Opinion
H043867
11-21-2018
BEVERLY TRAPP, Individually and Successor in Interest, etc., et al., Plaintiffs and Appellants, v. CERTAINTEED CORPORATION et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 114-CV264682)
Dean Trapp, husband of Beverly Trapp and father of Bryan Trapp, Gary Trapp, and Kevin Trapp, died from mesothelioma in April 2014. After Dean's death, Beverly, Bryan, Gary, and Kevin (collectively, "appellants") filed a lawsuit against several defendants, including CertainTeed Corporation (CertainTeed) and Calaveras Asbestos, Limited (Calaveras) (collectively, "respondents"), alleging causes of action for negligence, premises liability, breach of express and implied warranties, strict products liability, and negligent exercise of retained control. Appellants claimed Dean was exposed to airborne asbestos emissions from a cement pipe plant operated by CertainTeed in Santa Clara between 1963 to 1997, and Calaveras supplied asbestos to CertainTeed between 1976 and 1986. During the years of his alleged asbestos exposure, Dean lived and worked between four and seven miles from the plant.
Respondents separately moved for summary judgment, attaching declarations by expert witnesses. Appellants opposed the motions for summary judgment and attached declarations prepared by their own expert witnesses. Appellants raised objections to respondents' evidence, and respondents raised objections to appellants' evidence. Ultimately, the trial court granted respondents' motions for summary judgment. With respect to appellants' causes of action for negligence and premises liability, the court found that as a matter of law respondents had no duty of care to Dean, and even if there was a duty of care there was no triable issue of material fact with respect to causation. The court also found the causes of action for breach of express and implied warranties, strict liability, and negligent exercise of retained control inapplicable to the facts of the case. In its order, the court overruled most of appellants' evidentiary objections and sustained all of respondents' evidentiary objections.
On appeal, appellants argue the trial court abused its discretion when making its evidentiary rulings. Appellants also claim the trial court's legal conclusions were erroneous and summary judgment was improper because there were triable issues of material fact. As we explain below, we find merit in appellants' claim that the trial court erred when it overruled their objections to respondents' expert declarations. We also conclude the trial court erroneously determined appellants' cause of action for strict products liability could not be maintained against respondents. Thus, we find respondents failed to meet their burden to show appellants' causes of action for negligence, premises liability, and strict products liability have no merit. We reverse the trial court's judgments.
BACKGROUND
1. The Wrongful Death Suit
Dean was diagnosed with mesothelioma on October 11, 2013 and died from his illness on April 6, 2014. On May 2, 2014, appellants filed a wrongful death suit against several defendants, including respondents. Appellants' complaint alleged causes of action for negligence, breach of express and implied warranties, strict products liability, premises liability, and negligent exercise of retained control. Appellants also sought punitive damages.
The complaint, along with appellants' response to respondents' interrogatories, alleged that Dean lived and worked near CertainTeed's Santa Clara plant between 1963 and 1997, and CertainTeed's manufacturing of asbestos-containing products contaminated the ambient air and the surrounding environment with harmful levels of asbestos. Appellants identified Calaveras as a fiber supplier.
Appellants' complaint was vague and did not indicate how far Dean lived and worked from CertainTeed's plant and did not specify how Dean became exposed to asbestos from Calaveras. In response to standard interrogatories, appellants provided a residential address in Sunnyvale where Dean lived between 1963 and 1973 and a residential address where Dean lived in Cupertino between 1973 to 1994. More specifically, appellants alleged Calaveras supplied fiber to CertainTeed's Santa Clara plant between 1976 to 1986, and the plant contaminated the ambient air with harmful levels of asbestos. In a deposition, Beverly stated that Dean had worked at a Lockheed Martin plant in Sunnyvale between 1957 to his retirement in 1995, with a brief stint at Hillyer Helicopter.
In sum, appellants' complaint and responses to interrogatories established Dean worked and lived between four and seven miles from CertainTeed's Santa Clara plant. In its separate statement of undisputed facts, CertainTeed asserted that Dean had never been inside CertainTeed's Santa Clara plant and had never used any CertainTeed product.
Appellants disputed this fact in its response to CertainTeed's separate statement, noting that it had never actually conceded that Dean had never been inside the Santa Clara plant. However, appellants did not cite any evidence to the contrary.
According to Calaveras, it operated its mine and mill between 1976 and 1987, when it ceased mining and milling of asbestos. By February 1988, Calaveras stopped all sales and shipments of asbestos. Calaveras's controller, Daryl Larsen, was involved in the labeling and packaging of asbestos products and prepared a declaration in support of Calaveras. Larsen declared each bag of asbestos fiber shipped by Calaveras was clearly labeled "asbestos" and bore warnings as required under the applicable Occupational Safety and Health Administration (OSHA) regulations.
2. Calaveras's Motion for Summary Judgment
a. The Motion
Calaveras moved for summary judgment. With respect to appellants' cause of action for negligence, Calaveras argued that "[a] mere mention that Calaveras supplied asbestos fibers to CertainTeed is all that [appellants] rel[y] on." It further argued that based on the evidence Calaveras had presented with its motion for summary judgment, appellants could not prove that Dean inhaled fiber from CertainTeed's plant or that any of the inhaled fibers were supplied by Calaveras.
Calaveras further sought summary adjudication of appellants' other claims. Calaveras argued the causes of action for breach of express and implied warranties, strict liability, and negligence based on a failure to warn were inapplicable. There was no evidence Dean ever purchased a consumer good from Calaveras, and it was established that every bag of asbestos sold by Calaveras bore OSHA-mandated warnings. It also argued there was no evidence of malice or conscious disregard toward Dean, so appellants' claim of punitive damages also warranted summary adjudication.
b. Stephen Zemba's Declaration
In support of its motion, Calaveras attached a declaration from Stephen Zemba, a mechanical engineer with CDM Smith Inc. Zemba held a Bachelor of Science degree from Carnegie-Mellon University and a Master of Science degree and a Ph.D. from Massachusetts Institute of Technology in the field of mechanical engineering. Zemba was retained by Calaveras to prepare a report summarizing his findings regarding outdoor air concentrations of asbestos fibers from airborne asbestos that may have been released from CertainTeed's Santa Clara plant. Specifically, Calaveras had asked Zemba to estimate the concentration of airborne asbestos fibers that may have traveled to areas where Dean lived and worked between 1963 and 1982.
According to Zemba, he had reviewed documents that indicated Calaveras supplied approximately 16 percent of the asbestos purchased by CertainTeed between 1976 and 1982. That meant Calaveras supplied less than 5 percent of CertainTeed's asbestos over the total period between 1963 to 1982.
Zemba reviewed historical industrial hygiene data that recorded asbestos dust levels inside and near CertainTeed's Santa Clara plant. He also reviewed information pertaining to the plant's equipment, procedures, and activities. From this information, Zemba quantified the amount of asbestos the plant could have released into the air. Then, using Environmental Protection Agency (EPA) models and local wind data, he modeled the dispersion of asbestos emissions to the surrounding communities, which permitted him to predict the concentration of asbestos that CertainTeed contributed to the environment. Zemba also inputted other data into his reconstructive model, including assumptions about living and working habits of individuals between 1962 and 1982.
