Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG06292693
Sepulveda, J.
Appellants Neil and Gabriele Le Sage appeal following the grant of summary judgment in their action alleging injuries to Neil from exposure to the asbestos of respondent Union Carbide Corporation (Union Carbide). They argue that there was a triable issue of material fact over whether Neil was exposed to respondent’s asbestos. We agree and reverse summary adjudication as to three causes of action. As to summary adjudication on the two causes of action that appellants do not address on appeal, we affirm.
To avoid confusion, and with no disrespect intended, we refer to appellants by their first names.
I.
Factual and Procedural Background
Union Carbide began mining and milling asbestos in August 1963. The short-fiber raw chrysotile asbestos it mined was marketed under the brand name “Calidria” and sold in bulk to various companies that used the asbestos in several finished products. One such type of asbestos-containing products was joint compounds, which are used to conceal and reinforce the joints on gypsum wallboard, conceal dimpled nail heads, and cover corner beads to provide a smooth surface.
Appellants claimed that Neil was exposed to respondent’s asbestos that was included in joint compounds made by five different companies, as well as other products containing respondent’s asbestos. On appeal, however, they focus on only one particular joint compound made by a single company: “Ready Mix” joint compound, manufactured by Georgia-Pacific Corporation (Georgia-Pacific). We therefore limit our summary of the evidence primarily to Neil’s exposure to Ready Mix.
Georgia-Pacific manufactured several varieties of asbestos-containing joint compound in the 1960s and 1970s. According to the company’s interrogatory responses, all but one of these joint compounds were “dry,” which meant they had to be mixed with water before use. By contrast, Ready Mix was a “paste,” which meant that it was already mixed with water. Ready Mix was the only joint compound product that came in pails or buckets; the dry products came in bags.
During the late 1960s and most of the 1970s, Neil worked as a painter at various commercial, industrial, and institutional jobsites in and around Milwaukee, Wisconsin. One of his jobs as a painter was to prepare walls for painting, which involved sanding the walls in areas where joint compound had been applied. Sanding and brushing the walls generated “visible dust.” Neil also installed and repaired drywall, which involved mixing, applying, and sanding drywall joint compound. He also frequently worked in the same or nearby rooms when other workers installed drywall, which involved sanding both dry and premixed drywall joint compound. Neil also frequently swept and cleaned dust from the joint compound products. All of these activities resulted in Neil inhaling “substantial quantities of airborne asbestos supplied by” respondent.
As for the specific evidence that Neil was exposed to Ready Mix joint compound (as opposed to a dry variety of Georgia-Pacific joint compound or joint compound made by another company), he testified that he worked with Georgia-Pacific joint compound throughout his career, and that he observed others doing the same (although he could not identify specific jobsites where he used the product). He testified that he worked with both the dry joint compound and the premixed version; however, he saw “a lot” of premixed joint compound mud in five-gallon buckets (presumably, Ready Mix). When asked for specific years when he used the premixed product, he testified, “From the early 70’s through the early 80’s.” He could not, however, quantify how often he used the joint compound. Richard Klaeser, Jr., who observed Neil at “hundreds” of worksites starting in 1968 until about 1976, testified that he saw Neil work with Georgia-Pacific joint compound “frequently.” He observed Neil working with both dry and premixed joint compound; however, he had a more specific recollection of Neil working with the premixed version and was not “certain” about the dry form. As for whether the Ready Mix joint compound that Neil was exposed to contained respondent’s asbestos, Neil claimed in interrogatory responses that “[f]rom 1970-1977 asbestos fibers supplied by Union Carbide were used exclusively in Georgia-Pacific pre-mixed joint compound.” (Unnecessary capitalization removed.)
