Opinion
B224722
10-18-2011
FRANK FONTES, Plaintiff and Appellant, v. INTERSTATE BRANDS CORPORATION, Defendant and Respondent.
Paul & Hanley, Deborah R. Rosenthal, Kelly A. McMeekin, for Plaintiff and Appellant. Cooley Manion Jones Hake Kurowski, William M. Hake, Carrie Lin, Nicolas P. Martin; Hake Law, William M. Hake, Nicolas P. Martin, and Melissa E. Macfarlane, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC418084)
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard Rico, Judge. Affirmed.
Paul & Hanley, Deborah R. Rosenthal, Kelly A. McMeekin, for Plaintiff and Appellant.
Cooley Manion Jones Hake Kurowski, William M. Hake, Carrie Lin, Nicolas P. Martin; Hake Law, William M. Hake, Nicolas P. Martin, and Melissa E. Macfarlane, for Defendant and Respondent.
INTRODUCTION
Linda Fontes brought a personal injury action against Interstate Brands Corporation (IBC) and other defendants alleging that she suffered from pleural mesothelioma caused by secondary exposure to asbestos fibers that her husband Frank Fontes brought home from work on his clothes. Mr. Fontes sued for loss of consortium. The trial court entered summary judgment in IBC's favor, and denied the Fonteses' new trial motion. The Fonteses appealed. On appeal, Mr. Fontes contends that the trial court erred in finding that IBC met its burden to show that Mrs. Fontes and he could not establish the elements of their case, in excluding admissible evidence that showed a triable issue of fact, and in denying their new trial motion. We affirm.
BACKGROUND
IBC brought a motion for summary judgment contending that the Fonteses could not show that IBC owed Mrs. Fontes a duty to warn her of the potential hazard of secondary exposure to asbestos because such a hazard was not known or reasonably foreseeable to IBC at the time of Mrs. Fontes's alleged exposure. Further, IBC contended, because Mrs. Fontes could not establish liability against IBC, Mr. Fontes's derivative loss of consortium claim failed.
In its separate statement of undisputed facts in support of its motion for summary judgment, IBC asserted as undisputed the following facts:
IBC asserted as undisputed other facts that were supported solely by the declaration of its expert witness Michael Geyer, an industrial hygienist. The trial court sustained the Fonteses' objections to the relevant portions of Geyer's declaration. IBC did not appeal that ruling. Accordingly, we omit those facts from the background.
The Fonteses' action was a personal injury action against multiple defendants. Mrs. Fontes alleged that she suffered from pleural mesothelioma. Mrs. Fontes claimed that her condition was caused by secondary exposure to asbestos fibers brought home on Mr. Fontes's clothes throughout his long work history with a variety of employers. As to IBC, Mrs. Fontes claimed that her indirect exposure stemmed from Mr. Fontes's work at the 4S Baking Company from 1958 to 1968 (and one or two days in 1971). During the first half of his tenure at the 4S Baking Company, Mr. Fontes worked as a baker, and during the second half he worked as a maintenance man. Mr. Fontes did not know whether he was exposed to asbestos while working at the 4S Baking Company. During his employment at the 4S Baking Company, neither "the unions" nor Mr. Fontes's employer advised Mr. Fontes about the potential dangers of asbestos or take-home asbestos, and Mr. Fontes never thought about "it."
Mrs. Fontes named IBC as a defendant in causes of action for negligence (first cause of action), strict liability (second cause of action), false representation under Restatement of Torts section 402-B (third cause of action), intentional tort under Civil Code sections 1708-1710 (fourth cause of action), premises owner/contractor liability (fifth cause of action), and premises liability—negligent maintenance, management and operation (tenth cause of action). Mrs. Fontes also asserted causes of action against other defendants and not IBC for respiratory safety devices—negligence (sixth cause of action), respiratory safety devices—strict liability (seventh cause of action), fraud and deceit/concealment (eighth cause of action), and fraud and deceit/negligent misrepresentation (ninth cause of action).
In its separate statement, IBC identified Mr. Fontes's employer as the "4S Bakery." The evidence upon which IBC's separate statement relied identified Mr. Fontes's employer as the "4S Baking Company." We will use "4S Baking Company" to refer to Mr. Fontes's employer. In its summary judgment motion, IBC assumed, for purposes of argument, that Mr. Fontes had performed work for IBC, presumably by working for the 4S Baking Company.
