which Keenan opposed. On August 23, 2006, the trial court heard and denied plaintiffs’ new trial motion.
This timely appeal followed. On May 8, 2007, we granted plaintiffs’ motion for calendar preference.
STATEMENT OF FACTS
Keenan was a wholesale plumbing supply house that operated stores in various locations over different periods of time. Plaintiffs alleged that Sparks was exposed to asbestos from asbestos-containing cement pipe supplied or sold by Keenan during the time Sparks was employed as a pipefitter in Southern California from 1966 to 1984.
Defendant’s separate statement
Keenan’s separate statement of undisputed material facts set forth the following facts:
In their response to Keenan’s specially-prepared interrogatories dated June 23, 2006, plaintiffs “allege Keenan supplied W.W. Price & Co. with transite, or asbestos-cement pipe at Hughes Aircraft in El Segundo, California while [Sparks] worked there from 1966 to 1967, in response to Keenan’s ‘state all facts’ interrogatories.” “Plaintiffs also allege Keenan supplied Hood Corporation with transite, or asbestos-cement pipe, at Martin Luther King, Jr. General Hospital in Willowbrook, California while [Sparks] worked there from 1972 to 1973 . . . .” Sparks’s responses to defendant’s standard interrogatories (February 14, 2006) and his responses to Keenan’s form interrogatories (June 23, 2006) failed to mention Keenan or to identify any particular Keenan-supplied product to which Sparks was exposed. “Plaintiff testified under oath during his deposition that the only pipe Keenan supplied to Hughes Aircraft was made of steel.” “Plaintiff testified that he could not recall Keenan supplying any other material to Hughes Aircraft.” “Plaintiff further testified that he did not work with any asbestos-cement pipe, nor was he around anyone else working with any asbestos-cement pipe at Hughes Aircraft.” “In response to repeated inquiry by his attorney for the identity of the suppliers of transite pipe and other materials he worked with, [Sparks] testified several times that they were supplied by the particular manufacturer.” “Plaintiff’s counsel and his client then took a break and went off the record.” “Upon returning from break, Plaintiff’s counsel once again asked Plaintiff who supplied the transite pipe with which he worked, to which [Sparks] conveniently identified Keenan.” “Upon cross-examination by defense counsel, [Sparks] admitted that he did not know who supplied the transite pipe to his employer, Hood Corporation, at Martin Luther King, Jr. General Hospital, and in fact, would be speculating if he testified Keenan supplied it.” “Martin Luther King, Jr. General Hospital is the only location where Plaintiff recalls working with or around transite.” Keenan set forth the same undisputed material facts in support of summary judgment/summary adjudication of the negligence, strict liability and loss of consortium causes of action.
As to the cause of action for false representation, Keenan set forth as undisputed material facts that plaintiffs had produced no evidence identifying any specific misrepresentation made by Keenan to plaintiffs or the public and no evidence that Sparks had relied upon any such misrepresentation or that his reliance caused him bodily injury. As to the intentional tort cause of action, Keenan asserted that plaintiffs had no evidence of the existence of any fiduciary or confidential relationship between Keenan and Sparks giving rise to a duty to disclose; no facts showing that Keenan intended to induce action by Sparks to his detriment by concealing or suppressing any material fact regarding asbestos; and no evidence that reliance on any alleged concealment of material fact caused Sparks’s illness.
Plaintiffs’ opposition to summary judgment
Plaintiffs opposed summary judgment, arguing that Keenan had not met its initial burden of production by showing facts negating plaintiffs’ claims and that plaintiffs had raised a triable issue of fact as to whether Sparks was exposed to asbestos for which Keenan was liable. Plaintiffs presented the following as disputed material facts:
Plaintiffs supported their opposition with declarations by Sparks and expert witness Charles Ay, and with citations to Sparks’s deposition testimony.
“On at least one job during his career as a pipefitter, [Sparks] installed asbestos cement ‘transite’ pipe which involved cutting and grinding the pipe.” “At various times during his career as a pipefitter . . ., [Sparks] helped to offload asbestos cement pipe from [Keenan] trucks.” Sparks “recognized that the trucks from which he offloaded asbestos cement pipe were from Keenan because their name was ‘all over the trucks.’ ” “He recalls that Keenan supplied asbestos cement pipe brand names Transite and Fluid-Tite to his jobsites.” Citing Sparks’s declaration supplied in opposition to the summary judgment motion, plaintiffs asserted as additional disputed material facts: “The pipes supplied by Keenan were often covered with dust and debris, and in the process of offloading the asbestos cement pipe, [Sparks] frequently wiped his bare hands or gloves onto his shirt and trousers to remove the dust and debris.” “The wiping created visible airborne dust that [Sparks] breathed.” Sparks “also clapped his gloves and clothing to remove the dust during or directly after offloading asbestos cement pipe, creating visible airborne dust that he breathed.” “While offloading the asbestos cement pipe from Keenan trucks, [Sparks] and his co-workers also stirred up debris from the asbestos cement pipes on the truck bed, creating visible airborne dust that [Sparks] breathed.”
Citing the declaration of plaintiffs’ proffered expert Charles Ay, a licensed asbestos consultant and certified asbestos abatement planner, in opposition to the summary judgment motion, plaintiffs further stated: “The asbestos cement pipe that [Sparks] offloaded from Keenan trucks contained asbestos.” “It is more likely than not that [Sparks’s] offloading the pipe resulted in his exposure to asbestos.”