Appellants filed a complaint on October 10, 2006, for personal injuries from asbestos exposure. They alleged that Neil had been exposed to products containing asbestos, which caused severe injuries, including “cancer and other lung damage.” The complaint named 21 defendants, including respondent. Appellants alleged causes of action against respondent for negligence, strict liability, false representation, and “intentional tort” (Civ. Code, §§ 1709, 1710) as to Neil, and loss of consortium as to Gabriele.
Both sides state that the complaint was filed in San Francisco. In fact, the complaint was filed in Alameda County.
On May 4, 2007, respondent filed a motion for summary judgment/summary adjudication, arguing that appellants could not establish causation. It argued, among other things, that appellants could not establish that Neil was exposed to Calidria asbestos in joint compound manufactured by Georgia-Pacific. Respondent presented evidence that it did not sell asbestos to Georgia-Pacific until after 1970. It stated in its separate statement of undisputed material facts (Code Civ. Proc., § 437c, subd. (b)(1)) that after 1970, Georgia-Pacific had “multiple suppliers of asbestos.” In support of this statement, it cited interrogatory responses from Georgia-Pacific, which stated that respondent and other suppliers provided asbestos to Georgia-Pacific for its various joint compound products. As for Ready Mix, the interrogatory responses stated that between 1963 and 1977, both Phillip Carey and respondent provided asbestos for the product.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
In their opposition, appellants claimed, as Neil had in his interrogatory responses, that Neil worked with Georgia-Pacific joint compound in which respondent’s asbestos was used “exclusively.” They submitted the October 3, 2001 deposition testimony of C. William Lehnert, who worked for Georgia-Pacific as a research manager from 1965 until his retirement in 1990. Lehnert worked with, among other products, joint compounds and textures. He testified that between October 1970 and May 1977, Georgia-Pacific produced Ready Mix joint compound with respondent’s asbestos at Georgia-Pacific’s Chicago plant, which was the plant closest to where Neil worked in Wisconsin. Lehnert was not aware of any instance where Ready Mix was made at one plant then sent to a different region. Lehnert testified that during the relevant time period, all the “general formulas” contained Union Carbide asbestos. He also testified that there were exceptions: from May to December 1974, Georgia-Pacific made a “special request formula” without asbestos; special “trial shipments” were made between March 1975 and March 1976; and between March 1974 and March 1976, Georgia-Pacific made Ready Mix without Union Carbide asbestos. Lehnert testified that there were also “asbestos-free formulas that were made available.”
The deposition was taken in connection with a separate lawsuit filed in Madison County, Illinois.
An exhibit to Lehnert’s deposition listed the locations of four other Georgia-Pacific plants: Acme, Texas; Marietta, Georgia; Milford, Virginia; and Akron, New York.
In its reply brief, respondent argued that Lehnert’s testimony did not create a triable issue of fact, because he testified that some of the products shipped from Georgia-Pacific’s Chicago plant during the relevant time period did not use Union Carbide asbestos. At the hearing on the summary judgment motion, appellants submitted additional excerpts from Lehnert’s deposition to show that Georgia-Pacific did not begin producing asbestos-free formulas until 1975 or 1976, and the trial court considered this testimony.
The trial court’s clerk first notified respondent on June 12, 2007, that the court had granted respondent’s motion for summary judgment, and that a written order would be issued. On June 21, appellants filed a motion for reconsideration (§ 1008), and presented recently taken deposition testimony that purported to establish that Neil was exposed to a joint compound (not manufactured by Georgia-Pacific) that contained respondent’s asbestos. On its own motion, the trial court on June 22 reopened respondent’s summary judgment motion for further consideration, and permitted the additional evidence submitted by appellants as if their supplemental opposition had been requested and granted pursuant to section 437c, subdivision (h). On June 25, 2007, the trial court issued a “tentative final order granting summary judgment” in order to help the parties focus their supplemental arguments. Appellants filed a “Request for Clarification of Tentative Final Order Granting Summary Judgment,” arguing that it was unclear from the tentative order whether the trial court had considered the supplemental deposition testimony of Lehnert. The trial court’s final summary judgment order specified that it had considered the additional Lehnert testimony.