Except for those facts based on Geyer's declaration, the Fonteses did not dispute any of IBC's asserted undisputed facts. As to the asserted undisputed fact that Mr. Fontes did not know whether he was exposed to asbestos when he worked at the 4S Baking Company, the Fonteses neither disputed nor conceded that the fact was undisputed. Instead, the Fonteses cited Mr. Fontes's deposition testimony about the work conditions and Mr. Fontes's duties at the 4S Baking Company and the declaration of their expert witness Kenneth Cohen, an industrial hygienist, in which their expert expressed the opinion that there was asbestos at the 4S Baking Company to which Mr. Fontes was exposed.
As discussed below, the trial court struck the relevant portions of Kenneth Cohen's declaration, and we affirm that ruling. The Fonteses also retained an expert named Richard Cohen. For purposes of clarity, we refer to each expert by his full name.
In their separate statement of disputed facts in opposition to IBC's motion for the summary judgment, the Fontes asserted, in relevant part, the following:
Mr. Fontes worked at the 4S Baking Company from 1958 to 1968, first as a baker, baker's helper, break man, or oven man (baker) and then, after 1964-1965, as a maintenance man. As a baker, Mr. Fontes worked in close proximity to others who, twice a year, removed and replaced insulation on steam lines. The insulation was removed with hammers and hacksaws. Mr. Fontes cleaned up some of the resulting debris. The process took two days. As a maintenance man, Mr. Fontes removed and replaced steam line insulation twice a year on two ovens.
According to Mr. Fontes, the insulation that was removed from the steam lines consisted of a grayish, white "half-round" material and a white, plaster-type material. The insulation that was replaced on the steam lines consisted of "half-rounds" that were wrapped in a cloth that was dipped in a "pancake mix" of a white powder insulation material and water. The pancake mix also was applied "directly on pipe insulation." The removal and replacement of steam line insulation created dust that adhered to Mr. Fontes's person and clothes.
As a baker, Mr. Fontes worked in close proximity to others who, weekly, removed and replaced oven burner gasket material. As a maintenance man, Mr. Fontes removed and replaced oven burner gasket material using a scraper, a wire brush, and an air gun. Mr. Fontes described the gasket material that he removed from the oven burners as hardened and flaky and as a "dirty white fibrous material." Mr. Fontes described the gasket material that he replaced as a white fiber-type material. The removal and replacement of gasket material from the oven burners created dust that adhered to Mr. Fontes's person and clothing.
Mr. Fontes also removed and replaced gasket material from steam pipe flanges with a ball peen hammer. The removal and replacement of this gasket material created dust that adhered to Mr. Fontes's person and clothing.
Mr. Fontes wore his own clothes to work. Although the 4S Baking Company provided a locker area, none of its employees used the locker area to change clothes. The 4S Baking Company did not provide a laundry facility for its employees.
The 4S Baking Company did not post warnings about hazardous materials during Mr. Fontes's employment. Mr. Fontes's foreman did not speak to Mr. Fontes about safety issues or tell him that he might be exposed to asbestos at work or that he might be exposing his wife to asbestos.
The Fonteses' separate statement of disputed facts in opposition to IBC's motion for summary judgment relied exclusively on Kenneth Cohen's declaration for the following:
It was more likely than not that the insulation and gasket material at the 4S Baking Company that Mr. Fontes described contained asbestos. The removal and installation of the insulation and gasket material at the 4S Baking Company as described by Mr. Fontes would have released substantial amounts of asbestos dust and fibers into the air to which dust and fibers Mr. Fontes was exposed. Mr. Fontes's work as a maintenance man, including the removal and cutting of insulation and gasket material, exposed Mr. Fontes to airborne dust that contained asbestos. Such dust adhered to Mr. Fontes's clothes which he wore home, thereby contaminating his car and home with asbestos fibers. Mrs. Fontes inhaled asbestos fibers that she released into the air when she shook out and laundered Mr. Fontes's dirty work clothes. Mrs. Fontes also was exposed to airborne asbestos fibers when she drove and rode in Mr. Fontes's contaminated car. It was more likely than not that Mr. Fontes's exposure to "asbestos-containing insulation removed and installed during his work at the 4S Baking Company" increased the risk that Mrs. Fontes would develop mesothelioma.