Using the data he had gathered, Zemba was able to extrapolate a worst-case estimation of Dean's asbestos exposure given his residential and workplace addresses between 1976 and 1982. Noting that CertainTeed was "one of many sources that introduced asbestos to air, both locally and regionally," including naturally-occurring serpentine rock and consumer products like automotive brakes, Zemba concluded that CertainTeed was responsible for less than 1 percent of the exposure to airborne asbestos experienced by individuals living and working at locations even closer to the plant than Dean. Thus, Zemba estimated that Calaveras-supplied asbestos released from the CertainTeed plant would have accounted for less than 0.2 percent of Dean's general background exposure to asbestos.
Zemba attached his curriculum vitae to his declaration. He did not attach the data or studies he relied on when formulating his opinion, such as the historical industrial hygiene data that recorded CertainTeed's asbestos emissions.
c. Howard Spielman's Declaration
Calaveras also attached a declaration executed by Howard Spielman, an experienced industrial hygienist. Spielman had reviewed the depositions taken of Beverly, Bryan, Gary, and Kevin. He had also reviewed appellants' discovery responses and responses to Calaveras's special interrogatories and Zemba's declaration supporting Calaveras's motion for summary judgment. Lastly, he reviewed charts detailing the amount of fiber used at CertainTeed's Santa Clara plant, which were prepared by Robert Hartman, CertainTeed's asbestos cement coordinator and fiber specialist between June 1, 1962 and July 14, 1986.
Based on Hartman's charts, Spielman opined that CertainTeed's Santa Clara plant did not use any Calaveras asbestos fiber until 1976; however, the plant was operational and used asbestos fibers from other companies between 1963 and 1975. Calaveras was also one of multiple asbestos suppliers to CertainTeed between 1976 through 1982. Calaveras asbestos fiber accounted for 9.12 percent in 1976, 12.3 percent in 1977, 18.9 percent in 1978, 15.3 percent in 1979, 22.9 percent in 1980, 18.9 percent in 1981, and 23.5 percent in 1982 of the fiber used in CertainTeed's Santa Clara plant. Hartman's charts were not attached to Spielman's declaration.
Spielman opined he had seen no evidence that CertainTeed's Santa Clara plant released harmful levels of asbestos to the surrounding environment or exposed Dean to asbestos at a higher level than the surrounding community. Spielman believed Dean's exposure to asbestos from CertainTeed's plant would not be considered "significant from an industrial hygiene standpoint." Dean lived and worked approximately four to seven miles away from the plant. Thus, even if he did inhale asbestos fibers from the plant, he would not have done so at levels greater than ambient (background) community levels. According to Spielman, there was no evidence that Dean breathed in air contaminated with Calaveras asbestos fibers above ambient community levels.
3. CertainTeed's Motion for Summary Judgment
a. The Motion
CertainTeed also moved for summary judgment, arguing appellants' claims rested on the "unprovable factual assertion that asbestos fibers 'drifted' out of the plant premises, floated several miles through the air and landed in Decedent's [(Dean's)] lungs while he was in his home, place of work, or moving vehicle, causing him to be exposed to asbestos at sufficient quantities to contribute to the cause of his mesothelioma." CertainTeed further argued appellants' arguments were premised on the "dubious legal contention" that it owed a duty to individuals who lived or worked some distance away from its plant, citing to Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15 (Campbell), a case that was later overruled by Kesner v. Superior Court (2016) 1 Cal.5th 1132 (Kesner). CertainTeed insisted it was undisputed that Dean was never physically present inside its Santa Clara plant.
Kesner had not yet been decided at the time Calaveras and CertainTeed moved for summary judgment.
In the alternative, CertainTeed argued summary adjudication of appellants' product liability related claims should be granted in its favor, because appellants failed to allege asbestos exposure from CertainTeed product. It also argued there was no evidence it acted with malice or conscious disregard toward Dean, so appellants' claim of punitive damages also warranted summary adjudication.
b. Stephen Zemba's Declaration
Zemba was also retained by CertainTeed to prepare a report summarizing his findings regarding outdoor air concentrations of asbestos fibers emanating from CertainTeed's Santa Clara plant. The declaration prepared by Zemba for CertainTeed echoed the findings in his declaration prepared for Calaveras. Zemba concluded CertainTeed may have been responsible for less than 1 percent of the exposure to airborne asbestos experienced by those living and working even closer than Dean was to the Santa Clara plant. Like Calaveras, CertainTeed did not attach any supporting documents to Zemba's declaration, including the studies or data that he relied on to reach his opinion.
c. Kyle Dotson's Declaration
CertainTeed retained Kyle Dotson, an industrial hygienist. Dotson reviewed numerous documents in connection with the case, including the declaration prepared by Zemba. Dotson summarized Zemba's findings, noting that Zemba had concluded that CertainTeed may have been responsible for less than 1 percent of the airborne asbestos experienced by those living and working even closer to CertainTeed's Santa Clara plant than Dean had lived.
Dotson calculated, based on "24-hour per day exposure data from the major studies in the scientific literature," that a person of Dean's age at the time of his diagnosis would have had an estimated asbestos cumulative exposure from the natural ambient environment of 0.14 to 0.28 fiber/cc a year. Dotson asserted that the available industrial hygiene and epidemiology data did not support finding a health risk from such low levels of asbestos exposure.
4. Appellants' Opposition to Respondents' Motions for Summary Judgment
a. Appellants' Opposition to Calaveras's Motion for Summary Judgment and Their Experts' Declarations
Appellants opposed Calaveras's motion for summary judgment. They objected to the Calaveras's expert declarations, arguing the experts lacked foundation for their opinions, because they did not explain their methodology, attach the scientific studies and evidence upon which they based their opinions, and did not sufficiently describe how they reached their conclusions.
Appellants also opined that even if respondents had met their burden on summary judgment, appellants had provided sufficient evidence to give rise to a triable issue of material fact that Dean had been exposed to Calaveras asbestos, and his exposure to the asbestos had increased his risk of developing disease. Appellants relied on findings made by David Mitchell, a geoscientist specializing in air modeling and air pollution. Based on his air dispersion modeling technique, Mitchell opined that Dean would have breathed in asbestos concentrations "over 10 to over 1800 times the average background concentration" of asbestos at the time. Kenneth Garza, an industrial hygienist, confirmed Mitchell's conclusions. In part, Garza relied on a declaration prepared by Kenneth Cohen, an industrial hygienist who had evaluated the amount of airborne asbestos emitted from CertainTeed's Santa Clara plant in a separate, unrelated case. Appellants further relied on an expert declaration prepared by Dr. Barry Horn, who opined that assuming 9 to 24 percent of the asbestos in the ambient air where Dean lived and worked originated from a certain supplier to CertainTeed's plant, Dean's exposure to that asbestos would have also been a substantial factor in increasing his risk of mesothelioma.
Appellants attached the declaration by Cohen, which had been prepared for the case of Joseph Sawaya v. Advocate Mines Limited et al. (Super. Ct. S.F., 2008, No. 274511). CertainTeed was a defendant in that lawsuit, and airborne asbestos emissions from CertainTeed's Santa Clara plant were also at issue in the Sawaya case. Cohen declared there was no dispute that asbestos fibers can remain suspended in the air for substantial periods of time. According to Cohen, he had reviewed pertinent excerpts of CertainTeed's responses to interrogatories in the Sawaya case and had concluded that CertainTeed declared that from 1962 to 1992 it produced asbestos cement pipe in its Santa Clara plant that contained up to 20 percent of asbestos by weight.