The trial court granted summary judgment on July 5, 2007. It concluded that respondent had shifted its burden on summary judgment (§ 437c, subd. (p)(2)) by presenting evidence that appellants could not establish that Neil was exposed to respondent’s asbestos. It also concluded that appellants could not demonstrate a triable issue of fact regarding exposure. Appellants timely appealed from the subsequent judgment.
II.
Discussion
A. Proof of Causation in Asbestos Litigation.
“In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury. In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendant’s product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead, the plaintiff may meet the burden of proving that exposure to defendant’s product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff’s or decedent’s risk of developing cancer.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982-983 (Rutherford), original italics, fn. omitted.) Exposure to defendant’s product is a “threshold issue in asbestos litigation,” and the plaintiff bears the burden of proof on the issue. (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103 (McGonnell).) “If there has been no exposure, there is no causation.” (Ibid.)
Respondent’s sole argument below (and the only one addressed on appeal) with respect to why appellants could not establish causation on the first, second, and tenth causes of action (for negligence, strict liability, and loss of consortium) was that there was insufficient evidence that Neil was exposed to Calidria. Although respondent cited the requirement in Rutherford, supra, 16 Cal.4th 953 that a plaintiff also prove that the exposure was a medical cause of his injury, it focused only on whether appellants met their initial burden to demonstrate exposure.
With regard to the requirement that plaintiff must first establish exposure, “As recognized by the Ninth Circuit, ‘[t]wo different approaches have been taken by the courts in determining the sort of evidence an asbestos plaintiff must adduce in order to establish a defendant’s products as a legal cause of her injuries.’ [Citation.] The more stringent approach requires particularized proof that the plaintiff came into contact with the defendant’s product. [Citation.] Under the more lenient approach, it is sufficient if the plaintiff proves the defendant’s product was at his or her work site. [Citation.]” (Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655 (Dumin) [affirming grant of partial directed verdict because even under “most generous application of lenient causation standard,” insufficient evidence plaintiff was exposed to defendant’s asbestos]; see also Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 89 [under most lenient causation standards, must be proof that defendant’s asbestos products were present at plaintiff’s work site], disapproved on another ground in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1245.) The Supreme Court in Rutherford declined to endorse a particular standard for establishing the requisite exposure to a defendant’s asbestos products, as that issue was not raised or briefed on appeal. (Rutherford, supra, 16 Cal.4th at p. 982, fn. 12.) The parties on appeal do not direct us to any California opinion deciding the issue, and our independent research has revealed none. The trial court concluded that appellants failed to demonstrate a triable issue of fact as to whether Neil was exposed to respondent’s asbestos; however, it is unclear which standard it applied.
B. Standard of Review.
“A defendant moving for summary judgment has met his or her burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. [Citation.] In such a case, the defendant 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).) If the defendant carries the burden of production, the burden shifts to the plaintiff to make his or her own prima facie showing of the existence of a triable issue of fact. [Citation.] ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (McGonnell, supra, 98 Cal.App.4th at pp. 1102-1103; see also § 437c, subd. (p)(2).) “The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.” (McGonnell at p. 1105.) “On an appeal from an order granting summary judgment, we independently examine the record to determine whether there are any triable issues of material fact. [Citation.] In performing our review, we view the evidence in the light most favorable to plaintiffs as the losing parties, resolving any evidentiary doubts or ambiguities in their favor. [Citation.]” (Id. at p. 1102.)