The Fonteses' separate statement of disputed facts in opposition to IBC's motion for summary judgment relied exclusively on Richard Cohen's declaration for the following facts:
By the early 1960's, it was well established by "the literature" and well known in industries in which toxic substances posed a specific risk and were regulated—such as the food processing industry—that asbestos dust was hazardous and carcinogenic. In the 1960's, all California employers were subject to safety orders concerning the control of hazardous substances, including asbestos. Those orders required the "substitution of non-hazardous equipment, materials, and processes, control by ventilation, and the use of respiratory protective equipment and showers for workers exposed to excessive asbestos in the work environment." Health and Safety Code section 28282 provided that "'the floors, side walls, ceiling, furniture, receptacles, utensils, implements, and machinery of every food processing establishment shall at no time be kept in an unclean, unhealthful, or unsanitary condition.'" "In light of the widely available knowledge in the literature and existing regulations, . . . an industrial bakery such [as] 4S Baking that assigned its workers asbestos-related tasks knew or should have known by the early-to-mid 1960s, when Mr. FONTES began working as a maintenance mechanic for 4S Baking, that asbestos cancer hazards were a matter of serious concern."
The trial court granted IBC's motion for summary judgment, and Mr. Fontes appeals.
Mrs. Fontes passed away after the notice of appeal was filed. Mr. Fontes, as Mrs. Fontes's successor-in-interest, moved to substitute himself in his wife's place. We granted Mr. Fontes's motion.
DISCUSSION
I. IBC's Summary Judgment Motion
Mr. Fontes contends that the trial court erred in granting IBC's summary judgment motion because IBC failed to meet its burden of showing that the Fonteses could not establish one or more elements of their causes of action. Mr. Fontes further contends that even if IBC met its burden, Mrs. Fontes and he met their burden of showing a triable issue of material fact through Kenneth Cohen's and Richard Cohen's declarations, which the trial court erroneously excluded.
A. Standards of Review and Relevant Principles
"We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 .) We make 'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 .) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].)" (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.) We must consider all of the evidence and all of the inferences reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
A party moving for summary judgment may meet its burden of showing that there is no merit to a cause of action or that there is a complete defense to a cause of action through the opposing party's "'factually devoid' discovery responses from which an absence of evidence can be inferred." (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) The burden should not shift, however, "without stringent review of the direct, circumstantial and inferential evidence." (Ibid.)
Cases have said that we review a trial court's evidentiary rulings in connection with a summary judgment motion for abuse of discretion. (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335 ["'Although it is often said that an appellate court reviews a summary judgment motion "de novo," the weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard. [Citations.]'"].) "A trial court enjoys broad discretion in ruling on foundational matters on which expert testimony is to be based." (Maatuk v. Guttman (2009) 173 Cal.App.4th 1191, 1197.) "'"Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered."' [Citation.]" (Jennifer C. v. Los Angeles Unified School Dist. (2008)168 Cal.App.4th 1320, 1332.) "'Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court.' [Citation.] We will only interfere with the lower court's judgment if appellant can show that under the evidence offered, '"no judge could reasonably have made the order that he did."' [Citation.]" (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.)
The California Supreme Court recently said it did not resolve whether the abuse of discretion standard of review applies to all evidentiary rulings made in connection with a motion for summary judgment. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 ["we need not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo"].) In this appeal, we need not decide whether we review the trial court's evidentiary rulings de novo or for an abuse of discretion as we would affirm the rulings under either standard.
B. Background
IBC moved for summary judgment on the grounds that Mrs. Fontes could not "show that IBC owed her any duty during the relevant time period of 1958-1968 (and 1 or 2 days in 1971) to warn her regarding potential work hazards from asbestos exposure because alleged injury from secondary exposure to asbestos was not known or reasonably foreseeable to IBC at the time." Because Mrs. Fontes could not establish liability against IBC, IBC argued, Mr. Fontes's derivative loss of consortium claim necessarily failed.
In their opposition to IBC's summary judgment motion, the Fonteses argued that IBC failed to shift the burden to them on the issues of asbestos exposure and whether IBC owed Mrs. Fontes a duty to use due care to not expose her to asbestos. The Fonteses further argued that Mr. Fontes's deposition testimony and the Cohen declarations created a triable issue of fact on the issue of whether Mrs. Fontes was exposed to asbestos from Mr. Fontes's activities at the 4S Baking Company, asbestos-related harm to household members of persons exposed to workplace asbestos was foreseeable, IBC owed a duty to persons off its premises to protect them from foreseeable harm resulting from asbestos on its premises, and a triable issue of fact existed as to IBC's breach of its duty.