Plaintiffs filed their response to Keenan’s separate statement of undisputed material facts, disputing Keenan’s “undisputed material facts” number 3, 4 and 7 relating to Sparks’s responses to defendant’s various interrogatories. Plaintiffs’ response to Keenan’s specially-prepared interrogatories stated that Sparks was exposed to various asbestos-containing products of Keenan “ ‘while working for various employers at various job sites, including, but not limited to [Hughes Aircraft] and [Martin Luther King, Jr. General Hospital]’ ” and “also ‘contends exposure to asbestos-containing pipes manufactured and/or supplied by Keenan at a number of yet unidentified residential and commercial job sites.’ ” (Italics added.) In addition, plaintiffs disputed that Sparks had failed to mention Keenan or to identify particular Keenan-supplied product to which Sparks was exposed in his responses to Keenan’s form interrogatories, by explaining that Sparks had incorporated by reference his concurrently-served responses to Keenan’s special interrogatories, which described his exposure to Keenan-supplied products, including transite pipe “at specific and yet-unidentified jobsites.”
Responding to Keenan’s undisputed material facts number 5 and 6 regarding Sparks’s asserted failure to mention Keenan in his responses to two sets of standard interrogatories, plaintiffs relied upon Sparks’s deposition testimony that he helped offload transite pipe supplied by Keenan from Keenan trucks on numerous occasions and knew the transite pipes were supplied by Keenan “because their name was ‘all over the trucks.’ ” Plaintiffs also relied on Sparks’s declaration detailing his contact with the dust and debris covering the asbestos cement pipe and his breathing in of that airborne dust.
Plaintiffs disputed that Sparks had testified that the only pipe Keenan supplied to Hughes Aircraft was made of steel, that he did not work with any asbestos-cement pipe, and that he was not around anyone else working with any asbestos-cement pipe at Hughes Aircraft. However, he admitted that he had “testified that he did not recall any pipe other than steel pipe at Hughes Aircraft facility” or working with or seeing anyone else working with such pipe there.
Plaintiffs disputed that Sparks had testified several times that suppliers of transite pipe and other materials with which he worked were supplied by the particular manufacturer. Rather, “[w]hen asked whether he knew the source or supplier of materials he used as a pipefitter, [Sparks] answered with the brand name of a chiller. When asked about his knowledge regarding the supplier of packing and gaskets that he installed, [Sparks] replied that gaskets were occasionally wired to the unit to be installed, and that he believed that the supplier of the gasket was the manufacturer of the unit.” Admitting that counsel and Sparks took a break and went off the record, plaintiffs pointed out that after returning from a break, plaintiffs’ counsel asked Sparks “for the first time where the transite pipe material with which he worked came from. [Sparks] identified Keenan, and explained that he was aware that Keenan was the supplier of transite pipe because he helped to offload the pipe from the truck and he saw the Keenan name all over the truck. [Sparks] further testified that he would see Keenan supplying materials to ‘various job sites quite often.’ ”
Plaintiffs did not dispute that Sparks had admitted that he did not know who supplied the transite pipe to his employer, Hood Corporation at Martin Luther King, Jr. General Hospital, and that he would be speculating if he testified that Keenan supplied it. Relying upon Sparks’s April 10, 2006 deposition and his declaration, plaintiffs disputed that Martin Luther King, Jr. General Hospital was the only location where Sparks recalled working with or around transite, stating that Sparks was exposed to asbestos from asbestos-cement pipe supplied by Keenan when he offloaded the pipe from the Keenan truck. Plaintiffs further explained that Sparks was asked at his deposition whether the job at Martin Luther King, Jr. General Hospital was the only occasion that he recalled “ ‘personally using transite’ ” and that he was then asked whether he could recall job sites where others were “ ‘using transite.’ ”
Plaintiffs set forth the same responses to defendant’s undisputed material facts on the causes of action for negligence, strict liability and loss of consortium causes of action.
As to the cause of action for false representation, plaintiffs also set forth the relevant part of their response to Keenan’s specially-prepared interrogatory numbers 22 and 24, seeking all facts and documents supporting plaintiffs’ contention that Keenan made a misrepresentation to plaintiff regarding asbestos-containing products, despite its knowledge of the risks resulting from exposure to asbestos, and that it supplied these products without warning plaintiff and others like him of the risk. Plaintiffs further asserted that Keenan had served no discovery specifically addressing the affirmative misrepresentation or intentional tort issues.
DISCUSSION
I. Standard of Review
The trial court properly grants summary judgment if the record establishes no triable issue as to any material fact and the moving party is entitled to summary judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “[T]he 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar); Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1437-1438 (Weber).) Until the moving party meets his or her initial burden of production, the opposing party has no obligation to establish anything. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468; but see San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315 .) Although the burden of production shifts, the moving party always bears the burden of persuasion. (Aguilar, at p. 850.) “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.” (Ibid.) We review the record de novo. (Id. at p. 860; Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100 (Andrews); Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67-68.)
“ ‘Because trial judges no longer exercise discretion in considering a summary judgment motion, application of the abuse of discretion standard is inappropriate. Under current law, summary judgment motions raise only questions of law regarding the construction and effect of the moving and opposing papers; and questions of law are subject to the independent standard of review.’ [Citations.]” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502-503 (Hamburg); accord, Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2006) ¶ 8:166, pp. 8-111 to 8-112, and cases there cited.)
