Filed 6/24/20 Collantes v. Elementis Chemicals, Inc. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JOVANA COLLANTES et al.,

Plaintiffs and Appellants,

v.

ELEMENTIS CHEMICALS, INC., et al.,

Defendants and Respondents.

B295278

(Los Angeles County

Super. Ct. No. BC475956)

APPEAL from a judgment of the Superior Court of Los Angeles County, John J. Kralik, Judge. Reversed and remanded with directions.

Dean Omar Branham Shirley and Benjamin H. Adams; Farrise Law and Simona A. Farrise; Bartlett Barrow and Brian P. Barrow for Plaintiffs and Appellants.

Dehay & Elliston, William H. Armstrong, Jennifer D. Fitzpatrick, and Heather Weakley for Defendant and Respondent Elementis Chemicals, Inc.

Polsinelli, Stephen M. Nichols, Farah S. Nico, and David K. Schultz for Defendant and Respondent Union Carbide Corporation.

INTRODUCTION

After Joel Hernandezcueva died from mesothelioma, his spouse, Jovana Collantes, and four children (collectively, Collantes) filed this survivor and wrongful death action against Union Carbide Corporation and Elementis, Inc. Collantes alleged that Hernandezcueva, while working as a janitor at a building complex, inhaled drywall debris containing asbestos supplied by Union Carbide and Elementis. The trial court granted motions by Union Carbide and Elementis for summary judgment, ruling Collantes did not possess, and could not reasonably obtain, sufficient evidence Hernandezcueva was exposed to the asbestos. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Hernandezcueva and Collantes File Lawsuits After Doctors Diagnose Hernandezcueva with Mesothelioma

According to Collantes’s evidence and the allegations in the operative complaint, in 1975 and 1976 E.F. Brady Company, a contractor, constructed interior walls in the buildings at a large complex occupied by Fluor Corporation and related entities (the Fluor complex). E.F. Brady installed the drywall in the complex using joint compound manufactured by Hamilton Materials. The Hamilton joint compound contained Calidria, a type of asbestos mined and supplied by Union Carbide and distributed by Elementis and its predecessor-in-interest.

Hernandezcueva worked as a janitor at the Fluor complex from 1992 to 1995. Hernandezcueva worked around construction projects at the complex and cleaned up drywall debris from the projects. Several years after Hernandezcueva stopped working at the complex, his doctors diagnosed him with mesothelioma.

In December 2011 Hernandezcueva and Jovana Collantes filed an action against several defendants, but not Union Carbide or Elementis, arising from Hernandezcueva’s alleged exposure to asbestos at the Fluor complex. The case went to trial against E.F. Brady in September 2013. Following the close of the plaintiffs’ case-in-chief, the court granted E.F. Brady’s motion for nonsuit on all but one of the causes of action. The jury subsequently returned a verdict in favor of E.F. Brady on the remaining cause of action, and the trial court entered judgment for E.F. Brady.

Hernandezcueva and Jovana Collantes appealed from the judgment, challenging the court’s order granting E.F. Brady’s motion for nonsuit. In April 2014, while that appeal was pending, Hernandezcueva died. Collantes then filed this action against Union Carbide and other defendants, later adding Elementis as a Doe defendant. On December 22, 2015 Division Four of this court reversed the trial court’s order granting E.F. Brady’s motion for nonsuit on Hernandezcueva’s strict liability cause of action in the initial action. (Hernandezcueva v. E.F. Brady Co., Inc. (2015) 243 Cal.App.4th 249.) That action was eventually consolidated with Collantes’s subsequent action against Union Carbide and Elementis. In the operative complaint against Union Carbide and Elementis, Collantes asserted causes of action for negligence, breach of implied warranty, strict liability, misrepresentation, fraud, failure to warn, and wrongful death.

B. The Trial Court Grants Motions by Union Carbide and Elementis for Summary Judgment

Union Carbide and Elementis filed motions for summary judgment. They argued Collantes could not prevail on her causes of action because she did not possess, and could not reasonably obtain, sufficient evidence to prove Hernandezcueva was exposed to asbestos supplied and distributed by Union Carbide and Elementis. Union Carbide and Elementis submitted several pieces of evidence in support of their motion.

First, Union Carbide and Elementis submitted the deposition testimony of Vincent Lombardo, a representative of E.F. Brady. Lombardo testified E.F. Brady constructed interior walls in the “shell” of the buildings at the Fluor complex, which included elevator shafts, stairwells, electrical rooms, closets, and common restrooms, but did not perform construction in the “tenant improvement area” or “individual office space[s]” within the buildings. He also testified E.F. Brady did not remodel any part of the buildings after it completed its initial construction.