This argument was based on a statement in the Geyer declaration that Geyer did not know if there was asbestos at the 4S Baking Company at any time. The Fonteses did not object to this portion of the Geyer declaration. The Fonteses argued that Geyer's declaration did not show that they could not prove that there was asbestos at the 4S Baking Company.
In its reply in support of its summary judgment motion, IBC argued that the Fonteses could not show that Mr. Fontes worked around asbestos at the 4S Baking Company during his employment. IBC further argued that the Fonteses could not establish that between 1958 and 1968 the 4S Baking Company reasonably could have foreseen the asserted risk of asbestos exposure to Mrs. Fontes.
The trial court filed two orders granting IBC's motion for summary judgment. In its second order, the trial court found that the Fonteses could not establish that Mr. Fontes worked around asbestos as an employee of the 4S Baking Company. Therefore, the trial court ruled, the Fonteses could not prove, as a matter of law, that IBC caused any asbestos-related injury to the Fonteses. The trial court further found that the Fonteses could not establish that the 4S Baking Company reasonably could have foreseen the risk to Mrs. Fontes of take-home asbestos exposure based on Mr. Fontes's employment. Therefore, the trial court ruled, as a matter of law, that the Fonteses could not prove that IBC owed Mrs. Fontes a duty of care. The trial court found that IBC had made a prima facie showing that there were no triable issues of material fact on these issues by producing portions of Mr. Fontes's deposition testimony, the Fonteses' General Order No. 29 Case Report, and the Fonteses' Responses to Defendants' Standard Interrogatories (General Order No. 13).
C. IBC's Burden
Under the allegations of the complaint, IBC's liability to the Fonteses required, in the first instance, that there was asbestos at the 4S Baking Company. (Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 89 ["even under the most lenient causation standards, there must be proof that the defendant's asbestos products or activities were present at plaintiff's work site"], disapproved on other grounds in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1245.) Absent the presence of asbestos at the 4S Baking Company, Mrs. Fontes could not have suffered an asbestos-related injury for which IBC could be responsible. The evidence that IBC adduced in support of its summary judgment motion was sufficient to establish that the Fonteses could not prove there was asbestos at the 4S Baking Company, and thus was sufficient to shift the burden to the Fonteses to show a triable issue of material fact.
IBC did raise lack of duty, and there can be no duty if there was no exposure. The issue of exposure was submitted to the trial court. (See Sequoia Ins. Co. v. Superior Court (Norden) (1993) 13 Cal.App.4th 1472, 1478 [notice does not have to identify specific facts or issues within a claim or defense raised].)
In support of its summary judgment motion, IBC submitted the Fonteses' responses to two Los Angeles County Superior Court General Orders applicable to asbestos litigation and excerpts from Mr. Fontes's deposition testimony. General Order No. 29 required a plaintiff in an asbestos action to complete a Case Report that set forth the plaintiff's exposure history including the dates and locations of the exposure. General Order No. 13 established a standard set of interrogatories from "insulation, railroad, construction and building-material defendants to the plaintiffs in personal injury actions."
IBC moved for judicial notice of 46 general orders of the Los Angeles County Superior Court. IBC's motion for summary judgment and the Fonteses' opposition thereto addressed only the Fonteses' responses to General Order No. 13 and Third Amended General Order No. 29 (General Order No. 29). Accordingly, we grant IBC's motion with respect to General Order Nos. 13 and 29 and deny the remainder of the motion.
Pursuant to General Order No. 29, a plaintiff was required, for product identification based causes of action, to "[i]dentify the witnesses, known to plaintiff, who have knowledge of plaintiff's exposure to any asbestos-containing products ('product identification witness'), and the document(s) known to plaintiff that support(s) plaintiff's allegations of exposure to any asbestos-containing products." The general order provided that "'product identification witness' shall mean: any percipient witness known to plaintiff who has knowledge of: a) the identity by name (brand name, colloquial name, manufacturer, distributor, seller, supplier, and/or owner) and/or asbestos content of any asbestos containing product(s) to which plaintiff or plaintiff's decedent is claimed to have been exposed; and/or b) the identity of any premises at which plaintiff or plaintiff's decedent is claimed to have been exposed to asbestos containing products; and/or c) identify [sic] of any contractor defendant whose work plaintiff claims exposed plaintiff or plaintiff's decedent to asbestos containing products. A plaintiff may additionally list an expert witness as a 'product identification witness.' A 'product identification document' shall mean any document(s) known to plaintiff that support(s) plaintiff's allegations of exposure to any asbestos-containing products."