“ ‘Appellate review of a summary judgment is limited to the facts shown in the supporting and opposing affidavits and those admitted and uncontested in the pleadings. In deference to the strong public policy favoring a trial on the merits, appellate courts are bound by the same principles governing the trial court’s determination: i.e., the moving party’s [Keenan’s] papers are strictly construed and the opposing party’s [plaintiffs’] papers are liberally construed. All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).’ [Citations.]” (Hamburg, supra, 116 Cal.App.4th at p. 502; accord, among others, Weber, supra, 143 Cal.App.4th at p. 1438 [“resolving any evidentiary doubts or ambiguities in plaintiff’s favor”]; Andrews, supra, 138 Cal.App.4th at p. 100; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Eisenberg et al., Civil Appeals & Writs, supra, ¶ 8:164, p. 8-110.)
On appeal, “[w]e apply the same three-step analysis required of the trial court. ‘ “ ‘First, we identify the issues framed 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 claim 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.]” (Hamburg, supra, 116 Cal.App.4th at p. 503; accord, Knight v. Hayward Unified School Dist., supra, 132 Cal.App.4th at p. 128.)
II. Triable Issue of Fact as to Sparks’s Exposure to Keenan-Supplied Transite Pipe
Plaintiffs contend on appeal that the trial court erred in granting summary judgment/summary adjudication on their negligence, strict liability, and loss of consortium causes of action against Keenan. Applying the three-step procedure described above, we first identify the issues raised by the pleadings. Plaintiffs’ complaint alleges that products supplied by Keenan exposed Sparks to asbestos and that he contracted lung cancer as a result of that exposure. Causation is an essential element of these causes of action.
Plaintiffs do not challenge the trial court’s grant of summary adjudication of their causes of action for false representation and intentional tort.
A. Defendant’s prima facie burden of production
Second, we determine whether defendant has established facts that negate plaintiffs’ claims or show that one or more elements of plaintiffs’ claims cannot be established. The trial court found that there was no triable issue of material fact as follows: “Plaintiffs have no evidence that Keenan exposed [Sparks] to any asbestos-containing product. . . . No causal connection exists between [Sparks’s] illness and any Keenan conduct.” Because Keenan had no liability to plaintiffs for Sparks’s injury, plaintiffs’ claims for negligence, strict liability and loss of consortium failed.
Plaintiffs contend that the trial court erroneously determined that Keenan had met its prima facie burden of producing evidence showing that plaintiffs do not possess or cannot reasonably obtain evidence of causation.
Keenan relies upon Sparks’s interrogatory responses and deposition testimony as evidence that Sparks admitted that he was only exposed to asbestos-containing products at Martin Luther King, Jr. General Hospital and that he did not know the name of the supplier of those products.
In Andrews, supra, 138 Cal.App.4th 96, we addressed the question whether the plaintiff’s nonresponsive answers to comprehensive discovery were sufficient to meet the defendant’s burden of production when the defendant moves for summary judgment. We concluded that the discovery propounded by the defendant was sufficiently comprehensive and the responses to it 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.) We therefore concluded that the defendant had met its initial burden of presenting evidence sufficient to make a prima facie showing that a triable issue of fact did not exist regarding causation and the burden of production shifted to plaintiffs to establish a triable issue of fact regarding causation. (Ibid.) “When defendants conduct comprehensive discovery, plaintiffs cannot play ‘hide the ball.’ ” (Id. at p. 106.) If the 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 [the plaintiffs] once defendants move for summary judgment and properly present plaintiffs’ factually devoid discovery responses.” (Id. at p. 107, fn. omitted.)
Plaintiffs rely upon two asbestos cases, Weber, supra, 143 Cal.App.4th 1433 and Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64 (Scheiding), in opposition.
In Weber, Division One of this court held that evidence of the plaintiff’s deposition testimony that “he did not recall the defendant’s name and did not recall whether he worked with any product bearing the defendant’s name,” without more, did not meet “[the] defendant’s initial burden of producing evidence that [the] plaintiff does not possess, and cannot reasonably obtain, evidence [the] defendant was a cause of [the] plaintiff’s injuries, so that the burden shifts to [the] plaintiff to show a triable issue of fact exists as to causation.” (Weber, supra, 143 Cal.App.4th at p. 1435.) “That Weber was unable to recall whether he worked around [defendant’s] product over 40 years ago suggests only that plaintiffs will not be able to prove their case with Weber’s deposition testimony.” (Id. at p. 1439.) The defendant did not provide evidence that the plaintiffs had “failed to provide meaningful responses to comprehensive interrogatories designed to elicit all the evidence plaintiffs had to support their contention of liability.” (Id. at p. 1442.)
In Scheiding, supra, 69 Cal.App.4th 64, we concluded that summary judgment was improperly granted when the only support for the motion was a declaration from counsel that the plaintiffs did not mention the contractor defendant in discovery. (Id. at p. 67.) The husband and wife plaintiffs had brought an action against hundreds of defendants and one defendant moved for summary judgment based on the plaintiffs’ inability to prove causation. (Ibid.) However, no defendant had asked the plaintiff husband during his deposition, whether he had worked at any jobsite where the general contractor was present. (Ibid.) We concluded that “it would be unreasonable to infer from this record that [husband and wife] can produce no other evidence to link [the defendant] to [the husband’s] illness.” (Id. at p. 81.) We held that we could not infer anything when questions were neither asked nor answered. (Ibid.)