Cohen also reviewed documents from the EPA and the State of California Department of Health Services which outlined source points of asbestos-containing material in the air, including the way asbestos dust was transported, the deposit of asbestos waste slurry, and CertainTeed's practice of permitting wet asbestos waste slurry to dry before transport to a landfill. Cohen also reviewed newspaper articles and other declarations of witnesses and experts in the Sawaya case and concluded CertainTeed's Santa Clara plant's emissions had an asbestos concentration ranging from "20 to 100 asbestos fibers per cubic centimeter" at its point of emission. Cohen also reviewed deposition excerpts of CertainTeed employees who recounted the Santa Clara plant's operations, such as the creation of visible asbestos dust from manufacturing processes and the general process from which asbestos waste and slurry were discharged and removed from the facility.
Cohen concluded that following his review of the information and documents prepared in connection with the Sawaya case, he was certain that asbestos-containing dust emitted from CertainTeed's Santa Clara plant, became airborne, were transported to the Sawaya plaintiff's home and workplace, and exposed the Sawaya plaintiff to asbestos and increasing his risk of contracting mesothelioma.
Lastly, in its opposition to Calaveras's motion for summary judgment, appellants argued Calaveras's placement of OSHA-mandated warnings on its asbestos bags did not defeat its product liability and failure to warn claims.
b. Appellants' Opposition to CertainTeed's Motion for Summary Judgment
Appellants also opposed CertainTeed's motion for summary judgment. Appellants opined first that they had provided sufficient evidence to give rise to a triable issue of material fact that Dean had been exposed to asbestos from CertainTeed's Santa Clara plant. Like their opposition to Calaveras's motion for summary judgment, appellants cited to findings made by David Mitchell, Kenneth Garza, and Dr. Barry Horn.
Appellants also claimed that there was evidence that as early as 1962, CertainTeed knew that asbestos dust exposure presented a health hazard, yet did not take any action to limit the amount of asbestos dust its plant emitted into the air throughout the 1970s. In support of this contention, appellants cited to an interrogatory response made by CertainTeed in an unrelated lawsuit.
Like it did with Calaveras, appellants also claimed CertainTeed's experts' declarations were inadmissible. Appellants insisted Zemba did not lay a foundation for his educational background sufficient to permit him to opine about the atmospheric dispersion of asbestos. Appellants also claimed Zemba failed to explain how he reached his conclusions. Similarly, appellants argued Dotson's conclusions were unsupported, pointing to the fact that he did not provide information about his sources or what data he precisely relied on when drawing his conclusions.
Appellants also insisted CertainTeed's reliance on Campbell, supra, 206 Cal.App.4th 15 was unwarranted. Appellants opined that Campbell was a take-home exposure case that involved workers who allegedly brought home asbestos fibers on their clothing and personage. In contrast, the situation presented here did not involve take-home exposure; it involved direct exposure.
5. Respondents' Evidentiary Objections
Calaveras objected to the evidence submitted by appellants. Calaveras argued Garza's declaration impermissibly relied wholesale on the declaration prepared by Cohen in an unrelated matter. Calaveras also opined that Cohen's declaration was flawed and based on facts unrelated to Calaveras. Moreover, Calaveras levied objections to the declarations prepared by Dr. Horn and Mitchell. Calaveras argued that Dr. Horn and Mitchell based their conclusions off of Cohen's flawed conclusions, which were also adopted by Garza.
Like Calaveras, CertainTeed also objected to appellants' evidence. CertainTeed argued Cohen's, Mitchell's, Dr. Horn's, and Garza's declarations were all inadmissible. CertainTeed argued Cohen had never visited CertainTeed's Santa Clara facility, and his declaration thus lacked foundation and was based on hearsay. CertainTeed argued Mitchell and Dr. Horn's declarations were based on speculation.
6. The Trial Court's Ruling
Following a hearing, the trial court adopted a tentative ruling granting Calaveras's and CertainTeed's motions for summary judgment on October 9, 2015.
a. CertainTeed's Motion
The trial court addressed each motion separately. First, the trial court overruled all of appellants' objections to evidence and sustained CertainTeed's objections to appellants' evidence. Thereafter, it addressed each of appellants' causes of action.
With respect to the causes of action for negligence and failure to warn (premises liability), the trial court concluded Campbell, supra, 206 Cal.App.4th 15 was instructive. The court noted the present case did not involve secondary take-home exposure to asbestos. However, the court surmised the connection between CertainTeed and Dean was even more attenuated than the connection between the decedent and the employer in the take-home scenario at issue in Campbell. Thus, the court concluded that CertainTeed did not owe Dean a duty. Alternatively, the court concluded that CertainTeed had met its initial burden to show asbestos from its plant did not harm Dean. The burden thus shifted to appellants to show a triable issue of material fact, but appellants' expert declarations were deficient and failed to do so. Appellants' expert declarations all relied on the declaration of another expert, Cohen, who had prepared a declaration for an unrelated lawsuit. Thus, the court held that appellants' expert declarations were not competent evidence.
Next, the trial court concluded appellants could not maintain their cause of action for breach of express and implied warranties, because there was no sale of goods from CertainTeed to Dean or appellants. Similarly, appellants' cause of action for strict liability also failed as a matter of law, because CertainTeed did not place any product on the market for use by Dean or appellants. Lastly, the trial court concluded appellants' fifth cause of action for negligent exercise of retained control was simply inapplicable to the facts of the present case.
The trial court granted CertainTeed's motion for summary judgment and found its alternative motion for summary adjudication moot.
b. Calaveras's Motion
Subsequently, the trial court addressed Calaveras's motion. First, the trial court overruled the majority of appellants' objections to Calaveras's evidence and sustained all of Calaveras's objections to appellants' evidence. Out of appellants' objections, the trial court sustained only one objection, which was to Spielman's opinion that there was no evidence Dean inhaled air contaminated with air containing Calaveras asbestos fibers.
Next, the court reasoned that there was no evidence that Calaveras had ties to Dean or to appellants, save for the fact that it had supplied asbestos to CertainTeed between the years 1976 and 1982. Thus, the court concluded appellants could not maintain their action against Calaveras for the same reasons why they could not maintain their action against CertainTeed. Chiefly, Calaveras had no duty and there was not a triable issue as to causation.
Thereafter, the court granted Calaveras's motion for summary judgment and found its alternative motion for summary adjudication moot.
DISCUSSION
1. Notice of Appeal
We first address the jurisdictional issue of whether appellants' notice of appeal, which was prematurely filed, is sufficient. After the trial court issued its order on respondents' respective motions for summary judgment, the parties stipulated to stay all proceedings related to the case pending the resolution of appellants' appeal of the trial court's grant of summary judgment in respondents' favor. Respondents submitted proposed judgments, and appellants filed a notice of appeal with respect to both Calaveras and CertainTeed on April 4, 2016.
The notice of appeal, however, was premature. At the time it was filed, the trial court had not yet signed the proposed judgments. On October 26, 2016, appellants' counsel wrote to the court and asked that the judgments be signed. Judgment was entered in favor of respondents on November 1, 2016.
"Generally, Courts of Appeal strictly adhere to the one final judgment rule. [Citation.] But we have discretion to entertain a premature appeal as long as a judgment was actually entered, there is no doubt concerning which ruling appellant seeks to have reviewed, and respondents were not misled to their prejudice." (Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69.) Here there is no indication respondents were confused as to which judgments appellants sought to appeal. Nor do we believe they have been prejudiced. We see no purpose in penalizing appellants for their premature appeal, and we exercise our discretion to consider the matter on the merits.