In their October 19, 2009, Case Report in response to General Order No. 29, the Fonteses alleged that Mr. Fontes came into contact with asbestos dust from insulation and asbestos-containing gaskets when he serviced, maintained, and repaired ovens, motors, pumps, and compressors at the 4S Baking Company that were manufactured, sold, and supplied by Aurora Pumps, Allis-Chalmers, Goulds, Ingersoll-Rand, Peerless Pumps, U.S. Motors, and Warren Pumps. The Fonteses alleged that Mr. Fontes used, at times, sheet gaskets that contained asbestos that were manufactured, sold, and supplied by Garlock and Durabla. The Fonteses further alleged that at the end of Mr. Fontes's shifts at the 4S Baking Company, Mr. Fontes returned home covered in asbestos from his work. Mrs. Fontes routinely shook out and cleaned Mr. Fontes's clothes, thereby exposing herself to asbestos dust which she inhaled. The Fonteses identified only themselves as witnesses. The Fonteses identified thousands of documents in support of their asbestos exposure claims against other defendants, but no documents in support of their claims against IBC.
General Order No. 13 directed a responding plaintiff to use due diligence to obtain the requested information and to provide "all" information in the plaintiff's possession or under the plaintiff's control. With respect to asbestos exposure, interrogatory number 26 provided, "For each product, material or compound (collectively referred to as 'product') which you contend contains asbestos allegedly manufactured, produced, prepared, distributed or sold by any defendant named in this action or by its predecessors, subsidiaries, subdivisions or affiliates, and which you claim to have been exposed to at any time: [¶] a. Describe each product as specifically as possible, including its trade name, product type, asbestos content, color, packaging, and manufacturer, together with a detailed description of when and how you became aware of this information; [¶] b. State the date(s) on which and places where you were exposed or your best estimate thereof, together with the circumstances surrounding such exposure (i.e. were you working with it or simply near an area where it was being used?) to the product; [¶] c. Describe all instructions, recommendations or warnings of any kind that accompanied the product, together with the location(s) where this information appeared (e.g., printed on tag, tag covering, instruction sheet accompanying product, etc.); [¶] d. Describe all instructions and recommendations given to you regarding the product by your employer or superior at any time, together with the name, job title, and address of the person who gave you the instructions or recommendations and the date you were given the instructions or recommendations; [¶] e. State the purpose for which you used the product; and [¶] f. State the date you first became aware that the product allegedly contained asbestos, together with a detailed description of the circumstances by which you so became aware."
The substance of the Fonteses' November 18, 2009, response to interrogatory number 26 was identical to their General Order 29 Case Report response that is set forth above. The Fonteses did not identify any documents or witnesses other than themselves that would support their claim that Mrs. Fontes was exposed to asbestos that Mr. Fontes brought home from the 4S Baking Company on his clothes.
The lists of documents identified related to other defendants.
In the portion of Mr. Fontes's deposition that took place on December 1, 2009, IBC's attorney asked Mr. Fontes, "It is true that you do not know whether you were exposed to asbestos at the bakery, correct?" Mr. Fontes responded, "That's true." Mr. Fontes then testified that he recently learned that he had worked around asbestos. IBC's attorney asked Mr. Fontes how he knew that he had worked around asbestos. Mr. Fontes replied that some of the products he worked around "probably contained asbestos." IBC's attorney stated, "Probably. [¶] . . . [¶] But you don't know?" Mr. Fontes replied, "No. I'm not an expert."
The Fonteses' General Order 29 Case Report and General Order 13 response to interrogatory number 26 identified no documents and no witnesses other than themselves as support for the claim that Mrs. Fontes was exposed to asbestos that came from the 4S Baking Company. There is no assertion that Mrs. Fontes ever was on the premises of the 4S Baking Company or that she had knowledge, as a percipient witness, of the presence of asbestos at the 4S Baking Company. Mr. Fontes, the only other witness the Fonteses identified, testified in his deposition that he did not know if he was exposed to asbestos at the 4S Baking Company. Mr. Fontes's deposition testimony on this point took place after the Fonteses submitted their General Rule 29 Case Report and General Rule 13 response to interrogatory number 26, thus effectively refuting any claim in the report and response that there was asbestos at the 4S Baking company. (See Barton v. Elexsys Intern., Inc. (1998) 62 Cal.App.4th 1182, 1191-1192 [declaration that directly contradicts deposition testimony must be disregarded]; see also D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.)