Here, unlike Scheiding and Weber, and like Andrews, defendants did propound comprehensive interrogatories, including Keenan’s specially-prepared interrogatories, requesting that Sparks “state all facts” “for each instance” in which Sparks contended he was “exposed to asbestos fiber from any product manufactured, sold, supplied, distributed and/or otherwise put into the stream of commerce by Keenan.” (See Scheiding, supra, 69 Cal.App.4th at p. 81; Weber, supra, 143 Cal.App.4th at p. 1441.) However, unlike Andrews, supra, 138 Cal.App.4th 96, plaintiffs here provided more than boilerplate responses to the interrogatories. Although failing to mention Keenan or its products in its response to some of defendant’s standard interrogatories, Sparks did identify his claimed exposures to asbestos products supplied by Keenan in his response to Keenan’s special interrogatory number 2, and incorporated that response into his response to Keenan’s form interrogatories. Sparks stated in response to the special interrogatory that he was exposed to asbestos-containing products supplied by defendant Keenan “while working for various employers at various job sites, including, but not limited to” Hughes Aircraft from 1966 to 1967 and Martin Luther King, Jr. General Hospital from 1972 to 1973. He identified these products as “transite and/or asbestos-containing pipe” and further contended that he was exposed to asbestos-containing pipes manufactured and/or supplied by Keenan at a number of yet unidentified residential and commercial job sites.” (Italics added.) Clearly the interrogatory responses did not limit Sparks’s claim that he was exposed to asbestos from Keenan products to the Hughes Aircraft and Martin Luther King, Jr. General Hospital jobsites.
Plaintiffs’ responses to defendant’s specially-prepared interrogatories, set one, stated: “Keenan . . . caused plaintiff to be exposed to asbestos. . . . [Plaintiff] contends exposure to various asbestos-containing products distributed, sold, supplied and otherwise placed into commerce by defendant Keenan while working for various employers at various job sites, including, but not limited to, the following employers at the indicated sites during the indicated years: W.W. Price & Co. at Hughes Aircraft in El Segundo, California from 1966 to 1967, and Hood Corporation at Martin Luther King, Jr. General Hospital in Willowbrook, California from 1972 to 1973. During this time, Plaintiff contends that defendant Keenan supplied Plaintiff’s jobsites and employers with asbestos-containing products, to wit: transite and/or asbestos-containing pipe. Plaintiff contends he was exposed to asbestos both through his own work with Keenan asbestos-containing pipe and that of others working near to him with the same asbestos-containing products. At these sites, Plaintiff’s work, and the work of others near to him, entailed disturbing, cutting, abrading, sanding, grinding, dusting-off and/or otherwise handling asbestos-containing pipe, including pipe manufactured and/or supplied by Keenan, causing substantial amounts of asbestos dust, residue, fiber and particulate to be released into the ambient air, which Plaintiff then breathed, causing his exposure to asbestos and resulting in his asbestos-related diseases.
We cannot say that Sparks’s responses to the interrogatories were “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.” (Andrews, supra, 138 Cal.App.4th at p. 107.)
The question, then, becomes whether these interrogatory responses, when taken together with Sparks’s admissions during his deposition testimony, could lead to the inference that plaintiffs could not prove causation so as to shift the burden to plaintiffs.
On April 10, 2006, Sparks testified that he recalled working with transite pipe while employed by Hood Corporation to work on the hospital. He discussed cutting the lengths of pipe, using a grinder to finish the pipe, and breathing in the dust created by cutting and grinding the pipe. He testified: “I think that was about—about the bulk of my transite, you know. [¶] . . . [¶] I only recall working on that—that one project. Again, that was a hospital.” When asked, “[w]hen you were on that project when you were working with transite pipe materials, did you ever work around others who were doing that work as well?” Sparks responded, “Oh, I’ve worked around it before, yeah. I’ve been in that crew, in the transite crew, yeah.” Asked whether he was “thinking of a specific occasion when you personally did hands-on work with transite,” Sparks responded “Right. Uh-huh” and agreed there were other occasions where he worked around others who were working with transite.
The deposition continued as follows:
“BY MR. NEUMANN [plaintiffs’ attorney]:
“Q. Now, Mr. Sparks, we’ve talked a bit about the materials that you personally used as a pipefitter. Do you know the source or the supplier of any of the materials you worked with during your career?
“[Objections.]
“THE WITNESS: Yeah.
“BY MR. NEUMANN:
“Q. What do you recall in terms of the supplier?
“A. Well, again, this depended on the project that you were assigned to. I’ve set chillers, York. Another name—brand name . . .
“[Objection.]
“THE WITNESS: Basically, yeah, depending on the project that—it would happen occasionally, yeah.
“BY MR. NEUMANN:
“Q. Let me ask you again a different way. You talked about personally performing work involving valves and gaskets and packing. Do you know where any of the valves that you installed or the packing you installed or the gaskets you installed came from in terms of a supplier?
“[Objections.]
“A. Sometimes there would—there would—if you didn’t have a warehouse to go draw your stuff, sometimes you would—they would wire a gasket to the unit itself. And it had to be, I think at that time, the manufacturer’s type gasket, whatever they called for, like their speculation—or their specs. So it would have to be of their—of their choice.
“Q. Okay. And then in terms of where the warehouse—where you ultimately got the product from, obtained the products, do you know who supplied materials to the warehouse?
“A. It would have been that manufacturer, whoever is manufacturing that specific item.
“[Objections.]
“THE WITNESS: Because if they called for a particular-type gasket, then that would be the one you had to use on that system.
“BY MR. NEUMANN:
“Q. Okay. Are you doing okay, Mr. Sparks?
“A. Yeah, I’m doing fine.
“Q. Do you want to take a short break?
“A. If—if nobody else has a problem with it, yeah.
“MR. NEUMANN: Okay. Why don’t we go off the record. It’s 11:31. Let’s take a ten minute break here.
(Recess was taken from 11:28 to 11:41.)
