Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC-05-444172
Banke, J.
I. Introduction
Appellants, the wife and children of Donald Wilson, who died of mesothelioma, appeal from a summary judgment entered in favor of CertainTeed Corporation (CertainTeed). They maintain the trial court erred in concluding there is no triable issue CertainTeed was a manufacturer, distributor or supplier of asbestos fiber with which Wilson had contact, and thus erred in granting summary judgment to CertainTeed. We affirm.
II. Factual and Procedural Background
We confine our discussion of the facts to those relevant to the issues raised on appeal. We consider all the evidence before the trial court pertinent to these issues, except the evidence to which evidentiary objections were sustained.
Between 1959 and 1994, Wilson worked as a longshoreman at a number of San Francisco Bay area piers, including but “not limited to Ned Lloyd Lines piers 19 and 23, Piers 26 and 30, San Francisco, CA and Encinal Terminals, Alameda, CA.” Two coworkers submitted declarations stating they also worked with Wilson at “the cargo pier in Richmond, CA[] and piers in Oakland, CA” and the “Oakland Navy Base.” Between 1963 and 1968 or 1969, Wilson worked “75-80 [percent] of the time in San Francisco, CA.” The record does not reflect, however, the percentage of time he worked at any particular San Francisco pier. The cargo Wilson unloaded from ship holds included raw asbestos fiber packed in burlap bags. The bags sometimes had the word “asbestos” on them, and sometimes bore stenciling indicating the grade of the fiber. The bags were “frequently covered with dust” and often broke open. Wilson was responsible for “cleaning up the spilled contents of these sacks with brooms and shovels.” It could take one to two days, or up to a week, to unload a ship, depending on the size of the cargo.
From 1962 through 1973, CertainTeed purchased raw asbestos fiber for use at its Santa Clara manufacturing plant from Turners Asbestos Fibres Limited (Turners). The contract between CertainTeed and Turners specified “F.o.b. South African Port, ” and Turners made the shipping arrangements for export from Africa into the United States, through the Port of San Francisco. The asbestos fiber, both crocidolite and chyrsotile, was packed in South Africa, transported solely by Ned Lloyd Shipping Lines and “passed through Piers 19 and 23 only.” Turners sent CertainTeed four to six shipments of asbestos fiber a year. CertainTeed did not pay for storage of the asbestos fiber, and the record does not reflect who owned or controlled the warehouses. Longshoremen, such as Wilson, had no further contact with the material once it was warehoused. Raw asbestos destined for CertainTeed was transported by truck to its Santa Clara plant, which closed in 1982.
In 2005, Donald and Marjorie Wilson filed this action for damages against a number of defendants, including CertainTeed. Following Donald’s death from mesothelioma, the complaint was amended to add a cause of action for wrongful death and to add Wilson’s five children as plaintiffs.
After discovery, CertainTeed moved for summary judgment on the ground there was no evidence Wilson was “injured by exposure to an asbestos-containing product for which [CertainTeed] is legally responsible.” CertainTeed asserted it was not a “manufacturer, distributor, or retailer” of raw asbestos. And even if it “owned” raw asbestos prior to receiving it, there was no evidence Wilson was exposed to raw asbestos bound for CertainTeed. The trial court granted the motion, stating: “[T]he [c]ourt finds that CertainTeed has shifted the burden of producing evidence based on factually devoid discovery. Plaintiffs lack evidence that the off-loaded product was actually shipped to CertainTeed and CertainTeed cannot be liable for this product until CertainTeed receives it. Until that time, CertainTeed is not a manufacturer, distributor or supplier. [¶] CertainTeed has shown by admissible evidence and reasonable inferences therefrom that there is no triable issue of fact as to [p]laintiffs’ ability to prove causation against CertainTeed.”
Judgment was entered on November 19, 2008, and plaintiffs filed this timely appeal.
III. Discussion
Plaintiffs challenge the summary judgment on two grounds. They first argue the raw asbestos became a CertainTeed “product” when it was loaded on board a ship in South Africa because CertainTeed’s contract with Turners specified “F.o.b. South African Port.” They secondly argue there is a triable issue as to causation and, specifically, a triable issue that Wilson unloaded bags of raw asbestos bound for CertainTeed. We address the issue of causation first because our decision in that regard eliminates the need for us to reach the issue of whether raw asbestos being shipped to a manufacturer can be a “product” thereof before it ever reaches the manufacturer.
The California Uniform Commercial Code provides in pertinent part: “Unless otherwise agreed the term F.O.B. (which means ‘free on board’) at a named place, even though used only in connection with the stated price, is a delivery term... [¶] (a) When the term is F.O.B. the place of shipment, the seller must at that place ship the goods in the manner provided in this division (Section 2504) and bear the expense and risk of putting them into the possession of the carrier....” (Cal. U. Com. Code, § 2319.)
A. Summary Judgment and the Standard of Review
In reviewing a grant of summary judgment, we independently examine the record to determine if there are any triable issues of material fact. We “view the evidence in the light most favorable to plaintiffs as the losing parties, resolving any evidentiary doubts or ambiguities in their favor.” (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1102 (McGonnell).)