“Ultimately, the sufficiency of the evidence of causation will depend on the factual circumstances of each case.” (Rutherford, supra, 16 Cal.4th at p. 958.) To demonstrate the existence of a triable issue of fact precluding summary judgment in an asbestos case, mere speculation or conjecture about exposure to defendant’s asbestos is insufficient. (McGonnell, supra, 98 Cal.App.4th at p. 1105; Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal.App.4th 962, 977; Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1289, overruled on another ground in Aguilar, supra, 25 Cal.4th at pp. 854-855, fn. 23.) Likewise, the “mere ‘possibility’ of exposure does not create a triable issue of fact.” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 108.) “It is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.” (McGonnell, supra, 98 Cal.App.4th at p. 1105.) The plaintiff must show at least a reasonable inference or possibility of exposure to defendant’s asbestos-containing products. (Rutherford, supra, 16 Cal.4th at p. 981 [in summary judgment case, “plaintiff need only have shown a reasonable possibility” defendant’s products contributed to injury, original italics]; Chaknova v. Wilbur-Ellis Co., supra, 69 Cal.App.4th at p. 977; Hunter v. Pacific Mechanical Corp., supra, 37 Cal.App.4th at p. 1290 [plaintiff must show “evidence with respect to the time, location and actual circumstances of [his] exposure” to defendant’s asbestos]; Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1420 [reversal of nonsuit where there was sufficient circumstantial evidence to support a reasonable inference of exposure to defendant’s asbestos]; Dumin, supra, 28 Cal.App.4th at p. 656 [circumstantial evidence must be of sufficient weight to support reasonable inference of exposure].)
C. Triable Issue of Fact on First, Second, and Tenth Causes of Action.
Although it is a close question, we conclude that appellants succeeded in establishing a triable issue of fact as to whether Neil was exposed to Ready Mix containing respondent’s asbestos, which is relevant to appellants’ first, second, and tenth causes of action (for negligence, strict liability, and loss of consortium). The trial court itself acknowledged that there was at least a triable issue of fact as to whether Neil was exposed to Georgia-Pacific products. Indeed, respondent does not seriously dispute that Neil used Ready Mix or was exposed to the dust that was produced when he and others sanded it. Instead, its main argument is that there was insufficient evidence that the Ready Mix to which Neil was exposed contained Union Carbide asbestos. It acknowledges that Lehnert’s testimony established that “most of the Ready Mix product manufactured at the Georgia Pacific Chicago plant . . . contained asbestos supplied by Union Carbide,” and that asbestos-free formulas were not available until 1975. (Original italics.) It nonetheless agrees with the trial court’s conclusion that appellants were “unable to submit evidence adequate to complete the required connection between [Georgia-Pacific] products and Defendant’s asbestos fibers” because they “failed to present any evidence to show that the products about which Mr. Lehnert testified were the products to which [Neil] was exposed.”
Respondent’s counsel stressed at oral argument that Neil could not pinpoint exact dates when and locations where he used Ready Mix. She directed this court to a portion of the record where Neil testified that he did not believe he worked with Georgia-Pacific joint compound when he worked “at Josten,” and claimed that this means he was definitely not exposed to the joint compound in 1973 and 1974. Neil testified, however, that Josten was one of two employers for whom he worked when he began as an apprentice painter in approximately 1969, and that Ed Weber, Inc. was his “main” employer. With respect to the relevant time period, Neil testified that he used premixed Georgia-Pacific joint compound “[f]rom the time I started my apprenticeship up and through my years working at Baumeister, Buetou and even into some of the time when we were in business together. So that would be, what, early 80’s? From the early 70’s through the early 80s.”
In moving for summary judgment, respondent produced evidence that it did not sell asbestos to Georgia-Pacific until after 1970, and that after 1970, Georgia-Pacific had multiple suppliers of asbestos. It cited to Georgia-Pacific’s interrogatory responses, which stated that from 1963 to 1977, both Phillip Carey, Inc. and respondent provided asbestos for Ready Mix joint compound. In response, however, appellants provided the deposition testimony of Georgia-Pacific’s Lehnert, which they claim on appeal showed that respondent was the exclusive supplier of asbestos for Georgia-Pacific’s Ready Mix joint compound between 1970 and 1977. Respondent, on the other hand, stresses that Lehnert also testified that Georgia-Pacific produced asbestos-free formulas of joint compound. A review of Lehnert’s testimony, along with the accompanying exhibit, show that respondent somewhat overstates the evidence with respect to Georgia-Pacific’s “asbestos-free” joint compound formulas, because asbestos-free formulas were not produced until 1975 or 1976.