“MR. NEUMANN: All right. The time is 11:44. We took a brief break and we’re back on the record.
“BY MR. NEUMANN:
“Q. Mr. Sparks, before we took our break, I was asking you about where some of the materials you worked with came from. Do you know where any of the transite pipe materials you worked with came from?
“[Objections.]
“BY MR. NEUMANN:
“Q. And you can go ahead and answer if you know.
“A. I know they bought a lot from Keenan Pipe & Supply. Probably largely was—was that—was the contractor was Keenan—or the—or the supplier, I mean.
“[Objection.]
“BY MR. NEUMANN:
“Q. What about Keenan Pipe and Supply leads you to believe that they were the supplier of transite pipe materials?
“A. Well, because I—sometimes I—I’d help offload the load when—whatever they brought in on the job site.
“Q. So you would sometimes help offload transite pipe?
“A. Uh-huh. Yeah.
“[Objection.]
“BY MR. NEUMANN:
“Q. What about that offloading work led you to believe that the transite pipe materials were supplied by Keenan?
“[Objection.]
“THE WITNESS: Because they had their names all over the trucks.
“BY MR. NEUMANN:
“Q. Okay. Now, do you know the brand or brands of transite pipe materials Keenan was supplying to your job.
“[Objection.]
“BY MR. NEUMANN:
“Q. You can go ahead and answer.
“A. It was—transite I believe was—was a brand name. And the other was Fluid Tite, I believe.
“Q. Do you know whether during the course of your career Keenan Pipe & Supply supplied other materials that you worked with other than transite?
“A. Oh, yes.”
“[Objections.]
“BY MR. NEUMANN:
“Q. What leads you to believe that?
“[Objection.]
“A. I would see them on various job sites quite often.” (Italics added.)
On April 11, 2006, Sparks testified that he did not recall any pipe other than steel pipe being supplied by Keenan to the Hughes Aircraft facility, nor could he recall working with or seeing anyone else working with any asbestos cement pipe at that facility.
On April 12, 2006, upon cross-examination by defense counsel, Sparks admitted that he did not know who supplied the transite pipe to his employer, Hood Corporation, at Martin Luther King, Jr. General Hospital, and that he would be “speculating if it was Keenan or not.”
“Q. Do you recall from where you obtained the [transite] material, on the job site or was it delivered?
On April 21, 2006, Sparks testified on cross-examination by counsel for Keenan as follows:
“EXAMINATION BY DREW BURFORD [defendant’s attorney]:
“Q. Drew Buford again. Other than that occasion that we spoke about in 1982 at the Martin Luther King Hospital for Hood Corporation
“A. Yes, sir.
“Q. —are there any other job sites that you can recall working around others working with transite?
“A. That—or—meaning myself or anybody else that I can recall?
“Q. Well, no. Let me—I’ll back up. The occasion for Hood in 1972 at Martin Luther King was the only occasion that you can recall yourself personally using transite. Is that true?
“A. Yes, sir.
“Q. Okay. Setting that aside, are there any other job sites that you can recall where others were using transite?
“A. Not that I can recall.
“Q. Okay. Are you able to identify the supplier of any transite for any job where others were using that material?
“A. No, sir, I could not.
“Q. Okay. I’m here for a company called Keenan. Have you heard of Keenan?
“A. Keenan Pipe Supply, sure.
“Q. Are you able to tell me or identify any job site on which you worked or visited where Keenan supplied the materials?
“A. Yeah. I think they were a major supplier in L.A. there, Keenan.
“Q. I understand that.
“A. Yeah.
“Q. And that may be true.
“A. But for me personally to recall them, no, sir.
“Q. So as you sit here today, you’re not able to give me any particular employer or a particular job site at which you or for which you worked where Keenan supplied any material?
“A. No, sir, I could not.
“Q. Okay. And are you able to identify the type or types of materials that Keenan supplied to any job site you were on?
“A. Well, basically, again pipe and supplies, and that’s what Keenan did. That’s all I can say.
“Q. Okay. But a particular product to a particular job site, you wouldn’t be able to do?
“A. No sir.” (Italics added.)
From the foregoing deposition testimony, considered together with the interrogatory responses, Keenan argues that it shouldered its burden of producing evidence that plaintiffs would be unable to prove Sparks was ever exposed to a Keenan-supplied asbestos-containing product. Keenan reasons that the evidence demonstrated that the only site at which Sparks worked with asbestos-containing products was at the Martin Luther King, Jr. General Hospital project; that after initially identifying Keenan as the supplier of the transite pipe materials, Sparks admitted he did not know who supplied the transite pipes and would only be speculating to say it was Keenan.
This is one interpretation of the evidence presented. However, Sparks also testified that he had unloaded transite pipes from Keenan trucks, and had breathed the airborne dust from the pipes.
Plaintiffs argue that Keenan did not carry its prima facie burden of production, because it did not clarify or pursue questions regarding Sparks’s recollection of unloading of transite pipes from Keenan trucks and whether this occurred at Martin Luther King, Jr. General Hospital or elsewhere. Plaintiffs also contend that Sparks’s response to questions regarding his work at the hospital jobsite, wherein Sparks stated his inability to recall whether Keenan supplied transit pipe, was a response to questions regarding his personal use of or working with transite pipe, as distinct from his unloading of the pipe. Consequently, plaintiffs argue that this testimony did not eliminate Sparks having been exposed during his unloading of transit pipe from Keenan’s trucks at unspecified job sites.
