Haver v. BNSF Railway Co.

Full title: JOSHUA HAVER et al., Plaintiffs and Appellants, v. BNSF RAILWAY COMPANY…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Mar 9, 2017

B246527 (Cal. Ct. App. Mar. 9, 2017)

Opinion

B246527

03-09-2017

JOSHUA HAVER et al., Plaintiffs and Appellants, v. BNSF RAILWAY COMPANY, Defendant and Respondent.

Waters Kraus & Paul, Paul C. Cook, Michael B. Gurien for Plaintiffs and Appellants. Sims Law Firm and Selim Mounedgji for Defendant and Respondent.

KRIEGLER, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BC435551) APPEAL from a judgment of the Superior Court of Los Angeles County, Richard E. Rico, Judge. Reversed and remanded with directions. Waters Kraus & Paul, Paul C. Cook, Michael B. Gurien for Plaintiffs and Appellants. Sims Law Firm and Selim Mounedgji for Defendant and Respondent.

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Plaintiffs and appellants Joshua Haver, Christopher Haver, Kyle Haver, and Jennifer Morris sued defendant and respondent BNSF Railway Company (BNSF) for the wrongful death of their mother, Lynne Haver, as a result of secondary exposure to asbestos. The trial court entered a judgment of dismissal after sustaining BNSF's demurrer without leave to amend. We affirmed.

The Supreme Court granted review, reversed the judgment of this court, and remanded "for further proceedings not inconsistent with this opinion." (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1165.) The remittitur states, "Costs, if any, must be awarded by the Court of Appeal." The parties have not filed any supplemental briefs as permitted by California Rules of Court rule 8.200(b). This matter has now been submitted. (Cal. Rules of Court, rule 8.256(d)(2).) Consistent with the Supreme Court's opinion in Kesner v. Superior Court, supra, 1 Cal.5th at page 1165, the judgment and the order sustaining the demurrer are reversed. The trial court is directed to enter a new and different order overruling the demurrer. Appellants are awarded their costs on appeal.

KRIEGLER, J. We concur:

TURNER, P.J.

KUMAR, J.^*

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------