Opinion
A117320
7-1-2008
ALLISON KEITH HILTON et al., Plaintiffs and Appellants, v. ARIZONA PUBLIC SERVICE COMPANY, Defendant and Respondent.
Not to be Published
Plaintiffs Allison Keith Hilton and his wife, Christeena I. Hilton, appeal a judgment entered after the trial court granted the motion of Arizona Public Service Company (APS) for summary judgment. They contend the trial court abused its discretion in denying their motion for a continuance of the motion for summary judgment and that the court erred in granting summary judgment. We reverse.
Because most of the facts relevant to this action relate to Allison Keith Hilton, we will refer to him as Hilton and to his wife as Christeena. We intend no disrespect by this designation.
I. BACKGROUND
Hilton allegedly suffers from a condition that was caused by exposure to asbestos and asbestos-containing products. Plaintiffs brought this action against numerous defendants, including APS, seeking recovery for his injuries. They alleged Hilton had worked at a variety of workplaces, including APSs premises. Against APS, they asserted causes of action for premises owner/contractor liability and loss of consortium. The premises liability cause of action alleged that APS owned, leased, maintained, managed, or controlled premises where plaintiff was present; that it caused asbestos-containing materials to be installed, disturbed, maintained, used, supplied, replaced, repaired, or removed by its own workers or by various contractors or subcontractors, thus causing the release of dangerous quantities of toxic asbestos fibers and other toxic substances; that plaintiff was exposed to those substances; and that APS failed to provide a safe workplace and violated various regulations. The cause of action for loss of consortium alleged that Christeena had suffered damages as a result of Hiltons injuries.
APS moved for summary judgment on the premises liability cause of action on the ground that "Plaintiffs cannot demonstrate that Defendant supervised the work or exercised control over the day-to-day activities of Hilton, as is required for premises owner liability under Arizona and New Mexico law," and on the cause of action for loss of consortium on the ground that plaintiffs could not prove that their loss was proximately caused by APSs wrongful act. According to the moving papers, Hilton, who worked as a boilermaker, was employed by independent contractors when he worked at APS sites, APS did not control his work, and he had only limited contact with APS employees.
The summary judgment motion was scheduled for September 29, 2006. Plaintiffs moved to continue the hearing on September 15, 2006, pursuant to subdivision (h) of Code of Civil Procedure section 437c (section 437c), in order to complete outstanding discovery. The declaration of plaintiffs counsel in support of the motion to continue stated that plaintiffs had noticed the depositions of APSs persons most knowledgeable and custodian of records to occur on August 15, 2006, but that APS had objected to the deposition notices and had failed to produce the deponents. The parties had met and conferred, and plaintiffs thought the depositions would be scheduled soon. Plaintiffs anticipated that the depositions and associated documents would reveal, among other things, the acts and omissions of APS agents and employees with respect to the installation, removal, and disturbance of asbestos-containing materials and the level of control APS had over the work performed by Hilton and others he worked with. Plaintiffs apparently did not file any other opposition to the summary judgment motion.
The deposition notice sought the deposition of the person(s) at APS most knowledgeable about various topics, including asbestos-containing products that APS, its agents or employees or anyone else had worked with at certain worksites; its supply of asbestos-containing products; work APS or others had performed at the work sites; asbestos or asbestos-containing products in APSs possession; and APSs efforts and testing for, limiting the release of, or abating asbestos. It also sought the production of documents relating to similar topics.
At a hearing on October 19, 2006, one of plaintiffs attorneys stated that the depositions in question had taken place on October 11, that the transcripts were not yet available, and that plaintiffs expected to be able to file an opposition to the summary judgment motion within a week. On October 24, 2006, the trial court denied plaintiffs motion to continue and granted APSs motion for summary judgment. Judgment of dismissal as to APS was filed on November 13, 2006.
Plaintiffs moved for a new trial, arguing they had obtained newly discovered evidence that was unavailable at the time they opposed APSs summary judgment motion. The motion included a declaration of Hilton, in which he testified that while he was working at an APS site (the Cholla Power Plant in Arizona), APS personnel regularly disturbed asbestos-containing products in such close proximity to him that he was covered with asbestos-containing dust.
The trial court denied the motion for a new trial. Plaintiffs appealed from the judgment of dismissal.