As the trial court observed, Lehnert’s testimony is hearsay, and appellants made no effort to demonstrate that it fell within an exception to the hearsay rule. As the trial court also observed, however, respondent raised no objection on that basis. Having failed to raise this evidentiary objection, respondent waived it. (§ 437c, subds. (b)(5) [evidentiary objections not made at the summary judgment hearing are waived], (c) [court shall consider “all” evidence on summary judgment, except that to which objections have been made and sustained]; Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 140 [where no objection made to otherwise inadmissible evidence submitted in connection with summary judgment motion, defect is waived and evidence is part of the record an appellate court must consider].)
As for whether Georgia-Pacific produced Ready Mix with asbestos from another supplier during the relevant time period, Lehnert testified that between October 21, 1970 and May 4, 1977, all general formulas of Ready Mix manufactured at Georgia-Pacific’s Chicago plant contained respondent’s asbestos. This was consistent with an exhibit to his deposition, which stated that “all general formulas [of Ready Mix] during this period [October 21, 1970 to May 4, 1977] contained SG-210 [respondent’s asbestos].” He was not aware of any instance where Ready Mix was made at one plant but sent to a different region. Although Lehnert testified that Georgia-Pacific produced some formulas of Ready Mix during this time period that did not contain respondent’s asbestos, the duration and scope of the products’ distribution were apparently limited. As Lehnert testified, “Between May 20th, 1974 to December ’74 there was a special request formula, and between March 1st, 1975 to March 23rd, 1976 there was some special trial shipments made. And there were two Ready Mix topping formulas available between May 27th, 1975 and March 22nd, 1976, and also between March 25th, 1974 and March 23rd, 1976. [¶] In addition to those—those were the two Ready Mix. The first date I gave you was the first Ready Mix and the second date was the second Ready Mix which did not contain [respondent’s asbestos]. And then in addition to those the asbestos-free formulas that were made available.” Lehnert additionally testified that asbestos-free Ready Mix was not introduced until 1975 or 1976. Ready Mix “definitely contained” asbestos in 1973 and 1974, according to Lehnert. Moreover, if a customer did not ask for a “special request” formula of Ready Mix, it would receive the general formulas.
Even if the Ready Mix that Neil used while working in Milwaukee came from a plant other than the one in Chicago, an exhibit to Lehnert’s deposition showed that the Ready Mix manufactured at other plants also contained respondent’s asbestos (again, with the exception of certain “asbestos-free formulas”).
Respondent claims that the testimony submitted by appellants “showed there were multiple suppliers of asbestos to Georgia Pacific.” Again, this is an overstatement. The only specific reference to other suppliers in the excerpts of Lehnert’s testimony contained in the record on appeal was testimony about the code designations for the asbestos of Phillip Carey and Johns Manville. However, according to the exhibit to Lehnert’s deposition, Phillip Carey provided Georgia-Pacific with asbestos only up until 1970 (at its Akron, New York plant). There is no reference in the exhibit to Lehnert’s deposition about Johns Manville asbestos, and there is no indication that Ready Mix made at Georgia-Pacific’s Chicago plant contained asbestos from a supplier other than respondent between 1970 and 1977. Lehnert did testify that during various periods between 1974 and 1976, there were two Ready Mix “topping formulas” that “did not contain SG-210 [respondent’s asbestos].” Again, however, there was no specific reference to another supplier, and there was certainly no indication that Ready Mix made between 1970 and 1974 contained asbestos supplied by a company other than respondent.