Second, Union Carbide and Elementis submitted the deposition testimony of John Sorich, who worked for over 20 years in Fluor’s facilities operations department. Sorich testified there were alterations to the “interior spaces” of the buildings in the Fluor complex between 1979 and 1986.

Finally, Union Carbide and Elementis submitted copies of numerous building permit applications Fluor submitted to the City of Irvine for improvements or renovations at the Fluor complex. Union Carbide and Elementis argued these permit applications showed there were “significant construction, remodeling, and demolition projects” involving interior walls at the Fluor complex after E.F. Brady completed its initial construction but before Hernandezcueva began working there. Union Carbide and Elementis argued that, in light of these projects, any inference the drywall debris Hernandezcueva allegedly inhaled in the 1990s came from the same asbestos-containing drywall E.F. Brady installed in the 1970s was speculative.

In opposition to the motions for summary judgment, Collantes submitted Sorich’s testimony from the trial in the first action against E.F. Brady. In his testimony at that trial, Sorich estimated that 75 percent of “the original drywall material” remained at the Fluor complex building in 1992 and that between 1992 and 1995—the years Hernandezcueva worked at the Fluor complex—Fluor disturbed 25 percent of the original drywall when reconfiguring offices. Union Carbide and Elementis had not addressed this trial testimony in their moving papers, even though they had relied on Sorich’s deposition testimony to support their motions.

After Collantes filed her opposition, Union Carbide and Elementis objected to Sorich’s prior trial testimony, arguing it was hearsay and not subject to the exception for prior testimony under Evidence Code sections 1291 or 1292, each of which requires that the declarant is unavailable to testify. (See Evid. Code, §§ 1291, subd. (a), 1292, subd. (a)(1).) Collantes conceded during the hearing on the motions for summary judgment that Sorich was not unavailable.

The trial court sustained the objections to Sorich’s trial testimony and ruled Collantes presented insufficient evidence to show Hernandezcueva was exposed to asbestos supplied by Union Carbide and Elementis. The court granted the motions for summary judgment and entered judgment in favor of Union Carbide and Elementis. Collantes timely appealed.

DISCUSSION

A. Applicable Law and Standard of Review

When asserting “a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982-983; accord, Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 979 (Turley).) “‘If there has been no exposure, there is no causation.’” (Petitpas v. Ford Motor Co. (2017) 13 Cal.App.5th 261, 289; see Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 969; McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103 (McGonnell).)

“Summary judgment is appropriate only ‘where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618; see Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600, 607.) Where, as here, a defendant moves for summary judgment arguing the plaintiff cannot establish exposure, the defendant meets “its initial burden of production by making a prima facie showing that [the] plaintiff does not have, and cannot obtain, evidence necessary to show exposure” to the defendant’s asbestos or asbestos-containing product. (Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 594; see Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, 1116 [“To meet its initial burden in moving for summary judgment, a defendant must present evidence that either ‘conclusively negate[s] an element of the plaintiff’s cause of action’ or ‘show[s] that the plaintiff does not possess, and cannot reasonably obtain,’ evidence necessary to establish at least one element of the cause of action.”].) If the defendant meets this burden, “the burden shift[s] to the plaintiff to establish a triable issue of material fact regarding exposure.” (Collin, at p. 589; see Henderson, at p. 1116 [“[o]nce the defendant satisfies its initial burden, ‘the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action”].) “The quality of evidence of exposure must be sufficient ‘to allow the trier of fact to find . . . in favor of the party opposing the motion for summary judgment.’” (Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1237; see Collin, at p. 595; McGonnell, 98 Cal.App.4th at p. 1105.)

We review a trial court’s ruling on a motion for summary judgment de novo. (Samara v. Matar (2018) 5 Cal.5th 322, 338.) We consider “‘“‘“all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.”’ [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”’” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; see Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.)

B. Union Carbide and Elementis Did Not Meet Their Initial Burden of Showing Collantes Did Not Have Sufficient Evidence of Exposure

“[T]o establish exposure in an asbestos case a plaintiff has no obligation to prove a specific exposure . . . on a specific date or time. Rather, it is sufficient to establish ‘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 work there.” (Turley, supra, 18 Cal.App.5th at p. 985.)

For purposes of their motions for summary judgment, Union Carbide and Elementis did not dispute Collantes’s allegations that E.F. Brady constructed interior walls in the buildings at the Fluor complex in the mid-1970s, that E.F. Brady used Hamilton joint compound “throughout each of the buildings where E.F. Brady installed drywall,” and that the Hamilton joint compound contained asbestos supplied by Union Carbide and distributed by Elementis. Union Carbide and Elementis also did not dispute that, between 1992 and 1995, Hernandezcueva observed construction projects at the Fluor complex and cleaned (and, in the process, inhaled) drywall debris from the projects.