II. DISCUSSION
Plaintiffs contend APSs motion for summary judgment should have been denied because it failed to address their allegations that Hilton was exposed to asbestos dust by APSs own workers.
"We review a grant of summary judgment de novo. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 . . . .) In performing our de novo review, we employ a three-step analysis. `First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact. [Citations.] To shift the burden, the defendant must conclusively negate a necessary element of the plaintiffs case or demonstrate there is no triable issue of material fact requiring a trial. [Citation.] If the evidence does not support judgment in the defendants favor, we must reverse summary judgment without considering the plaintiffs opposing evidence. [Citation.] Any evidence we evaluate is viewed in the light most favorable to the plaintiff as the losing party; we strictly scrutinize the defendants evidence and resolve any evidentiary doubts or ambiguities in the plaintiffs favor. [Citation.]" (Barber v. Chang (2007) 151 Cal.App.4th 1456, 1462-1463 (Barber).)
Thus, in considering a motion by a defendant, " `we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial . . . . (Guz[ v. Bechtel National, Inc. (2000)] 24 Cal.4th [317,] 334.) [A defendant bears] the burden `to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar[ v. Atlantic Richfield Co. (2001)] 25 Cal.4th [826,] 850 [Aguilar], italics added.)" (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940; see also Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [responding plaintiff has no evidentiary burden unless moving defendant has first met initial burden].) In order to meet its burden on a claim for which the plaintiff would have the burden of proof by a preponderance of the evidence, "the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain, needed evidence. " (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.)
We reject plaintiffs suggestion that we apply the law of summary judgment as it stood before the 1992 and 1993 amendments to section 437c. (See generally Aguilar, supra, 25 Cal.4th at pp. 847-852 [discussing effects of 1992 and 1993 amendments on law of summary judgment].)
The complaint alleged that APS (as one of the "Premises Owner/Contractor Liability Defendants") had "caused certain asbestos-containing materials, other building materials, products and toxic substances to be constructed, installed, disturbed, maintained, used, supplied, replaced, repaired and/or removed [on the premises in question], by their own workers and/or by various contractors and/or subcontractors, and caused the release of dangerous quantities of toxic asbestos fibers and other toxic substances into the ambient air and thereby created a hazardous and unsafe condition to plaintiff and other persons exposed to said asbestos fibers and toxic substances while present at said premises"; that Hilton "was exposed to dangerous quantities of asbestos fibers and other toxic substances released into the ambient air by the aforesaid hazardous conditions and activities managed, maintained, initiated, and/or otherwise created, controlled, or caused by [APS]"; and that APS, "by their own workers and/or by employing various contractors, [had] caused the release of dangerous quantities of toxic asbestos fibers and other toxic substances into the ambient air and thereby injured plaintiff." (Italics added.) There can be no serious dispute that the pleadings raised the question of whether APSs own workers injured Hilton by exposing him to asbestos and other harmful substances. To show an entitlement to summary judgment, then, APS was obliged to show that plaintiffs could not prevail on this theory. (See Barber, supra, 151 Cal.App.4th at pp. 1462-1463 [movant has burden to show opponent cannot prevail on any theory raised by the pleadings].)
APS brought its motion for summary judgment on the ground that "Plaintiffs cannot demonstrate that Defendant supervised the work or exercised control over the day-to-day activities of Hilton." APS contended that the applicable law was that of Arizona and New Mexico, under which it argued a premises owner is only liable for injuries to an independent contractors employee if the owner retained control of the employees work. However, the motion did not address the question of whether APSs own employees exposed Hilton to asbestos, and APS has not contended that it would not be liable for the actions of its own employees, whatever the applicable law. Indeed, APS acknowledges in its brief on appeal that it would owe a duty to Hilton if its employees worked with asbestos materials in his vicinity and failed to protect him.
APS contended a premises owners liability under Arizona and New Mexico law was narrower than it would be under the law of California. (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 677-678 [landowner may be liable if it knew or should have known of hazard, did not inform the contractor, and contractor did not know of and could not reasonably have discovered hazard].) APS did not contend below that it was entitled to summary judgment under California law.
APS now contends that it met its burden of making a prima facie case that APS did not disturb asbestos-containing materials near Hilton, arguing that the separate statement of undisputed material facts "recited that at the APS power plants, Hilton only worked around other employees of his employer" and "had no regular contact with employees of APS." An examination of the separate statement and its supporting evidence shows that APS has not made this showing as to all of the sites where Hilton worked.