On its face, the question of whether Keenan met its prima facie burden is a close one. It appears that Sparks retracted his previous identification of Keenan as the supplier of transite pipe to Martin Luther King, Jr. General Hospital and that the deposition questions were sufficiently broad to encompass any exposure to Keenan-supplied transite pipes.
However, there exists substantial ambiguity in Sparks’s responses, given Sparks’s testimony that he unloaded transite pipe from Keenan trucks and defense counsel’s failure to pursue this testimony, including defense counsel’s failure to ask specifically whether Sparks’s admissions that he did not know whether Keenan supplied the transite included that particular recollection or only Sparks’s testimony regarding his personal use of transite products.
Keenan argues that requiring it to ask such clarifying questions would force defendants to ask “an infinite number of questions to cover every possible activity that encompasses the activity of ‘working with’ or ‘using’ a material” and that “[t]he potential list of terms and subsequent questions would continue ad infinitum and ad nauseum, thereby effectively diluting the very purpose and goal of facilitating meaningful discovery prior to trial by purposefully thwarting the deposition process.” Such a concern does not appear valid here, where Sparks testified that he unloaded transite from Keenan trucks, but Keenan failed to follow up on that specific testimony to clarify whether Sparks understood that activity to be “working with” transite (as distinguished from his testimony regarding cutting and grinding transite at Martin Luther King, Jr. General Hospital) and where defense counsel also failed to clarify whether the unloading of transite occurred over the course of Sparks’s career at various jobsites or whether the activity was only at Martin Luther King, Jr. General Hospital, such that Sparks’s inability to identify the transite supplier was a retraction of that specific testimony.
In light of the standard of review we must apply to summary judgments, we cannot conclude that Keenan satisfied its burden of producing evidence that plaintiffs cannot prove causation, thereby shifting the burden to plaintiffs to show the existence of a triable issue of fact. (Code Civ. Proc., § 437c, subd. (p)(2); see generally Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17.)
B. Plaintiffs’ opposition showed a triable issue of material fact
Moreover, were we to conclude that Keenan had succeeded in making its prima facie showing, we would conclude that plaintiffs’ opposition, including Sparks’s declaration, demonstrates the existence of a triable issue of material fact as to whether Sparks was exposed to asbestos from a Keenan-supplied product, when he unloaded transite pipe from Keenan trucks at one or more jobsites.
In the trial court, Keenan objected to Sparks’s declaration and argued that the declaration could not be considered because it was contrary to Sparks’s previous admissions against interest justifying summary judgment. Keenan relied below on AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061 (AARTS), which recognized that “[a] court generally cannot resolve questions about a declarant’s credibility in a summary judgment proceeding [citations], unless admissions against interest have been made which justify disregard of any dissimulation.” (Id. at p. 1065, italics added, citing Gray v. Reeves (1977) 76 Cal.App.3d 567, 573-474; see also Magnolia Square Homeowners Assn. v. Safeco Inc. Co. (1990)221 Cal.App.3d 1049, 1062-1063.) However, Keenan does not so argue on this appeal and does not cite to AARTS or Gray in its briefing, doubtless because the trial court did not rule on the objection and there is no indication in the record before us that the court did not consider Sparks’s declaration in ruling on summary judgment. In any event, it is well established that “[e]ach declaration is normally accepted as true in determining whether there are triable issues of fact. The court generally cannot resolve questions of credibility in a summary judgment proceeding . . . .” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:272.10, p. 10-111; AARTS, supra, 179 Cal.App.3d at p. 1065.)
“ ‘In deference to the strong public policy favoring a trial on the merits’ ” (Hamburg, supra, 116 Cal.App.4th at p. 502), and in light of the standard of review we must apply on appeal, strictly construing Keenan’s moving papers, liberally construing plaintiffs’ papers in opposition to summary judgment, and resolving all doubts in favor of plaintiffs, we must conclude that plaintiffs have demonstrated the existence of a triable, material factual issue with respect to whether Sparks was exposed to asbestos-containing transite pipe supplied by Keenan. (Id. at pp. 502-503.)
III. Other Issues
A. Exposure as a “substantial factor” in causing Sparks’s illness
Keenan next contends that, even assuming Keenan had supplied the transite pipe at Martin Luther King, Jr. General Hospital, plaintiffs have failed to produce any evidence of their ability to prove to a reasonable medical probability that such exposure was a “substantial factor” in Sparks’s injuries. (See McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105 (McGonnell); Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416-1417 (Lineaweaver).)
“To ultimately prevail in their underlying claim, plaintiffs would need to establish that [Sparks’s] exposure to a product attributable to [Keenan] was to a reasonable medical probability a substantial factor in contributing to any asbestos-related disease suffered by him, pursuant to the standard of proof articulated in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 974-977. (See also Lineaweaver[, supra, ] 31 Cal.App.4th 1409 [discussing the substantial factor test with regard to claims involving asbestosis].) Relevant considerations include the ‘[f]requency of exposure, regularity of exposure, and proximity of the asbestos product to plaintiff . . . although these considerations should not be determinative in every case. [Citation.] Additional factors may also be significant in individual cases, such as the type of asbestos product to which plaintiff was exposed, the type of injury suffered by the plaintiff, and other possible sources of plaintiff’s injury.’ ([Lineaweaver], supra, 31 Cal.App.4th at p. 1416.) ‘The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.’ (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 978.)” (Andrews, supra,138 Cal.App.4th at p. 102; see Weber, supra, 143 Cal.App.4th at p. 1438.)