The Fonteses' General Rule 29 Case Report, General Rule 13 response to interrogatory number 26, and Mr. Fontes's deposition testimony were sufficient to establish that the Fonteses could not prove there was asbestos at the 4S Baking Company. (Scheiding v. Dinwiddie Const. Co., supra, 69 Cal.App.4th at p. 83.) Accordingly, such evidence was sufficient to shift the burden to the Fonteses to show a triable issue of material fact.
D. The Fonteses' Burden
Mr. Fontes contends that even if IBC made a sufficient showing to shift the burden to Mrs. Fontes and him to show a trial issue of material fact, Mrs. Fontes and he made such a showing through the expert declarations of Kenneth and Richard Cohen. The trial court abused its discretion, Mr. Fontes contends, in excluding those declarations.
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).)
Richard Cohen apparently was retained to opine on the issue of the foreseeability of harm to Mrs. Fontes. The trial court excluded Richard Cohen's declaration in its entirety. Because we hold that IBC shifted the burden to the Fonteses on the issue of causation—i.e., whether there was asbestos at the 4S Baking Company when Mr. Fontes worked there—and we hold that the trial court properly excluded Kenneth Cohen's declaration, thus preventing the Fonteses from showing a triable issue of material fact on that issue, we need not reach the issue of whether the trial court erred in excluding Richard Cohen's declaration on the issue of foreseeability.
With respect to the presence of asbestos at the 4S Baking Company during the time it employed Mr. Fontes, Kenneth Cohen opined that it was more likely than not that the insulation and gasket material at the 4S Baking Company that Mr. Fontes described contained asbestos. Mr. Fontes's removal and installation of the insulation and gasket material would have released substantial amounts of asbestos dust and fibers into the air to which dust and fibers Mr. Fontes was exposed. Mr. Fontes's work as a maintenance man exposed Mr. Fontes to airborne dust that contained asbestos that adhered to the clothes that Mr. Fontes wore home, thereby contaminating his car and home with asbestos fibers.
The asserted foundation for Kenneth Cohen's opinion that the insulation and gasket material at the 4S Baking Company, as described by Mr. Fontes, contained asbestos was Kenneth Cohen's work as an industrial hygienist and safety and health consultant, his work as an inspector for the California Occupational Safety and Health Administration, his work as an instructor of occupational safety and health for the United States Department of Labor and industrial hygiene at the University of California at San Diego, his education, his work as the Corporate Director of Safety and Health for several large shipyards in 1975, his work as a consultant to the Navy's "engineering think-tank regarding asbestos problems on shore based facilities," his co-authorship of the Navy's manual on "dealing with asbestos problems," lectures he gave to the "engineering people" on the nature of asbestos, his consultation as an industrial hygienist with asbestos manufacturers, his inspection as an industrial hygienist for the "Cal/OSHA's High Hazard Unit" of four commercial bakeries during the period from 1994 to 1998, his observation of steam pipes at those bakeries, his inspection as an industrial hygienist of "other" food processing plants, his familiarity with asbestos and products that contained asbestos and the use of such products for "steam applications," his familiarity with the way insulators and pipefitters performed their work, his observation under a microscope of insulation and other materials that contained asbestos, and his knowledge that the insulation materials used on high pressure equipment or steam lines prior to 1972 almost invariably contained asbestos. The trial court excluded the relevant parts of Kenneth Cohen's declaration on the grounds, among others, that they lacked foundation and were "completely speculative." The trial court properly excluded the relevant parts of the declaration.
The declaration failed to establish that Kenneth Cohen had any knowledge concerning the commercial baking industry during the period from 1958 to 1968 (and one or two days in 1971). The declaration failed to show how Kenneth Cohen's experience with Naval "asbestos problems," his work with asbestos manufacturers, or his knowledge of how insulators and pipefitters performed their work qualified him to opine about the material that was used as insulation and in gasket material in a commercial bakery during the period from 1958 to 1968 (and one or two days in 1971). Likewise, the declaration failed to establish how Kenneth Cohen's inspection of four commercial bakeries in the mid-to-late 1990's or his inspection of food processing plants other than commercial bakeries informed his opinion on the content of insulation and gasket material used in commercial bakeries some 30 to 40 years earlier.