CertainTeed, as the party moving for summary judgment, had the burden of showing that one or more elements of the plaintiffs’ causes of action could not be established. (Code Civ. Proc., § 437c, subd. (o)(1); McGonnell, supra, 98 Cal.App.4th at pp. 1102-1103.) It bore the “initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. [Citation.] If the defendant carries the burden of production, the burden shifts to the plaintiff to make his or her own prima facie showing of the existence of a triable issue of fact.” (McGonnell, at p. 1103.) The trial court concluded “CertainTeed has shifted the burden of producing evidence based on factually devoid discovery, ” and plaintiffs do not contend otherwise on appeal.
B. There Is No Triable Issue as to Causation
“A threshold issue in asbestos litigation is exposure to the defendant’s product. The plaintiff bears the burden of proof on this issue.” (McGonnell, supra, 98 Cal.App.4th at p. 1103.) If there has been no exposure, there is no causation. (Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655 (Dumin).) “Plaintiffs may prove causation in an asbestos case by demonstrating that the plaintiff’s or decedent’s exposure to the defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer.” (McGonnell, at p. 1103.)
Plaintiffs contend there was sufficient circumstantial evidence Wilson was exposed to asbestos bound for CertainTeed to raise a triable issue as to causation. They point to evidence that, from 1963 through 1968 or 1969, Wilson worked as a longshoreman at San Francisco piers 19 and 23, the only piers through which asbestos bound for CertainTeed’s Santa Clara plant arrived from Africa. They claim this is “indirect evidence” from which a jury “could reasonably infer [Wilson] suffered hazardous exposure to CertainTeed’s products, ” relying on Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409 (Lineaweaver). Again, even assuming raw asbestos in transit to a manufacturer could constitute a “product” thereof, an issue we do not reach, the facts here do not approach those in Lineaweaver.
In Lineaweaver, the lead plaintiff worked at an oil refinery from 1950 to 1984, cleaning up asbestos debris, ripping out old insulation, and working near other tradespeople who produced asbestos dust. (Lineaweaver, supra, 31 Cal.App.4th at p. 1413.) After developing asbestosis, he sued numerous asbestos suppliers, ultimately proceeding to trial solely against Plant Insulation Company (Plant). (Ibid.) Plant was the “exclusive Northern California distributor of Fibreboard insulation products, marketed under the Pabco trademark, ” and a “significant supplier” of insulation products at the refinery, performing “about 50 percent of the insulation work done at the refinery in the 1960s.” (Ibid.) The trial court concluded there was insufficient evidence the plaintiff’s injuries were “caused by exposure to Plant distributed products, ” and granted a nonsuit. (Ibid.)
The Court of Appeal reversed, holding the plaintiff had presented sufficient circumstantial evidence of exposure to Plant-supplied asbestos products. (Lineaweaver, supra, 31 Cal.App.4th at p. 1419-1420.) The court delineated this evidence as: “(1) Plant was the exclusive distributor in Northern California of Pabco asbestos insulation products beginning in 1948; (2) Lineaweaver worked at the Standard Oil refinery from 1950 to 1984, repeatedly working with and around asbestos insulation; (3) Lineaweaver worked throughout the sprawling refinery which has insulation over about two-thirds of its pipes and much of its equipment; (4) Lineaweaver saw boxes of Pabco products at the refinery; (5) Plant was a significant supplier of asbestos products, performing about 50 percent of the insulating work at the refinery in the 1960s; (6) another major insulation contractor used Pabco and another product as ‘fill-in’ supplies which constituted 10 to 15 percent of the refinery’s insulation installed by that contractor.” (Id. at pp. 1419-1420.)
While the appellate court acknowledged there was no direct evidence Lineaweaver was exposed to Plant-supplied Pabco, it held the circumstantial evidence was sufficient to support a reasonable inference of exposure because “plaintiff has established that defendant’s product was definitely at his work site and that it was sufficiently prevalent to warrant an inference that plaintiff was exposed to it during his more than 30 years of working with and around asbestos throughout the refinery.” (Lineaweaver, supra, 31 Cal.App.4th at p. 1420.)
The evidence here is not comparable to that held sufficient to raise a triable issue of fact in Lineaweaver. Not only was there no evidence the piers at which Wilson worked were laden with permanently installed asbestos products (as is a refinery), the evidence was uncontradicted raw asbestos was shipped to CertainTeed only four to six times a year and only through San Francisco piers 19 and 23. Wilson worked on at least four San Francisco piers (piers 19, 23, 26 and 30), as well as other Bay Area piers, and there was no evidence showing precisely when or how long he worked at each. This stands in marked contrast to Lineaweaver’s 30-year career at the Standard Oil refinery where asbestos products covered two-thirds of the piping and much of the equipment, and at least 50 percent of the asbestos insulation installed in the 1960s was identifiably Plant product.
At oral argument, plaintiffs’ counsel asserted Wilson worked at piers 19 and 23 between 75-80 percent of the time during the five- to six-year period. The record, however, does not support this claim. The carefully worded declaration of Wilson’s coworker, Cornelius Jamerson, indicated he and Wilson worked “approximately 75-80% of the time in San Francisco” during the relevant time period, not 75-80 percent of the time at any specific San Francisco piers. (Italics added.) Indeed, there is no evidence in the record indicating how many times, or what percentage of time, Wilson worked at San Francisco piers 19 and 23.