Given these admissions, even without Sorich’s prior trial testimony that original drywall in the Fluor complex buildings was disturbed while Hernandezcueva worked there, Union Carbide and Elementis failed to show there was no triable issue of material fact regarding whether Hernandezcueva was exposed to the asbestos. Absent evidence someone other than E.F. Brady constructed a number of interior walls, removed a significant number of the walls installed by E.F. Brady, or replaced the drywall installed by E.F. Brady, the admissions by Union Carbide and Elementis in their motions for summary judgment established that asbestos supplied by Union Carbide and Elementis was present at Hernandezcueva’s work site and that “‘it was sufficiently prevalent to warrant an inference’” that Hernandezcueva was exposed to it. (Turley, supra, 18 Cal.App.5th at p. 985; see Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1419-1420 [there was sufficient evidence to warrant an inference of exposure where the plaintiff “repeatedly work[ed] with and around asbestos insulation” at a refinery, the defendant “perform[ed] about 50 percent of the insulating work at the refinery,” and 10 to 15 percent of the insulation installed by “another major insulation contractor” contained asbestos supplied by the defendant].) Thus, unlike many asbestos exposure cases, the issue here was not whether Union Carbide and Elementis’s asbestos was ever in the building where Hernandezcueva worked and breathed construction debris; they admitted (for purposes of their motions) it originally was. The issue was whether their asbestos was gone before Hernandezcueva got there.

Union Carbide and Elementis argue that, because there were projects at the Fluor complex buildings involving the construction of interior walls after E.F. Brady finished its initial construction, but before Hernandezcueva started working at the complex, a fact finder could only speculate whether the drywall debris Hernandezcueva inhaled was from the same drywall E.F. Brady installed. This argument, however, is missing a crucial piece: Union Carbide and Elementis did not submit evidence that conclusively showed someone other than E.F. Brady constructed a substantial number of interior walls in the buildings at the Fluor complex. Lombardo testified E.F. Brady only constructed walls in the area he described as the “shell” of the buildings, but did not construct walls in the “tenant improvement area.” But Lombardo did not testify someone other than E.F. Brady constructed additional walls or installed drywall. Lombardo also did not testify about what construction in a “tenant improvement area” included or entailed or how the surface area of walls in a “tenant improvement area” might compare to the walls in the “shell.” Moreover, because Lombardo was a representative of E.F. Brady, not Fluor, a fact finder could reasonably infer he did not know what construction projects were performed at the Fluor complex after E.F. Brady finished the initial construction. (See Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76 [“We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor.”].)

Sorich testified there were “modifications” and “alterations” of interior spaces at the Fluor complex between 1979 and 1986. Union Carbide and Elementis submitted this testimony to show again there were “tenant improvements” during these years involving construction of interior walls. But Union Carbide and Elementis did not submit testimony from Sorich that these modifications and alterations necessarily included constructing walls. In fact, the evidence suggested these purported alterations did not involve wall construction or renovations, did not occur frequently, or did not occur at all. When asked how frequently there were modifications of interior spaces, Sorich testified it was somewhere between “constant and infrequent.” (See Turley, supra, 18 Cal.App.5th at p. 985 [“to the extent [the witness]’s testimony was ambiguous . . . summary judgment had to be denied”].) Sorich also testified at least some of these modifications and alterations were to “cubicles” and “moveable panels” that “would not involve the disruption of walls.” Moreover, other witnesses contradicted Sorich’s testimony. For example, a representative of Fluor’s maintenance services testified that, as far as he knew, between “the completion of original construction” and May 1987, there was no “remodeling or tenant improvement activities” or “any destruction of walls” at the Fluor complex. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 119 [where “deposition testimony . . . may support conflicting interpretations, ‘the task of disambiguating ambiguous utterances is for trial, not for summary judgment’”].)

Nor did the bulky collection of often barely legible permit applications Union Carbide and Elementis submitted show there was “significant” wall construction or renovation in the building where Hernandezcueva worked and breathed construction debris. The documents Union Carbide and Elementis submitted were applications for permits, and Union Carbide and Elementis submitted no evidence showing which if any of the proposed improvements described in the permit applications Fluor completed. And the overwhelming majority of the permit applications did not refer to interior walls or drywall; most of them were for plumbing and electrical improvements. The few applications that did refer to walls or drywall gave no indication of the surface area of the walls Fluor was proposing to build, install, or alter.