In Andrews, supra, 138 Cal.App.4th at page108, we recognized that, despite the moving party’s stringent burden on summary judgment, “[t]he mere ‘possibility’ of exposure does not create a triable issue of fact. (McGonnell[, supra, ] 98 Cal.App.4th 1098, 1105, citing Aguilar, supra, 25 Cal.4th at p. 850.) ‘It is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.’ (Ibid.) Notably, ‘[p]laintiffs cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation or reasoning.’ (Id. at p. 1106.) ‘[A]n expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.’ (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.)” (Andrews, at p. 108.)
On appeal, Keenan again contends that because there was no evidence that Sparks was exposed to asbestos products supplied by Keenan, plaintiffs could not prove causation. Keenan further contends that even assuming Keenan had supplied the asbestos transite pipe at Martin Luther King, Jr. General Hospital, plaintiffs had produced no evidence that Sparks was actually exposed to asbestos fiber from them.
We have heretofore determined that plaintiffs raised a triable issue of material fact as to Sparks’s exposure to asbestos-containing products supplied by Keenan. Plaintiffs also produced evidence in opposition to summary judgment that Sparks was actually exposed to asbestos fibers during his unloading of transite pipe from Keenan trucks. Sparks detailed the nature of that exposure in his declaration, stating that the transite on the Keenan trucks was dusty and dirty, he removed the dust and dirt from his hands by wiping or clapping his hands or gloves on his clothing, such wiping created visible and airborne dust that he inhaled. In addition, the truck beds were littered with dust and debris from the asbestos pipe that was stirred up by Sparks and others offloading the pipe, creating visible airborne dust that he inhaled. Plaintiffs’ expert Ay testified, among other things, about the types of asbestos-containing materials used on industrial and commercial jobsites. Having reviewed Sparks’s deposition and declaration, Ay declared: “I can state with certainty that the asbestos cement ‘transite’ pipe delivered by [Keenan] contained asbestos, and it is more likely than not that the asbestos cement pipe that Keenan supplied and that [Sparks] handled while offloading it from the truck resulted in his exposure to asbestos.” Ay further opined, based on his experience and his knowledge of asbestos-containing products, “that all of the asbestos cement ‘transite’ pipe [Sparks] describes himself and others in his presence offloading, handling, cutting, and grinding contained asbestos.” He concluded that Sparks’s “offloading and handling asbestos cement pipe and the work of [Sparks] and others in his presence while offloading the asbestos cement pipe would have released a substantial amount of asbestos fiber, exposing everyone in the area including [Sparks].” Ay’s declaration set forth his qualifications to testify as an expert. He has been qualified to testify as an expert in over 100 asbestos-related cases in trial courts throughout California.
Finally, Keenan contends plaintiffs cannot show that such exposure was a “substantial factor” causing Sparks’s illness as plaintiffs have presented no evidence that in reasonable medical probability the exposure contributed to Sparks’s injury. (See Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 982.) Our careful review of Keenan’s motion for summary judgment, its separate statement of undisputed material facts, and the depositions, interrogatories and other supporting papers relied on therein convinces us that Keenan did not support this basis for summary judgment or summary adjudication in the trial court. Consequently, the burden did not shift to plaintiffs to prove a triable issue of material fact as to the substantial factor issue. (See Weber, supra, 143 Cal.App.4th at p. 1439; Scheiding, supra, 69 Cal.App.4th at p. 81.)
In moving for summary judgment below, Keenan asserted with respect to the negligence cause of action that plaintiffs had failed to establish a triable issue of fact as to causation because they had not identified any Keenan product that exposed Sparks to asbestos and because even if they could establish exposure, plaintiffs had no evidence that such exposure was a substantial factor contributing to Sparks’s illness. However, the statement of undisputed material facts accompanying this issue related only to the issue of Sparks’s exposure to a Keenan-supplied asbestos product and not to any separate and independent failure of plaintiffs to provide medical testimony that exposure to asbestos fibers was “to a reasonable medical probability a substantial factor in contributing to any asbestos-related disease suffered by him.” (Andrews, supra, 138 Cal.App.4th at p. 102.) Keenan did not attempt to show that, if Sparks had been exposed to such a product, plaintiffs nevertheless could not demonstrate that such exposure was a substantial factor in causing Sparks’s illness.
Keenan’s “substantial factor” argument appears to have been premised entirely upon its assertion that Sparks has “no evidence of actual exposure to any Keenan asbestos-containing products” and that therefore, plaintiffs’ expert “Ay, has no foundation for his conclusions.” As we have heretofore determined that plaintiffs raised a triable issue of material fact by evidence that Sparks’s unloading of transit pipe from a Keenan truck exposed him to dust from an asbestos product supplied by Keenan, the premise fails.
Consequently, Keenan did not meet its initial burden of producing evidence sufficient to make a prima facie showing that plaintiffs cannot establish causation. Therefore, plaintiffs were not required to produce evidence of their ability to prove to a reasonable medical probability that exposure to asbestos fibers from Keenan-supplied transite pipe was a “substantial factor” in Sparks’s injuries. (See Andrews, supra, 138 Cal.App.4th at p. 102.)
We concede our determination of this issue may seem hyper technical, as plaintiffs do not here and did not below point to any evidence that they could show Sparks’s exposure to Keenan-supplied products was to a reasonable medical probability a substantial factor in contributing to his disease. However, the moving party on summary judgment cannot impose upon the opposing party the responsibility to make an evidentiary showing not required by the motion actually filed. If the plaintiffs in fact lack medical evidence that Sparks’s exposure was a substantial factor in contributing to his asbestos-related disease, Keenan’s remedy may be to file another motion for summary judgment or summary adjudication based on such a showing.