Plaintiffs’ counsel also claimed during oral argument Wilson had 36 weeks of exposure to asbestos bound for CertainTeed. This “36 week” number is apparently based on: (1) the higher of the two percentage figures for the estimated time Wilson worked at various San Francisco piers between 1963 and 1968 or 1969 (75 to 80 percent), (2) the highest estimated number of shipments of raw asbestos to CertainTeed through San Francisco piers 19 and 23 (four to six), and (3) the highest time frame required to unload the shipments (one to two days, or sometimes a week, depending on the size of the cargo). We observe that using the lower of all these figures yields an estimated total exposure during the five- to six-year period of only 20 days. In short, the record does not contain any evidence permitting an estimate that is anything other than speculation. Moreover, regardless of which estimate is made, a critical foundational fact is missing on the issue of causation. There is simply no evidence Wilson and asbestos bound for CertainTeed were ever present at Piers 19 and 23 at the same time.
Courts considering more limited indirect evidence of asbestos exposure than in Lineaweaver have held the evidence insufficient to raise a triable issue of causation. In Dumin, supra, 28 Cal.App.4th 650, for example, the plaintiff worked on Navy ships as a boiler tender for 20 years. (Id. at p. 653.) He could not identify Owens-Corning’s “Kaylo” insulation as one of the asbestos products to which he was exposed and relied on the testimony of one witness in an earlier case who had worked at the Norfolk Naval Shipyard where one of the Navy ships had been based. (Ibid.) That witness had testified Owens-Corning Kaylo was “customarily” used at the shipyard “ ‘somewhere in the late ‘40s or early ‘50s.’ ” (Id. at pp. 655-656.) The plaintiff worked on a ship home-ported at Norfolk in 1953 and 1954, but there was no evidence how often it returned to port or what products were used on that particular ship. (Id. at pp. 653-656.) The court concluded this evidence was insufficient to “support a reasonable inference of causation.” (Id. at p. 656.)
Similarly, in both McGonnell and Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96 (Andrews), the courts concluded limited circumstantial evidence of exposure was insufficient to create a triable issue as to causation. (Id. at p. 108; McGonnell, supra, 98 Cal.App.4th at p. 1105.) In McGonnell, the circumstantial evidence “suggest[ed] Kaiser Cement products might have been used once on a construction project” at the plaintiff’s workplace, and “it is at least within the realm of possibility” that the plaintiff “encountered a wall with Kaiser [asbestos-containing] joint compound during his 24 years of employment.” (McGonnell, at p. 1105.) This was not enough, however, to make causation anything more than speculation. (Ibid.) In Andrews, the plaintiffs “theorized, Foster Wheeler condensers were on board” the ship on which Andrews worked and at some point during maintenance operations, asbestos-containing gaskets in the condensers released asbestos fibers which were “re-entrained” in the air at the time Andrews visited the boiler room. (Andrews, at p. 111.) Again, this evidence was not sufficient to raise a triable issue as to exposure and causation. (Id. at pp. 112-113.) As the court explained, “[t]he mere ‘possibility’ of exposure does not create a triable issue of fact.” (Id. at p. 108.)
Plaintiffs suggest Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77 established an evidentiary threshold that they met. In Smith, the evidence indicated ACandS might have installed insulation somewhere within a refinery on two occasions when Smith might have been working there. (Id. at p. 87.) But it was “not certain that Smith and ACandS were ever at the refinery at the same time.” (Ibid.) The court concluded “only rank speculation, not reasonable inferences, could support a conclusion that Smith was exposed to ACandS installed asbestos materials.” (Id. at p. 89.) The circumstantial evidence plaintiffs presented here likewise fails to support a reasonable inference of exposure to a CertainTeed product. To paraphrase Smith, it is not certain Wilson and any asbestos bound for CertainTeed were ever at Piers 19 or 23 at the same time.
Overruled in part on other grounds in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1243, 1245.
In sum, missing from the claimed “circumstantial evidence” in this case is any connection between bags of asbestos unloaded by Wilson and bags of asbestos bound for CertainTeed. As the Lineaweaver court held in regard to a different appellant, the paucity of evidence to which plaintiffs point here only “creates a dwindling stream of probabilities that narrow into conjecture.” (Lineaweaver, supra, 31 Cal.App.4th at p. 1421.) There is simply no evidence Wilson ever unloaded a bag of raw asbestos fiber destined for CertainTeed, or that raw asbestos purchased by CertainTeed was “sufficiently prevalent” in Wilson’s places of work to support a reasonable inference he was exposed to it.
Lineaweaver involved three appellants raising the same issue. The court found sufficient indirect evidence of exposure to the Plant products only as to Lineaweaver, but not as to the other two.
We therefore conclude the trial court correctly determined there was no triable issue as to exposure and causation and affirm the summary judgment on that ground.
IV. Disposition
The judgment is affirmed.
We concur: Marchiano, P. J., Dondero, J.