2. The Trial Court's Evidentiary Rulings
Appellants argue the trial court's evidentiary rulings were an abuse of discretion, because it issued a blanket ruling overruling nearly all of appellants' evidentiary objections to respondents' evidence and sustained all of respondents' objections to appellants' evidence. Appellants also argue that on the merits, the evidentiary rulings made by the trial court were erroneous. As we explain, we do not believe the trial court's perfunctory ruling on the evidentiary objections was per se an abuse of discretion. However, we agree with appellants that the trial court erred in overruling their objections to respondents' evidence.
a. Standard of Review
"[A]ppellate courts 'review the trial court's evidentiary rulings on summary judgment for abuse of discretion. [Citations.] As the part[ies] challenging the court's decision, it is [appellants'] burden to establish such an abuse, which we will find only if the trial court's order exceeds the bounds of reason.' " (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852 (Serri).)
b. The Blanket Ruling
Here, the trial court overruled nearly all of appellants' evidentiary objections to respondents' evidence. It also sustained all of respondents' objections to appellants' evidence. Appellants thus claim the court's evidentiary rulings were an abuse of discretion, and respondents' objections to evidence are all waived.
To support their waiver argument, appellants cite to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 (Nazir). In Nazir, the plaintiff's opposition to the defendants' summary judgment included 47 objections to the defendants' evidence, and the defendants' reply included 764 objections. (Id. at p. 254.) After it filed its order granting the defendants' motion for summary judgment, the trial made a blanket ruling that overruled the plaintiff's 47 objections, overruled one of the defendants' evidentiary objections, and sustained the remainder of the defendant's objections. (Id. at pp. 254-255.) On appeal, the court in Nazir noted that a trial court must expressly rule on individual objections, and if it does not do so the objections are deemed waived and the objected-to evidence is included in the record. (Id. at p. 255.) The Nazir court hesitated to call the trial court's brief ruling a "ruling," because it did not provide a meaningful basis for review and did not offer an explanation for the court's decisions. (Ibid.)
Furthermore, the Nazir court concluded that sustaining all but one of the defendants' evidentiary objections was a clear abuse of discretion, because there was no way the court could have sustained all the objections while guided and controlled by fixed legal principles. (Nazir, supra, 178 Cal.App.4th at p. 255.) In fact, some of the defendants' objections did not even assert a basis for their objection. (Ibid.) Other objections were to the plaintiff's testimony about his dates of employment, religion, skin color, and national origin. (Id. at p. 256.) Other objections did not quote the evidence objected to, objected to the plaintiff's brief and not the plaintiff's evidence, and were generally frivolous. (Id. at pp. 256-257.)
Appellants argue the evidentiary rulings contemplated in Nazir are analogous to the rulings in this case. Nazir, however, does not aid appellants. Nazir does not hold that all rulings sustaining multiple objections or overruling multiple objections at once are an abuse of discretion. As Nazir demonstrates, such rulings can be erroneous in certain circumstances. The circumstances of this case, however, are contrary to the situation presented in Nazir.
Here, respondents did not lodge an excessive amount of frivolous, unsubstantiated objections. Calaveras submitted three objections, two of which were grounded on the fact that it believed Cohen's declaration, prepared in connection with an unrelated case, was hearsay and could not be relied upon by appellants' experts—Dr. Horn, Garza, and Mitchell—in the present case. CertainTeed made 20 evidentiary objections, some of which also relied on its argument that Cohen's declaration was flawed. CertainTeed also argued that much of appellant's evidence, including the declarations made by Dr. Horn, Garza, and Mitchell, were speculative. Both respondents supported their objections with reasoned argument, and their objections were not clearly frivolous or unreasonable like the sustained objections in Nazir. Likewise, appellants themselves lodged a limited number of reasoned objections to CertainTeed and Calaveras's evidence.
Thus, we do not believe the trial court's blanket ruling sustaining and overruling the various evidentiary objections was an abuse of discretion. Appellants have not shown the sustained or overruled objections were clearly erroneous or frivolous, and we do not believe the number of objections here was so great that a blanket ruling clearly could not have been guided and controlled by fixed legal principles. (Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1447 [court abused its discretion when making blanket ruling sustaining 33 objections, including many of which that were meritless]; Serri, supra, 226 Cal.App.4th 830 [blanket ruling was abuse of discretion given number of objections and the fact that some were sustained in error].)
c. Respondents' Expert Declarations
Both respondents supported their respective motions for summary judgment with declarations prepared by several expert witnesses, including Zemba, Spielman, and Dotson. Appellants insist the declarations did not constitute sufficient evidence that their causes of action have no merit, because they were not accompanied with admissible evidence, the experts lacked a factual foundation for their opinions, and the experts failed to provide reasoned explanation for their conclusions.
Briefly, we summarize the principles underlying motions for summary judgment. "A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) "[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." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
To satisfy his or her burden of production, the party moving for summary judgment must support that motion "by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." (Code Civ. Proc., § 437c, subd. (b)(1).) Supporting affidavits and declarations "shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations." (Id., subd. (d).)
First, we address appellants' claim that respondents' expert declarations were deficient because they failed to attach the evidence their experts relied upon when reaching their conclusions. We disagree that failing to include the evidence relied on by experts with a motion for summary judgment automatically renders the expert's declaration inadmissible. The law requires only that the declarations set forth admissible evidence, not that the declarations must attach admissible evidence. (Code Civ. Proc., § 437c, subd. (d).)
People v. Vang (2011) 52 Cal.4th 1038, which appellants cite, is inapposite. Vang held that hypothetical questions posed to an expert witness must be rooted in the evidence of the case being tried. (Id. at pp. 1045-1046.) Vang did not address or contemplate the issue raised by appellants here: that on summary judgment, moving parties must attach the evidence their experts rely on when rendering their opinions. Cases are not authority for propositions not considered. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 374.) Thus, we disagree with appellants to the extent they claim respondents' expert declarations were per se inadmissible due to their failure to include admissible evidence.
Next, we address appellants' claim that respondents' expert declarations were not sufficiently supported by admissible evidence. After reviewing the declarations, we agree with appellants that the expert opinions relied on by respondents were deficient, because their declarations were without evidentiary support.
Generally, "[a]n expert declaration is admissible to support or defeat summary judgment if the expert's testimony would be admissible at trial in accordance with Evidence Code section 720," and "[a]n expert may testify to an opinion on a subject 'that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' " (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.)
We first address Zemba's two declarations, which were made on behalf of both respondents. Preliminarily, we agree with respondents that Zemba's opinion was the proper subject of an expert opinion testimony. However, as we indicated, declarations must be supported by admissible evidence. In his declaration, Zemba asserted he had reviewed "industrial hygiene data that recorded asbestos dust levels inside and in the vicinity of CertainTeed's former Santa Clara facility." This referenced data was not included with the respondents' respective motions for summary judgment, and there was no declaration formalizing the data as a business record and no declaration prepared by the industrial hygienists who collected the information. Similarly, Zemba's reference to "EPA models and local wind data," the data he used of "living and working habits of individuals during the 1962 through 1982 period," and his claim that CertainTeed was one of many asbestos sources in the region including naturally occurring serpentine rock, were all based on studies that were not submitted to the court.
In sum, Zemba's opinion was derived from hearsay. By itself, the fact that Zemba relied on hearsay does not render his opinion automatically inadmissible. "[H]earsay information of a type reasonably relied upon by professionals in the field in forming an opinion on the subject may be used to support an expert opinion, even though not admissible in court." (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524 (Korsak).) Thus, we agree with respondents that some of appellants' objections to Zemba's declaration were properly overruled. Zemba's reliance on "EPA models and local wind data," his inputs on living and working habits of individuals working and living in the aforementioned time frame, and the existence of other naturally occurring and manufactured sources of asbestos, all appear to be based on studies and data that experts in his field typically rely upon.