Apart from the inadequacies of Kenneth Cohen's declaration to establish his qualification to offer an opinion about the use of asbestos as insulation and in gasket material in the commercial baking industry in the 1950's and 1960's, his deposition testimony showed that he had no specific knowledge about the manufacturers of the products that were used at the 4S Baking Company or the content of the material in the equipment the bakery used. The deposition testimony also contradicts the assertion in Kenneth Cohen's declaration that during the time period at issue the insulation materials used on high pressure equipment or steam lines almost invariably contained asbestos. At Kenneth Cohen's deposition, IBC's attorney and the Fonteses' expert engaged in the following colloquies:
"Q. You—you do not know anything about any manufacturers of any products that might have been at 4S; correct?"
"A. I don't recall."
"Q. You don't know the content of any materials or machinery or equipment at 4S; correct?"
"A. Not that I recall."
"Q. You don't know any brand name or manufacturer of anything that might have been located at 4S Bakery in the 1960's; correct?"
"A. I wasn't there in the 1960s, so I would have no opportunity to know any information regarding the 4S operation in the 1960s."
"Q. And you have no personal knowledge of any equipment, materials, or products located at 4S in the '50s or '60s; is that correct?"
"A. I have no specific knowledge of any of the materials, equipment, or whatever else you asked about at 4S in the 1960s."
"Q. During the '50s, there were many different products used for insulation; correct?"
"A. As far as I know, there was."
"Q. And you've previously testified that a number of different natural and nonnatural items were used for thermal insulation in the '40s, '50s and '60s; correct? "A. For some types, yes.
"Q. What are some of those items that were used for insulation during those periods?
"A. Cork, horse hair, mineral wool. Those are the only ones that I'm familiar with that were nonasbestos-containing.
"Q. And I think you've previously testified, in addition, to felt, nonasbestos felt, and something called foam glass. Do you recall that?
"A. Foam glass, yes, I recall that. Felt may have been used. It's familiar, but I don't recall it."
The trial court correctly excluded the relevant parts of Kenneth Cohen's declaration because there was a lack of foundation supporting the opinion that there was asbestos at the 4S Baking Company when Mr. Fontes worked there. Absent Kenneth Cohen's declaration, the Fonteses failed to produce any evidence that showed that there was a triable issue of fact as to whether there was asbestos at the 4S Baking Company when Mr. Fontes worked there. Accordingly, the Fonteses failed to meet their burden, and the trial court properly granted IBC's summary judgment motion. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849, 853; Moser v. Ratinoff, supra, 105 Cal.App.4th at pp. 1216-1217.) Although it appears that foreseeability as an aspect of the duty of care may involve some factual analysis (see Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1272-1273; Silva v. Union Pacific Railroad Co. (2000) 85 Cal.App.4th 1024, 1028-1030), we need not reach that issue because of our conclusion that the Fonteses failed to show a triable issue of material fact that there was asbestos at the 4S Baking Company when Mr. Fontes worked there.
II. The Fonteses' New Trial Motion
After the trial court granted summary judgment, the Fonteses moved for a new trial based, in relevant part, on the alleged newly discovered expert opinions of Barry Castleman, Sc.D., and Susan Raterman that the 4S Baking Company should have known there was asbestos on its property and that the asbestos posed a danger to Mrs. Fontes. Mr. Fontes contends that the trial court abused its discretion in denying the new trial motion. The trial court did not err.
A. Standard of Review
We review for abuse of discretion the denial of a new trial motion based on newly discovered evidence. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161.)
B. Application of Relevant Principles
A trial court may grant a new trial motion based on newly discovered evidence if the moving party has shown that the evidence is newly discovered, the party used reasonable diligence in discovering the evidence, and the evidence is material to the party's case. (Code Civ. Proc., § 657, subd. (4) ; Sherman v. Kinetic Concepts, Inc., supra, 67 Cal.App.4th at p. 1161; Wood v. Jamison (2008) 167 Cal.App.4th 156, 161.) Newly discovered evidence is "material" if it is "'"likely to produce a different result."'" (Sherman v. Kinetic Concepts, Inc., supra, 67 Cal.App.4th at p. 1161.)
Code of Civil Procedure section 657 provides, in relevant part, "The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] . . . [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial."
Following the trial court's grant of summary judgment, the Fonteses filed a new trial motion in which they argued that the trial court should grant a new trial based, in part, on newly discovered documents and the expert opinions of Castleman and Raterman that were based, in part, on those documents. In his declaration, Castleman opined that IBC knew or reasonably should have known that the insulation and gaskets in its bakery operations contained asbestos (presumably based on the assumption that the 4S Baking Company had asbestos in certain equipment) and that maintenance of the insulation and gaskets would release asbestos dust. Castleman opined that by 1965 it was well established in the scientific community that household exposure to asbestos could cause mesothelioma. According to Castleman, by the mid-1960's, IBC knew or reasonably should have anticipated that family members of workers who maintained insulation that contained asbestos were at an increased risk for developing mesothelioma.