B. Loss of Consortium Cause of Action
The cause of action for loss of consortium was derivative of the claims for the alleged wrongs against Sparks. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408-409.) The court erroneously granted summary judgment on plaintiffs’ causes of action for negligence and strict liability. Consequently, it also erred in granting summary judgment on the cause of action for loss of consortium insofar as it derived from these claims.
C. Causes of action for false representation and intentional tort
As we have noted, plaintiffs have not challenged the trial court’s grant of summary judgment/summary adjudication of their causes of action for false representation and intentional tort (ante, fn. 5). They have therefore waived any objection to the summary adjudication of these two claims in favor of Keenan. (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 9, fn. 1; Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Eisenberg et al., Civil Appeals & Writs, supra, ¶ 9.21, p. 9-6.)
CONCLUSION
The trial court erred in determining that plaintiffs had not and could not raise a triable issue of fact as to causation on their negligence and strict liability causes of action. Consequently, the trial court also erred in granting summary judgment/summary adjudication as to these causes of action and the derivative cause of action for loss of consortium. The court did not err in granting summary adjudication in favor of Keenan on plaintiffs’ causes of action for false representation and intentional tort.
DISPOSITION
The judgment is reversed and the matter remanded to the trial court for further proceedings in accordance with the views set forth herein. Plaintiffs are awarded their costs on this appeal.
I concur: Lambden, J.
Concurring and dissenting opinion of Haerle, J.
I concur in the majority’s opinion regarding the failure of Keenan to supply sufficient evidence that the transite pipe supplied by Keenan to one or more jobsites on which appellant was working was not a “substantial factor” in his injury.
I dissent, however, from the first holding in the majority opinion, i.e., that the burden of proof did not, as a result of appellant’s several clear admissions at his deposition, shift to him to show contact with transite pipe supplied by Keenan. Put simply, I think the cross-examination of appellant by Keenan’s counsel did, in fact, result in a shift of that burden, based on this panel’s opinion of last year in Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96 (Andrews).
We are, after all, talking about only one job here: the Martin Luther King Hospital (Hospital). This is so because, even in his direct examination, Sparks conceded that he recalled working with transite pipe only on that job. (Maj. opn. at p. 13.) And in his first day of cross-examination, Sparks conceded that Keenan supplied only steel pipe to the only other job (the Hughes Aircraft facility) as to which he recalled any supplies being transported into the jobsite by Keenan. (Maj. opn. at p. 16.)
The cross-examination by Keenan’s counsel seems to me––and obviously also to the trial court––to have demolished any previously-adduced evidence (i.e., via Sparks’s direct examination or his interrogatory responses) that he either unloaded or worked with Keenan-supplied pipe on the Hospital. (See maj. opn. at pp. 16-20.) Unlike the majority, I think the questions and answers in the course of Keenan’s counsel’s cross-examination of Sparks are sufficiently specific to have shifted the burden to appellant to show a triable issue of fact. Perhaps defense counsel might have tightened the noose a bit more, but I disagree that our Andrews’ test required any more “tightening,” because I believe the portion of Sparks’s testimony quoted by the majority establishes that he could not recall Keenan being the supplier of transite pipe at any jobsite he worked on.
Finally, I believe we should not pay a dime’s worth of attention to the three-month later (and certainly lawyer-drafted) declaration of Sparks. That declaration attempts a 180 degree shift by suggesting––contrary to Sparks’ explicit deposition testimony––that he worked with transite pipe supplied by Keenan on many “jobsites.” But, as noted earlier, this is a long, long way from what he testified to in both direct and cross-examination in his deposition. And, pursuant to our Supreme Court’s holding in D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22, a party should not be permitted, after a deposition, to adduce evidence that contradicts credible testimony given there.
In short, under our Andrews test, I think the results of the cross-examination of Sparks led to a shift in the burden of proof so that, after it, appellant had the burden of establishing exposure to transite pipe supplied by Keenan. Like, apparently, the trial court, I believe appellant did not sustain that burden––and certainly not by his sudden reversion to the plural “jobsites” in his declaration.
“Plaintiff knows that Keenan supplied the asbestos-containing pipes to these job sites because he recalls that Keenan was the major supplier for W.W. Price & Co., and he specifically recalls seeing Keenan delivery trucks at the Hughes Aircraft site. Plaintiff further recalls that he worked with transite and/or asbestos-containing pipe, including cutting and beveling such pipe, at the Martin Luther King, Jr. General Hospital job. Plaintiff further contends exposure to asbestos-containing pipes manufactured and/or supplied by Keenan at a number of yet unidentified residential and commercial job sites.” (Italics added.)
“A. It was delivered.
“Q. From whom was it delivered?
“A. That I couldn’t say either.
“Q. You told us, when your counsel was asking questions, that you believed it was Keenan who supplied the materials to this job site. Do you have a memory, sir, specifically of Keenan supplying this transite to the MLK project?
“A. On the Hood Project? On the Hood project?
“Q. Correct.
“A. I don’t know. I’d be speculating if it was Keenan or not.
“Q. So when you told us earlier that you believed it was Keenan, that is just
“A. They supplied to a lot of the job sites in that area.
“Q. And that’s your basis?
“A. Yes, sir.
“Q. And so whether they did supply the transite to this particular job site on this occasion, you’re not sure?
“A. I’m not sure.
“Q. Okay. And again, this was the only occasion that you personally worked with transite in your career. Is that true?
“A. Probably not within my career.
“Q. Okay. Do you have a memory, sir, of any other locations or employers for which you personally worked with transite?
“A. Not right off, no.” (Italics added.)