The problem arises from the more case-specific hearsay relied on by Zemba. "Although experts may properly rely on hearsay in forming their opinions, they may not relate the out-of-court statements of another as independent proof of the fact." (Korsak, supra, 2 Cal.App.4th at pp. 1524-1525.) Zemba did not rely only on data and information reasonably relied on by others in his field. He also considered specific data related to CertainTeed's Santa Clara plant, which he vaguely described as "industrial hygiene data that recorded asbestos dust levels inside and in the vicinity of CertainTeed's former Santa Clara facility as well as other information about equipment, procedures, and activities at CertainTeed's former Santa Clara facility." From his modeling, which used the data he had gleaned about CertainTeed's facility, Zemba opined CertainTeed contributed less than 1 percent to Dean's overall background exposure to asbestos. In essence, Zemba related out of court statements about CertainTeed's plant as proof of facts.
We find Garibay v. Hemmat (2008) 161 Cal.App.4th 735 instructive. Garibay was a medical malpractice case where summary judgment was entered in favor of the defendant physician. (Id. at p. 737.) The defendant's motion for summary judgment relied exclusively on the opinion of an expert physician who opined the defendant had met the standard of care. The expert physician derived his opinion from facts gleaned from the plaintiff's hospital and medical records, which were not properly before the court. (Id. at p. 740.) The court noted that hospital records can properly be used as a basis for a medical opinion. However, the expert had no personal knowledge of the underlying facts of the case. Thus, the appellate court reversed the trial court's grant of summary judgment, finding the motion lacked an evidentiary basis. The court concluded the expert's declaration of alleged facts had no evidentiary basis, and his opinion had no evidentiary value because it was based on assumptions of fact without evidentiary support. (Id. at p. 743.)
Like in Garibay, the expert opinion rendered by Zemba was derived from documents and data that are probably admissible. As we indicated, Zemba opaquely stated in his declaration that he considered the "historical hygiene data that recorded asbestos dust levels inside and in the vicinity of CertainTeed's former Santa Clara facility as well as other information about equipment, procedures, and activities at CertainTeed's former Santa Clara facility." For example, it is possible that the "industrial hygiene data" that Zemba referenced in his declaration could be admissible from business records. The same goes for whatever "other information" Zemba relied on pertaining to the equipment, facility, and other activities at CertainTeed's Santa Clara plant. There is, however, no such data included with CertainTeed's motion. Nor is there a sworn declaration from a CertainTeed employee or anyone else with knowledge of the Santa Clara plant's practices and procedures related to asbestos. The evidence is not in the record, and, importantly, it is not described in sufficient terms to permit the trial court to evaluate its reliability. Zemba's opinion was thus based on facts that had no evidentiary support.
Furthermore, " '[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.' " (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.) An " 'expert opinion based on speculation nor conjecture is inadmissible' " (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770), and " '[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.' " (Id. at p. 771.) "[A]n expert's opinion based on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors [citation], has no evidentiary value [citation] and may be excluded from evidence." (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.)
In this case, Zemba's opinion was vague about what inputs he had employed in his modeling. He did not explain what kind of "industrial hygiene data" he had analyzed or what information he had used when he considered the practices employed by CertainTeed at its Santa Clara plant. All Zemba said was that he had used "other information" about the Santa Clara plant. Moreover, he did not explain what kind of data he analyzed when he considered the living and working habits of individuals during the relevant time frame. From his declaration, it is unclear how Zemba reached the conclusion that he reached.
For these reasons, we agree that appellants' objection to Zemba's opinion that CertainTeed contributed less than 1 percent of the ambient background airborne asbestos should have been sustained. And for the same reasons, the objections to Zemba's declaration prepared for Calaveras, which was largely the same as the declaration he provided on behalf of CertainTeed, should have also been sustained. Similarly, Dotson's declarations, which relied on Zemba's calculations, also lacked evidentiary support in the record.
Lastly, appellants also object to the declaration provided by Calaveras's expert industrial hygienist, Spielman. Like the opinion rendered by Zemba, Spielman derived his opinions from facts based on evidence outside of the record. Spielman stated he reviewed charts prepared by a former CertainTeed employee detailing the amount of asbestos fiber used at the Santa Clara plant. From these charts, Spielman calculated the percentage of CertainTeed fibers that were supplied by Calaveras.
Spielman's declaration suffers from the same deficiencies as Zemba's and Dotson's respective declarations. Again, the factual assumptions utilized by Spielman to formulate his opinion lacked evidentiary support. The data recounted by the CertainTeed employee is nowhere to be found in the record. Spielman's declaration also provides no information as to how this employee gathered the statistics at issue.
For these reasons, we find the trial court abused its discretion when it overruled appellants' objections to respondents' expert declarations.
3. The Trial Court's Ruling on CertainTeed and Calaveras's Summary Judgment Motions
Having addressed the errors with the trial court's evidentiary ruling with respect to respondents' expert declarations, we now turn to the merits of their respective summary judgment motions.
a. Applicable Principles and Standard of Review
We reviewed the applicable law governing summary judgments in the preceding portion of our opinion. We briefly reiterate the principles here.
As the appellate court, we review the trial court's ruling on summary judgment de novo. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.) As we previously stated, "[a] defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) "[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." (Aguilar, supra, 25 Cal.4th at p. 850.) If the party moving for summary judgment carries his or her burden of production, the burden is shifted to the opposing party to make his or her prima facie showing of an existence of a triable issue of material fact. (Ibid.)
b. Negligence and Premises Liability
i. Existence of Duty
CertainTeed argues the trial court correctly determined it met its initial burden of production to show appellants could not establish CertainTeed had a duty to Dean. Appellants, however argue the trial court erred when it determined as a matter of law that respondents had no duty based on Campbell, supra, 206 Cal.App.4th 15.
Calaveras does not address this argument in its respondent's brief. The nonexistence or existence of duty between CertainTeed and Dean, however, is pertinent to appellants' causes of action for negligence and premises liability against Calaveras.
"An essential element of an action for negligence is the existence of a duty of care to the plaintiff." (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 838.) Thus, absent the existence of duty, appellants cannot maintain their causes of action against CertainTeed and Calaveras for negligence and premises liability. The existence and scope of duty is a matter of law that is to be decided by a court. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) Thus, it is generally " 'amenable to resolution by summary judgment.' " (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004.) We review the existence of duty de novo. (Kesner, supra, 1 Cal.5th at p. 1142.)
a. Overview of Campbell and Kesner
Below, CertainTeed argued that it had no duty toward Dean and thus could not be held liable for his injury under his negligence-related claims. The trial court agreed with CertainTeed, relying on Campbell, supra, 206 Cal.App.4th 15. Campbell held that a property owner had "no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner's business." (Id. at p. 34.) The trial court here concluded the connection between Dean and CertainTeed was even more attenuated than the connection contemplated in Campbell and found no duty.
The trial court's rulings on respondents' motions for summary judgment preceded Kesner, supra, 1 Cal.5th 1132, which disapproved Campbell. Kesner, like Campbell, considered whether an employer had a duty to an employee's household to prevent take-home asbestos exposure on either a premises liability or negligence theory. The Kesner court began by acknowledging that Civil Code section 1714, subdivision (a) provides in pertinent part: "Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself." Thus, Kesner held that its role was not to determine " 'whether a new duty should be created, but whether an exception to Civil Code section 1714 . . . should be created.' " (Kesner, supra, at p. 1143.)