Did the evidence Union Carbide and Elementis submitted suggest that there was construction or modification of interior walls at the Fluor complex after E.F. Brady finished its construction and before Hernandezcueva started working there and that Hernandezcueva may not have been exposed to debris from the same drywall E.F. Brady installed? Maybe. But did this evidence show this was the only finding a reasonable fact finder could make (i.e., was there no triable issue of fact)? No. (See Sharufa v. Festival Fun Parks, LLC (May 27, 2020, H044064) __ Cal.App.5th ___, ___ [2020 WL 2739859, p. 1] [to determine whether a “defendant is entitled to summary [judgment] . . . we review the entire record and ask whether a reasonable trier of fact could find in plaintiff’s favor”]; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [“if any evidence or inference therefrom shows or implies the existence of the required element(s) of a cause of action, the court must deny a defendant’s motion for summary judgment . . . because a reasonable trier of fact could find for the plaintiff”]; see also McHenry v. Asylum Entertainment Delaware, LLC (2020) 46 Cal.App.5th 469, 479 [a triable issue of material fact exists 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’”].) Considering the limited, ambiguous, and conflicting evidence Union Carbide and Elementis submitted in support of their motions, a reasonable fact finder could find that there were only minor (or no) improvements involving wall construction at the Fluor complex and that Hernandezcueva more likely than not was exposed to debris from the same drywall E.F. Brady installed. (See Santillan v. Roman Catholic Bishop of Fresno (2008) 163 Cal.App.4th 4, 12 [“evidentiary doubts or ambiguities are ordinarily resolved in favor of the party opposing summary judgment”]; Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1048 [“we liberally construe all conflicting facts in the light most favorable to the party opposing the motion”].)

Union Carbide and Elementis rely primarily on three cases where the plaintiff did not provide sufficient evidence he (or the decedent) was exposed to the defendant’s asbestos-containing product. (See Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246; Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078; McGonnell, supra, 98 Cal.App.4th 1098.) These cases are distinguishable. In each the plaintiff alleged that, while working in a building or building complex, he or the decedent was exposed to material—either joint compound or insulation—containing asbestos supplied by the defendant. But in these cases there was no evidence that, at any point, all of the joint compound or insulation at issue in the building contained the defendant’s asbestos. Here, it was undisputed (for purposes of the motions for summary judgment) that E.F. Brady initially constructed all the interior walls of the Fluor complex buildings using joint compound containing asbestos supplied by Union Carbide and Elementis.

For example, the plaintiff in McGonnell, like Hernandezcueva, contended he was exposed to joint compound containing asbestos that a contractor had installed in the walls of the building complex where he worked. (McGonnell, supra, 98 Cal.App.4th at p. 1105.) But there was no evidence in McGonnell that, at any time, all of the walls in the building complex were constructed with asbestos-containing joint compound supplied by the defendant. (See ibid. [plaintiff submitted only invoices showing the sale of joint compound supplied by the defendant for “a project” at the building complex].) In Shiffer v. CBS Corp., supra, 240 Cal.App.4th 246 the plaintiff worked for one summer at a power plant and alleged he was present when the defendant installed asbestos-containing insulation on pipes. (Id. at pp. 249 250.) But there was no evidence that at any point all of the pipes at the power plant were insulated with asbestos supplied by the defendant. (See id. at p. 249 [defendant “conceded the presence of asbestos in the crossover and cross-under pipe insulation,” but “[t]here is nothing from [the defendant] about the nature of the insulation of any other kinds of pipes”].) Similarly, in Whitmire v. Ingersoll-Rand Co., supra, 184 Cal.App.4th 1078 the decedent worked at a power plant and the plaintiffs alleged he was exposed to thermal insulation installed by the defendant. (Id. at p. 1091.) But there was no evidence that all of the thermal insulation at the power plaint contained asbestos supplied by the defendant. (See id. at p. 1093 [“even if we assume that the medium temperature insulation did contain asbestos, there is no evidence demonstrating that this type of insulation, as opposed to the high temperature insulation, was actually installed on the pumps, valves, and boilers located in the vicinity in which [the plaintiff] worked”].)

Here, Union Carbide and Elementis did not dispute that, when E.F. Brady built the original interior walls in the Fluor complex buildings, it used joint compound containing asbestos supplied by Union Carbide and Elementis to build all of the walls. Because Union Carbide and Elementis did not submit conclusive evidence showing there were significant changes to the interior walls, a reasonable fact finder could infer Hernandezcueva more likely than not was exposed to their asbestos when he inhaled drywall debris at the Fluor complex.

DISPOSITION

The judgment is reversed. The trial court is directed to vacate its orders granting the motions by Union Carbide and Elementis for summary judgment and to enter new orders denying those motions. Collantes is to recover her costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J. DILLON, J.*