Citing Garcia v. Joseph Vince Co. (1978) 84 Cal.App.3d 868, respondent claims that “where, as here, multiple suppliers of a product exist, a plaintiff may not avoid summary judgment absent an evidentiary showing that it is more likely than not that the particular defendant actually supplied the injury-causing product.” But the evidence in fact strongly suggests that respondent supplied asbestos for Ready Mix, especially between 1970 and 1974. Moreover, Lehnert testified that Ready Mix “definitely contained” asbestos in 1973 and 1974. Even assuming that there was evidence that Neil was exposed to Ready Mix with asbestos supplied by a company other than respondent, Garcia is still distinguishable. There, plaintiff alleged injury from a single saber, and there were two sabers that could have caused the injury. (Garcia, supra, 84 Cal.App.3d at p. 874.) Here, by contrast, Neil could have been injured by respondent’s asbestos even if he was also exposed to another company’s asbestos.
Dumin, supra, 28 Cal.App.4th 650, upon which respondent also relies, likewise is distinguishable. In that case, plaintiff alleged that he was exposed to an insulation distributed by defendant while he served on a Navy ship in 1953 and 1954, relying on circumstantial evidence that defendant had supplied the product to the shipyard where the ship was home-ported. (Id. at pp. 653, 656.) It was uncertain whether the product was at the shipyard at the relevant time, and there was no evidence about how often the ship came to port or took on insulation supplies, or that the relevant product was among those supplies. (Id. at p. 656.) Moreover, the insulation was “only one of many asbestos insulation products used at the shipyard,” and defendant was not the only distributor of the product during the two years in question. (Ibid.) Contrary to respondent’s suggestion, the fact that there were multiple suppliers of the insulation was not the sole factor in affirming a grant of a directed verdict. Instead, the court also relied on the fact that there was no evidence that the ship where plaintiff served ever received the insulation in the first place. (Ibid.) Again, it is not seriously disputed in this case that Neil was exposed to Ready Mix. The fact that Phillip Carey provided asbestos for Ready Mix at some point between 1963 and 1977 does not preclude a finding that there is a triable issue of fact regarding Neil’s exposure to Calidria in light of Lehnert’s testimony that between October 1970 and May 1977, all general formulas of Ready Mix made in Georgia-Pacific’s Chicago plant contained respondent’s asbestos, and during at least two of those years (1973 and 1974), Ready Mix definitely contained asbestos.
Even applying the “more stringent approach” requiring “particularized proof” that Neil came into contact with Ready Mix containing respondent’s asbestos (Dumin v. Owens-Corning Fiberglas Corp., supra, 28 Cal.App.4th at pp. 655), we conclude that appellants demonstrated a reasonable inference of such exposure. (Id. at p. 656; see also Chaknova v. Wilbur-Ellis Co., supra, 69 Cal.App.4th at p. 977.) It is true, as respondent notes, that appellants could not identify particular jobsites where Neil was exposed to Ready Mix, and did not produce sales or shipping records placing Ready Mix where Neil worked. However, Lehnert’s testimony that general formulas of Ready Mix contained Calidria during the relevant time period at least supported a reasonable inference that Neil came into contact with respondent’s asbestos in that product.
With respect to another product that appellants claimed contained respondent’s asbestos, the trial court focused on the absence of any records from the manufacturing facilities themselves, or any evidence that demonstrated the distribution of the products to the geographic area or specific worksites where Neil worked. Again, wherever Ready Mix was manufactured from about 1970 to 1977, the evidence shows that the general formulas during this time period contained respondent’s asbestos.
In light of our conclusion that there was a triable issue of fact as to Neil’s exposure to defendant’s asbestos, we need not decide whether the trial court erred in shifting the burden to appellants to demonstrate the existence of a triable issue. (§ 437c, subd. (p)(2).) We likewise need not consider appellants’ argument that their due process rights were somehow violated because respondent supposedly made an argument for the first time in its reply brief in the trial court.