In so doing, the Kesner court looked to the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108, which included "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Id. at p. 113; Kesner, supra, 1 Cal.5th at p. 1143.)
Kesner generally noted the Rowland factors fall into two categories. "Three factors—foreseeability, certainty, and the connection between the plaintiff and the defendant—address the foreseeability of the relevant injury, while the other four—moral blame, preventing future harm, burden, and availability of insurance—take into account public policy concerns that might support excluding certain kinds of plaintiffs or injuries from relief." (Kesner, supra, 1 Cal.5th at p. 1145.) Kesner held the injury in question was generally foreseeable and the first three factors weighed in favor of finding duty. (Ibid.) It also rejected the defendant's claims that public policy concerns weighed in favor of not finding duty. (Id. at pp. 1153-1155.)
Kesner acknowledged the defendant's concerns over the number of claims that may arise from incidental exposure. (Kesner, supra, 1 Cal.5th at p. 1154.) However, the court held the concerns did not give rise to a need for categorical exclusion of all liability for foreseeable take-home exposure. Rather, it pointed to a need for a limitation of the scope of duty. Thus, Kesner held the duty of a property owner to prevent take-home exposure extended only to members of the worker's household, "i.e., persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time." (Id. at pp. 1154-1155.) Kesner noted that "[t]o be sure, there are other persons who may have reason to believe they were exposed to significant quantities of asbestos by repeatedly spending time in an enclosed space with an asbestos worker—for example, a regular carpool companion. But any duty rule will necessarily exclude some individuals who, as a causal matter, were harmed by the conduct of potential defendants. By drawing the line at members of a household, we limit potential plaintiffs to an identifiable category of persons who, as a class, are most likely to have suffered a legitimate, compensable harm." (Id. at p. 1155.)
b. CertainTeed's Arguments on Duty
In their reply brief, appellants claim CertainTeed has forfeited its arguments on duty, because in its motion for summary judgment it relied on Campbell and argued there was no established duty between it and Dean. Appellants insist that CertainTeed's arguments on appeal—that Kesner does not compel a contrary result—now acknowledges the existence of a duty and offers arguments that were not presented in its moving papers below.
Typically, "[a] moving party is not entitled to summary judgment on a ground not raised in its motion, even if that ground would have been sufficient." (San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1545.) However, that is not what happened here. Contrary to appellants' claims, CertainTeed's argument on appeal is the same as its argument below. CertainTeed cited to Campbell in its motion for summary judgment, but it did so in reference to its analysis of whether an exception to the general duty set forth under Civil Code section 1714 should be created. In its motion for summary judgment, CertainTeed analyzed the Rowland factors and cited Campbell for the proposition that the connection alleged between Dean and itself here was even more attenuated than the take-home exposure alleged in Campbell. CertainTeed never argued below that duty never existed in the first place.
Thus, CertainTeed's analysis of the California Supreme Court's opinion in Kesner, which was decided after the motion for summary judgment was granted in this case, does not constitute a new ground for summary judgment or a new argument not raised below.
c. The Existence of Duty
Citing both to Kesner and the Rowland factors, CertainTeed insists it had no duty to Dean as a matter of law. As we explain in further detail below, we disagree.
First, we disagree with the notion that the "take-home exposure" contemplated in cases like Campbell and Kesner is somehow more dangerous or risky than the airborne exposure to asbestos alleged by appellants here. To that extent, we find the trial court's reliance on Campbell—notwithstanding the fact that Campbell was later disapproved of in Kesner—to be logically troubling. Take-home exposure and airborne exposure are two different methods to being exposed to a harmful substance. It is certainly not clear, as the trial court assumed, that one method of exposure is more serious and life-threatening than the other. We find Kesner relevant only to the extent it applies the Rowland factors to determine whether an exception to the general duty of care set forth under Civil Code section 1714 should be created.
Moreover, we note that there is language in Kesner suggesting that landowners that use asbestos and manufacturers of asbestos-containing product have a duty of care that extends beyond the premises of their facility. Kesner also addressed the theory of liability based on premises liability, which is " ' "grounded in the possession of the premises and the attendant right to control and manage the premises." ' " (Kesner, supra, 1 Cal.5th at p. 1158.) Duty arising from control and possession of premises is based on the same concept of standard of care arising in negligence cases—in other words, the Rowland factors are applicable. (Ibid.) Kesner reiterated that physical or spatial boundaries do not circumscribe the scope of a landowner's liability. (Id. at p. 1159.) Landowners have a duty of care to those not on the landowner's premises to not expose these individuals to a risk of injury if the property subjects them to an unreasonable risk of injury. (Ibid.) California courts have specifically found "landowners have a duty to prevent hazardous natural conditions arising on their property from escaping and causing injury to adjacent property." (Id. at p. 1160.) Likewise, it seems apparent that landowners also have a duty to prevent hazardous materials from escaping their property and causing injury to persons.
More importantly, we find CertainTeed has not met their burden on summary judgment to show they had no duty of care to Dean. As we have stated, duty is a legal question. (Avila v. Citrus Community College Dist., supra, 38 Cal.4th at p. 161.) However, it is a legal question that must be decided against a "factual background" that "is a function of a particular case's procedural posture." (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214.) " 'Although the determination of duty is primarily a question of law, its existence may frequently rest upon the foreseeability of the risk of harm. [Citations.] Foreseeability may be decided as a question of law only if, under the undisputed facts, there is no room for a reasonable difference of opinion.' " (Silva v. Union Pacific Railroad Co. (2000) 85 Cal.App.4th 1024, 1029.)
In addressing the first set of Rowland factors relating to foreseeability, certainty of harm and the connection between the plaintiff and the defendant, CertainTeed maintains it is "categorically unforeseeable . . . that there actually was an increased risk to [Dean] from living and working four to seven miles from CertainTeed's Santa Clara plant." As we explain, we disagree with CertainTeed's assessment.
The first Rowland factor, which the Kesner court described as the "most important factor," is whether the injury in question was foreseeable. (Kesner, supra, 1 Cal.5th at p. 1145.) " '[T]he court's task in determining duty "is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed . . . ." ' " (Ibid.) " ' "[F]oreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.". . . [I]t is settled that what is required to be foreseeable is the general character of the event or harm—e.g., being struck by a car while standing in a phone booth—not its precise nature or manner of occurrence.' " (Ibid.)
CertainTeed maintains the connection existing between CertainTeed's use of asbestos at its Santa Clara plant is so attenuated from Dean's subsequent onset of mesothelioma that it merely amounts to speculation and conjecture. CertainTeed also claims that "[n]o scientific or medical study anywhere at any time has attributed asbestos-related disease to working and living so far from a manufacturing facility that used asbestos." Furthermore, CertainTeed insists that appellants could offer no evidence that living and working miles away from the Santa Clara plant could increase a person's risk of developing mesothelioma based off their responses to discovery requests.
We have reviewed CertainTeed and appellants' separate statements of undisputed fact. Nowhere in CertainTeed's separate statement does it cite to evidence that shows no scientific or medical studies attribute asbestos-related disease to living and working several miles away from a facility that uses asbestos. CertainTeed also does not cite to evidence showing that appellants would be otherwise unable to prove their claims. A plaintiff's absence of evidence on a crucial element of their claim can be grounds for granting a defendant's motion for summary judgment. However, pointing to a lack of evidence is insufficient to meet a moving defendant's burden on a motion for summary judgment. CertainTeed must show that appellants do not possess and cannot reasonably obtain needed evidence. (Aguilar, supra, 25 Cal.4th at p. 854.)