The separate statement indicated that Hilton had worked at four APS sites. At the Navajo Generating Station, Hilton was employed by Bechtel Corporation, and aside from working around employees of another subcontractor, Hilton only worked around Bechtel employees there. The attached portions of Hiltons deposition indicated that other than the other subcontractor, all the employees working around Hilton were employees of Bechtel.
Hilton also worked at APSs Cholla Power Plant as an employee of Bechtel. APSs separate statement recited that Hilton was supervised by other Bechtel employees, that he had daily contact with Bechtel employees, that everyone with whom he worked was employed by Bechtel, and that APS employees watched him work on occasion. For the statement that everyone with whom Hilton worked was directly employed by Bechtel, APS relied on Hiltons deposition testimony that "[w]e all worked directly for Bechtel." This statement was apparently given in response to a question about who ordered work to be stopped. Hilton also testified that APS personnel observed his work at times. In response to a question about what conversations he recalled having with APS employees, he stated that various employees would watch the work, but that he did not recall any specific conversations.
The relevant portion of the page of the deposition on which the response occurs reads as follows: "[Carryover from previous page] was it the Bechtel people that stopped the work? [¶] . . . [¶] The Witness: We all worked directly for Bechtel, so typically if there was a problem, we would hear from a Bechtel— [¶] . . . [¶] —person." The previous page of the deposition was not attached to the motion.
Hilton was employed by Schneider, Inc. at the Four Corners Power Plant in 1981. When asked what APS employees did on the site, Hilton answered that they observed the work. The separate statement also referred to work Hilton performed at Four Corners while employed by Electrical Energy Services, Inc., in 1985, and states that Hilton had contact with few APS employees, who would occasionally come out to observe the work. In the portion of the deposition upon which APS relies for this statement, Hilton was asked about his contact with APS employees. He testified that he was most likely to encounter APSs maintenance workers, and continued, "Since there is one of them and twenty-five of us, they would like to come and watch us do our work so that they would be better prepared for emergencies and the like."
Finally, the separate statement referred to evidence that Hilton had worked at the Palo Verde Nuclear Power Plant, of which APS was the operating manager. Hilton testified in his deposition that to the best of his knowledge, everyone he saw there worked for Bechtel.
As we have noted, we must strictly scrutinize APSs evidence and resolve any evidentiary doubts or ambiguities in plaintiffs favor. (Barber, supra, 151 Cal.App.4th at p. 1463.) Bearing in mind this mandate, we conclude that APS did not meet its burden to show that its employees did not cause Hiltons injuries by disturbing asbestos-containing materials near him. In particular, the evidence in support of the motion does not show that no APS employees worked near Hilton at the Cholla Power Plant in a way that could have caused his injuries. The one statement that might arguably support such a conclusion—that "[w]e all worked directly for Bechtel"—is unclear. Without more context, or even the full question to which Hilton was responding, it is not possible to determine if Hilton meant that everyone who worked in his vicinity during the entire time he worked at Cholla was employed by Bechtel. Nor does Hiltons testimony that APS employees observed his work necessarily mean that he did not see them carrying out their own work. Whether or not the evidence of APSs activities at the other sites was sufficient to meet APSs burden on summary judgment, the evidence of its activities at Cholla did not do so.
In reaching this conclusion, we do not consider the evidence submitted in connection with plaintiffs motion for a new trial.
APS argues that we should reject plaintiffs contention that it did not raise the issue of APSs liability for the actions of its own employees because in their motion to continue, plaintiffs contended they needed evidence of APSs activities in order to oppose the motion for summary judgment. Nothing in the motion to continue the hearing date, however, changes the fact that APS did not meet its evidentiary burden on summary judgment.
As we have explained, APSs moving papers were based only on the theory that it did not supervise or control Hiltons work. However, "[t]he trial court may grant summary judgment on a ground not specifically tendered by the moving party, so long as the opposing party has notice of and an opportunity to respond to that ground." (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 860; see also Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 70.)
Because we decide that summary judgment should not have been granted on the merits, we need not decide whether the trial court abused its discretion in denying plaintiffs motion to continue the hearing on the summary judgment motion.
III. DISPOSITION
The judgment is reversed.
We concur:
REARDON, Acting P. J.
SEPULVEDA, J.