Finally, we reject respondent’s argument that we may affirm based on its argument, not reached by the trial court, that as a bulk supplier it had no duty to warn consumers about asbestos. Citing Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, respondent argues that where a bulk supplier of raw ingredients sells its products to a sophisticated purchaser who incorporates the raw material into a finished product, the bulk supplier has no duty to warn the end user of potential hazards. In Artiglio, women who received silicone breast implants sued the company that supplied silicone to a company that manufactured the implants. (Id. at p. 833.) The court held that “raw material suppliers are not liable to ultimate consumers when the goods or material they supply are not inherently dangerous, they sell goods or material in bulk to a sophisticated buyer, the material is substantially changed during the manufacturing process and the supplier has a limited role in developing and designing the end product.” (Id. at p. 839.)
However, “[a]s a matter of law, a bulk supplier of raw asbestos fiber incorporated into a finished product can be subject to strict products liability to an individual suffering from a disease caused by exposure to the supplier’s asbestos.” (Jenkins v. T&N PLC (1996) 45 Cal.App.4th 1224, 1231.) The court in Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178, noted that, unlike in cases that apply the general rule of nonliability for ingredient suppliers, asbestos is not a component material that is usually innocuous, and the manufacturing process does not generally significantly alter asbestos. (Id. at pp. 1190-1191.) Respondent claims that Jenkins and Arena are inapplicable here because they did not specifically address the bulk supplier defense. A similar argument was recently rejected in Garza v. Asbestos Corp., LTD. (2008) 161 Cal.App.4th 651, 658-660, and we reject it as well.
Respondent argued at oral argument that this court may also affirm based on the sophisticated user doctrine. Counsel relied on the recently decided Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, in which the Supreme Court held that the defense applies in California “to negate a manufacturer’s duty to warn of a product’s potential danger when the plaintiff has (or should have) advance knowledge of the product’s inherent hazards.” (Id. at p. 61.) Although respondent pleaded this affirmative defense in its answer, this theory was not developed in the trial court or on appeal. At oral argument, respondent’s counsel argued that the defense is related to the bulk supplier defense, which was addressed on appeal. Although “[s]imilar rules apply” to the two defenses (Cotchett & Cartwright, Cal. Products Liability Actions (rev. ed. 2007) § 2.11[4][c][v], p. 2-81), they are not identical. We note that in Johnson, the court held that an evaporator manufacturer had no duty to warn plaintiff (a specially trained technician) of the dangers of brazing refrigerant lines, where plaintiff knew or should have known of the dangers. (Johnson, supra, at pp. 62, 74.) Here, by contrast, respondent contends that the sophisticated party was Georgia-Pacific, the intermediary that incorporated asbestos into its product. Respondent does not argue that Neil is a “sophisticated user.”
In sum, there is a triable issue of fact as to whether Neil was exposed to Ready Mix containing respondent’s asbestos. Summary adjudication as to appellants’ first, second, and tenth causes of action was therefore inappropriate.
D. Appellants Forfeited Argument on Third And Fourth Causes of Action.
The trial court granted summary adjudication on appellants’ third and fourth causes of action (for false representation and intentional tort (Civ. Code, §§ 1709, 1710)), concluding that appellants failed to address respondent’s argument that the record lacked evidence that it made any representations to Neil, and that no other theory of fraud liability applied. Because appellants fail to raise the issues on appeal, they are waived. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Locke v. Warner Bros., Inc. (1997) 57 Cal.App.4th 354, 368; see also Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140-1141 [appellant has burden of showing error occurred by supporting arguments with appropriate references to the record].)
III.
Disposition
The judgment is reversed in part and affirmed in part. Summary adjudication as to the first, second, and tenth causes of action is reversed. Summary adjudication as to the third and fourth causes of action is affirmed. Each side shall bear its own costs incurred on appeal.
We concur: Reardon, Acting P.J., Rivera, J.