In her declaration, Raterman opined that the insulation and gaskets that Mr. Fontes removed and replaced at the 4S Baking Company more likely than not contained asbestos. According to Raterman, well before Mr. Fontes began working at IBC in 1957, IBC knew or should have known that the insulation and gaskets contained asbestos.Raterman opined that by the 1960's there was "little doubt" that household asbestos exposure—asbestos exposure to family members from asbestos fibers carried home on workers' clothes, skin, and hair—caused mesothelioma. Such asbestos exposure was "very foreseeable." Mrs. Fontes was exposed to asbestos by IBC's failure to implement exposure controls for its workers.
In her declaration, Raterman refers to the 4S Baking Company and IBC interchangeably.
IBC objected to Castleman's declaration in its entirety on the ground that he was not qualified to give expert or lay opinion testimony about IBC's or the baking industry's knowledge of asbestos-related dangers. The trial court sustained the objection. The trial court also sustained IBC's objections on various grounds to all of the substantive opinions expressed in Raterman's declaration.
The trial court denied the Fonteses' motion for new trial. The trial court ruled, "The alleged newly discovered evidence is insufficient to grant the motion for new trial. Plaintiffs knew that the experts would be on their list and had started gathering information from them in the form of documentation and deposition testimony prior to the hearing on Defendant IBC's motion for summary judgment. Plaintiffs failed to exercise reasonable diligence in failing to ask for a continuance because they knew that the experts' testimony could lead to evidence in support of their claims. Failure to ask for a continuance is a further bar to the motion for new trial based on newly discovered evidence. Scott v. Farrar (1983) 139 Cal.App.3d 462, 468."
In his opening brief, Mr. Fontes did not challenge the trial court's evidentiary rulings excluding the Castleman and Raterman declarations. Without a successful challenge to the trial court's evidentiary rulings, IBC contends, Mr. Fontes's argument that the trial court erred in denying the new trial motion cannot succeed because Mr. Fontes cannot show that the newly discovered evidence—the Castleman and Raterman declarations—would have been material to Mrs. Fontes's and his case. We agree.
Code of Civil Procedure section 657, subdivision (4) necessarily concerns the new discovery of admissible evidence because newly discovered inadmissible evidence is not evidence that is "material" to the moving party's case. That is, inadmissible evidence is not evidence that is "'"likely to produce a different result"'" if a new trial is granted. (Sherman v. Kinetic Concepts, Inc., supra, 67 Cal.App.4th at p. 1161.) Thus, to prevail on his challenge to the trial court's denial of his new trial motion, Mr. Fontes had to challenge successfully the trial court's ruling at least as to one of the challenged declarations if not both. Mr. Fontes's failure to challenge in his opening brief the trial court's evidentiary rulings excluding the Castleman and Raterman declarations forfeited review of those rulings. (Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 451-452.) Accordingly, because Mr. Fontes has failed to demonstrate that the trial court erred in excluding the Castleman and Raterman declarations, he has failed to show that the trial court erred in denying his new trial motion.
In his reply brief, Mr. Fontes cites Plancarte v. Guardsmark (2004) 118 Cal.App.4th 640, 645, Gonzales v. R. J. Novick Constr. Co. (1978) 20 Cal.3d 798, 805-806, and American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 215-217 for the proposition that subsumed within his argument that the trial court erred in denying his new trial motion is the argument that the trial court abused its discretion in excluding the Castleman and Raterman declarations. Accordingly, Mr. Fontes reasons, this court must review the trial court's evidentiary rulings. None of the cases Mr. Fontes cites requires such a review.
Despite the fact that IBC raised the forfeiture issue in its respondent's brief, Mr. Fontes did not identify in his reply brief any paragraph in the Castleman or Raterman declarations that he contends the trial court erroneously excluded, and did not provide analysis and citation to legal authority explaining why the trial court's ruling was error with respect to any challenged paragraph.
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Moreover, as the Fonteses could not establish that there was asbestos at the 4S Baking Company when Mr. Fontes worked there, that part of the new trial motion that concerned foreseeability could not have succeeded.
DISPOSITION
The judgment is affirmed. IBC is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.