Moreover, CertainTeed fails to provide evidence supporting its claim that the foreseeability of injury to Dean was minimal at best. CertainTeed's motion relied heavily on the Zemba and Dotson's conclusions, who gave opinions on the percentage of ambient asbestos in the environment that could be attributed to CertainTeed's Santa Clara plant. As we previously held, these expert opinions both lacked sufficient evidentiary foundations. Aside from Zemba and Dotson's opinions, CertainTeed did not provide any evidence quantifying the amount of asbestos used at its Santa Clara plant, explaining whether the plant was known to spread airborne asbestos, explaining whether airborne asbestos can be carried several miles away from its origin point, and assessing the harmful effects of airborne asbestos on the general community.
Thus, we find CertainTeed fails to meet its burden to negate the existence of a duty of care. Having offered no admissible evidence about the foreseeability of the injury sustained by Dean, we cannot in turn weigh and consider the Rowland factors and determine the existence or nonexistence of duty. Although duty is a legal question, it is one that still relies on facts. And the facts here are too bare to allow us to provide reasoned analysis of the issue.
ii. Lack of Causation
Alternatively, CertainTeed claims the trial court correctly found it had met its burden to demonstrate there was no triable issue of material fact 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 v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103.) "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." (Ibid.) In so doing, appellants are not "expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber." (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 976.)
CertainTeed relies on the declarations provided by Zemba and Dotson in arguing it met its burden to demonstrate lack of causation. As we have found their declarations to be speculative and lacking foundation, we do not consider them in our analysis. In the alternative, CertainTeed argues appellants' own factually devoid discovery responses shifted the burden to appellants to demonstrate the existence of a triable issue of material fact.
CertainTeed, however, merely points to gaps in appellants' discovery responses and their failure to provide information such as epidemiological studies or data points showing higher frequencies of asbestos-related diseases among individuals living or working four or more miles from the Santa Clara plant. This does not meet CertainTeed's burden. "Summary judgment law in [California] . . . continues to require a defendant moving for summary judgment to present evidence, not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Aguilar, supra, 25 Cal.4th at p. 854, fn. omitted, italics added.) Again, CertainTeed does not present evidence that appellants would be unable to obtain the requisite evidence establishing causation.
Nor are we swayed by CertainTeed's argument that it is unprovable for appellants to show that specific asbestos fibers from its plant caused Dean's cancer. Appellants must show that asbestos fibers from CertainTeed's plant were, by a reasonable medical probability, a substantial factor in causing Dean's mesothelioma. (McGonnell v. Kaiser Gypsum Co., supra, 98 Cal.App.4th at p. 1103.) It may be the case that appellants are unable to meet this burden. CertainTeed, however, has not provided sufficient evidence showing that appellants cannot do so. In sum, we find CertainTeed did not meet its burden to show lack of causation.
We next turn to whether Calaveras established there was no triable issue of material fact as to causation. On appeal, Calaveras argues the trial court correctly determined appellants failed to meet their burden to establish causation. Like with CertainTeed, however, the onus was on Calaveras, not appellants, to provide evidence that appellants could not prove causation. Until Calaveras had met its burden as the moving party for summary judgment, the burden would not shift to appellants to provide evidence sufficient to create a triable issue of material fact.
As we previously noted, Calaveras did not discuss the duty issue in its respondent's brief. Instead, it focused its arguments on whether it had met its burden to demonstrate there was no triable issue as to causation.
Thus, for the same reasons that CertainTeed failed to meet their burden as the moving party for summary judgment, we find Calaveras has similarly failed to meet their burden as the moving party. If we excise and disregard the inadmissible evidence provided by Zemba and Spielman, we are left with no evidence conclusively negating appellants' claim of negligence.
iii. Summary
In sum, we find respondents failed to meet their burden of production in their motions for summary judgment with respect to the causes of action for negligence and premises liability.
Based on our conclusion, we need not examine appellants' argument that the trial court erred in sustaining CertainTeed and Calaveras's objections to their evidence. Since CertainTeed and Calaveras did not meet their burden of production as the moving parties, the burden did not shift to appellants to demonstrate a triable issue of material fact.
c. Strict Liability
Lastly, appellants argue the trial court erred in concluding their claims of strict product liability failed as a matter of law. The trial court concluded appellants' strict liability cause of action against CertainTeed had no merit, because CertainTeed did not place a product on the market for use by Dean. In its ruling, the court did not specifically discuss appellants' product liability claim as to Calaveras, but it did state that it granted Calaveras's motion on the same grounds as CertainTeed's motion. As we explain, we find the trial court's legal conclusion was erroneous. Strict product liability is not limited only to end users of consumer products.
In Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, the California Supreme Court held that a "manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being." (Id. at p. 62.)
"[U]nder the stream-of-commerce approach to strict liability[,] no precise legal relationship to the member of the enterprise causing the defect to be manufactured or to the member most closely connected with the customer is required before the courts will impose strict liability. It is the defendant's participatory connection, for his personal profit or other benefit, with the injury-producing product and with the enterprise that created consumer demand for and reliance upon the product . . . which calls for imposition of strict liability." (Kasel v. Remington Arms Co. (1972) 24 Cal.App.3d 711, 725.)
For example, a business that buys and installs a defective product for the end user may be subject to strict products liability. (Hernandezcueva v. E.F. Brady Co., Inc. (2015) 243 Cal.App.4th 249, 252.) In Hernandezcueva, a janitor alleged a cause of action for strict liability against a subcontractor that engaged in drywall installation using asbestos-containing products. The janitor claimed he developed mesothelioma as a result of his exposure to the products used. The appellate court reversed the grant of nonsuit in favor of the subcontractor, arguing the janitor had presented sufficient evidence the subcontractor was engaged in the stream of commerce relating to the defective product, asbestos. (Id. at pp. 262-264.)
California courts have also held that strict products liability can be invoked by bystanders who are neither the purchasers nor users of the allegedly defective product. In Elmore v. American Motors Corp. (1969) 70 Cal.2d 578 (Elmore), our Supreme Court reversed a grant of nonsuit in favor of the manufacturer and seller of the car for strict products liability in a case where the plaintiff suffered injuries when the car's defective transmission failed, causing the car to collide with the plaintiff's car. (Id. at pp. 585-587.) Elmore held that strict products liability applies to bystanders when "injury to bystanders from the defect is reasonably foreseeable." (Id. at p. 586.)
Strict products liability has also been applied in cases where injury occurred before the defective product reached the consumer. In Nelson v. Superior Court (2006) 144 Cal.App.4th 689 (Nelson), the plaintiff asserted a strict products liability claim against a gasoline refiner. The plaintiff alleged the refiner's fuel had a hazardous additive. The fuel was stored in filling stations that were not operated by the refiner, and the fuel ultimately leaked from the tanks, causing contamination to the plaintiff's groundwater. (Id. at pp. 691-693.) The appellate court noted that state law does not restrict strict products liability to only those cases arising from the sale of goods. (Id. at p. 695.) Furthermore, state law permitted bystanders to recover in strict liability. (Id. at p. 696.) The appellate court reversed the grant of summary judgment in favor of the gasoline refiner, finding the refiner was subject to liability under a bystander theory, because it was reasonably foreseeable that gasoline would be stored at a gas station while it is on the market. (Id. at p. 698.)
Like the situations contemplated in Elmore and Nelson, CertainTeed and Calaveras may be subject to liability under a bystander theory. Appellants' claim is that CertainTeed's manufacture of cement pipes using asbestos contaminated the air with asbestos, causing his injury. As the supplier of asbestos to CertainTeed, Calaveras is also subject to liability. The relevant question is whether CertainTeed and Calaveras were within the stream of commerce for the asbestos-containing cement pipes that exposed Dean to asbestos. (Petitpas v. Ford Motor Co. (2017) 13 Cal.App.5th 261, 271-272.) Here, the answer to the question is yes. Both CertainTeed and Calaveras have participated in the stream-of-commerce leading to injury from the allegedly defective product, asbestos. The remaining question is whether the injury to Dean was reasonably foreseeable, and, for the same reasons as discussed in the previous section of our opinion regarding duty, respondents do not provide sufficient admissible evidence to show a lack of foreseeability. (Elmore, supra, 70 Cal.2d at pp. 586-587; Nelson, supra, 144 Cal.App.4th at p. 698.)
As we have explained, the conclusions reached by respondents' experts lacked evidentiary support in the record. As a result, we conclude respondents failed to meet their burden to show appellants' cause of action for strict liability has no merit. They have not presented sufficient evidence showing injury to Dean was not reasonably foreseeable. Thus, the burden did not shift to appellants to demonstrate a triable issue of material fact on the cause of action for strict products liability.
d. Other Causes of Action
Below, appellants also alleged causes of action for breach of express and implied warranties and negligent exercise of retained control. The trial court granted summary judgment in favor of respondents after finding these causes of action could not be maintained by appellants. It then found their respective motions for summary adjudication to be moot. Appellants, however, have not addressed these additional causes of action in their opening brief, aside from briefly stating in their opening brief that these "two claims [are] not at issue in this appeal." Issues not raised in an appellant's opening brief are deemed waived or abandoned. (Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282.) Therefore, we reverse the summary judgment as to respondents but find they are both entitled to summary adjudication as to appellants' causes of action for breach of express and implied warranties and negligent exercise of retained control.
Appellants also briefly note in their opening brief that the trial court did not address their claim for punitive damages against both respondents. Most likely, the trial court did not reach the issue of punitive damages, because it concluded summary judgment was proper and neither respondent was liable for any damages. Because the trial court did not reach the issue of punitive damages in the first instance, we believe it is best that it be addressed by the court following remand.
DISPOSITION
The judgment is reversed. On remand, CertainTeed and Calaveras are entitled to summary adjudication on the causes of action for breach of express and implied warranties and negligent exercise of retained control. Appellants are entitled to their costs on appeal.
/s/_________
Premo, J. I CONCUR: /s/_________
Greenwood, P.J. Grover, J., Concurring
The majority concludes that CertainTeed failed to meet its burden to negate a duty of care for lack of admissible evidence regarding the foreseeability of the plaintiff's injury. (Op. at pp. 31-32.) I believe the inquiry is not so limited. In Kesner v. Superior Court (2016) 1 Cal.5th 1132 (Kesner), our Supreme Court made clear that in determining the existence of duty, the focus is not " ' "whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct[.]" ' " (Id. at p. 1145.) Rather, our task is " ' "to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed." ' " (Ibid.)
In addressing whether household members exposed to asbestos carried home on workers' clothing and personal effects should be categorically excluded from the duty of employers and premises owners to exercise ordinary care in the use of asbestos, our Supreme Court in Kesner explained that an exception to the duty of care should be judicially created " 'only where "clearly supported by public policy." ' " (Kesner, supra, 1 Cal.5th at p. 1143.) Thus, the factors in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland), including foreseeability, " 'are evaluated at a relatively broad level of factual generality.' " (Kesner, at p. 1143.) The Supreme Court explained: "By making exceptions to Civil Code section 1714's general duty of ordinary care only when foreseeability and policy considerations justify a categorical no-duty rule, we preserve the crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendant did not breach the duty of ordinary care, which in a jury trial is for the jury to make." (Id. at pp. 1143-1144.)
The Kesner court declined to categorically exclude a duty of reasonable care to prevent take-home asbestos exposure. (Kesner, supra, 1 Cal.5th at p. 1140.) But it extended the duty only to workers' household members based on "the foreseeability of both the regularity and intensity of contact that occurs in a worker's home." (Ibid.) Guided by Kesner, I would conclude as a matter of law that the general category of conduct here—emitting airborne material from a manufacturing plant—is sufficiently likely to cause injury that it should be considered foreseeable. (Id. at p. 1148 [the risk of exposure provides reasonable foreseeability of harm].) But foreseeability alone, while important, is not dispositive. (Id. at p. 1149-1150.) The other factors identified in Rowland also need to be evaluated to determine whether a categorical limitation on the duty of care should be judicially created.
Rowland's second factor—the degree of certainty that the plaintiff suffered an injury—relates to a claim of intangible harm such as emotional distress not present here. (Kesner, supra, 1 Cal.5th at p. 1148.) The third Rowland factor—the closeness of the connection between the defendant's conduct and the injury suffered—is related to foreseeability. (Ibid.) CertainTeed argues that the connection between its use of asbestos "and a decades-later injury to a member of the general public who lived and worked miles from the plant is so exceptionally weak as to fall into the realm of speculation and conjecture." But because a connection between asbestos exposure and cancer is well established (id. at p. 1146), and injury therefore foreseeable, CertainTeed's argument is more appropriately considered as a factual question of causation rather than a legal question of duty.
The four remaining Rowland factors involve policy considerations that do not favor limiting CertainTeed's legal duty. By not categorically excluding injuries resulting from asbestos drifting more than four miles from the manufacturing plant, CertainTeed is held accountable for all direct exposure injuries. In light of the duty to take ordinary care in the use of asbestos in the manufacturing process (Kesner, supra, 1 Cal.5th at p. 1144), and the general body of regulatory law limiting exposure and banning manufacture of certain asbestos-containing products (see id. at p. 1150), the policy objective of preventing future harm does not support the categorical limitation urged by CertainTeed. Maintaining potential responsibility for exposure even at the outer limits of airborne drift does not increase the burden of containment. Nor should moral responsibility for any injuries caused by direct exposure be eliminated solely based on distance from the plant.
CertainTeed argues that its legal duty should be limited just as the Kesner court limited the extent of the duty to prevent take-home transfer of asbestos, as it could not have reasonably anticipated injury to persons living and working outside a four-mile radius of the plant. But locus is not a principled distinction upon which to base a categorical exclusion. While the facts here are intuitively so attenuated as to raise a serious question of causation, they do not convince me that CertainTeed's duty to protect against airborne exposure should be limited based on proximity alone.
CertainTeed argues that it would bear an astounding burden should the duty of care extend to persons living and working beyond a four-mile radius. CertainTeed emphasizes the pool of potential plaintiffs—"individuals who claim that they developed an asbestos-related disease from inhaling asbestos fibers that drifted four or more miles from [CertainTeed's] plant"—could theoretically include millions who have lived or worked in the region during the twenty years it operated its Santa Clara plant. It argues the legitimate concern regarding unmanageable claims requires that liability be limited at the legal duty stage, as it was in Kesner, not at the factual causation stage. This may be CertainTeed's most forceful argument, but again it is not a principled basis for protecting some but not others from the same airborne exposure.
In my view, public policy does not adequately support the threshold limitation on duty urged by CertainTeed. Remoteness in distance and time, which are certainly present here, are factual circumstances relevant to whether CertainTeed breached its duty, and whether any breach resulted in injury.
/s/_________
Grover, J.