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Short v. Sequoia Ventures, Inc.

California Court of Appeals, First District, Third Division
Apr 30, 2009
No. A121256 (Cal. Ct. App. Apr. 30, 2009)

Opinion


DEANNA SHORT et al., Plaintiffs and Appellants, v. SEQUOIA VENTURES, INC., Defendant and Respondent. A121256 California Court of Appeal, First District, Third Division April 30, 2009

NOT TO BE PUBLISHED

San Francisco County Super. Ct. No. 443568

Siggins, J.

Deanna Short and her husband Gary, now deceased, sued Sequoia Ventures, Inc. and numerous other defendants for personal injuries and loss of consortium resulting from Gary’s exposure to asbestos. Sequoia obtained summary judgment on the ground that plaintiffs failed to offer competent and admissible evidence that Sequoia’s predecessor in interest negligently or defectively designed and/or constructed the Pacific Gas and Electric Company (PG&E) power plant where Gary Short was allegedly exposed to asbestos. We affirm.

BACKGROUND

Sequoia’s predecessor in interest, Bechtel Corporation (Bechtel), designed and constructed the PG&E Antioch power plant (the Antioch plant) between 1949 and 1954. The construction of the plant called for the use of various asbestos-containing materials.

For simplicity, we will refer to both entities as Bechtel.

Short worked as an operator at the Antioch plant between 1964 and 1966. His duties included operating, controlling, and monitoring various boilers and turbines. He frequently worked near insulated steam and hot water pipes, boilers, turbines, heaters, pumps, and asbestos-cement board. Some of the insulation was in a deteriorated condition. Major overhauls performed on piping and equipment would generate large amounts of visible dust from the insulation. Short worked in and around the areas affected by the dust.

Short and his wife moved to Arizona in 1966 and to Idaho in 1975. He was diagnosed with mesothelioma in 2005 and died that year, shortly after filing this asbestos action. Deanna Short and the couple’s adult children subsequently filed an amended complaint against numerous entities, including Bechtel. The causes of action against Bechtel included ordinary negligence, products liability, and premises owner/contractor liability.

Bechtel moved for summary judgment on two grounds. First, it asserted that plaintiffs were unable to prove Short was exposed to asbestos as a result of any work performed by Bechtel during either the construction of the Antioch plant or while Short was employed there. Second, Bechtel argued Short’s claims were barred by the combined effect of Idaho’s statute of limitations and California’s borrowing statute.

Plaintiffs asserted, in opposition to Bechtel’s summary judgment motion, that Short’s asbestos exposure at the Antioch plant was attributable to Bechtel’s design and construction of the plant between 1949 and 1954. Their opposition was supported by an expert declaration from industrial hygienist Kenneth Cohen, M.D. Dr. Cohen opined that the hazards relating to use of asbestos building materials were widely known when the Antioch plant was built, and that Short was likely injured when he inhaled asbestos dust when he was working at the plant.

Short thus contended that “asbestos-containing insulation and transite products specified by [Bechtel] during new construction of the Antioch Plant were handled, removed or otherwise disturbed in [Short’s] presence during his work at the plant, and that decedent was exposed to asbestos fiber and dust released, discharged and emitted from these products into his workplace air” through a process of reentrainment, a term used to describe “the continuous movement of asbestos fiber from a settled state on surfaces to an airborne state” due to activities such as “overhaul and repair work, sweeping, cleaning, walking and vibration-generating movements.”

The court directed the parties to file supplemental briefs addressing why, or why not, Short’s claim was for design negligence, negligent product design or negligent general contractor liability. The parties were also told to brief why, or why not, the essence of the complaint was for professional negligence, and to identify case authority for the theory that a contractor who utilizes asbestos in designing and constructing a facility is thereafter liable solely due to its activities as the designer and contractor. The court also ordered the parties to identify any evidence on which they relied to distinguish Dr. Cohen’s opinion from other California cases that have rejected a finding of liability based upon the theory of reentrainment.

At the conclusion of the last of three hearings on the motion, the court granted Bechtel summary judgment. In its written order, the court explained that it “does not find persuasive plaintiff’s argument that the Antioch plant is a product. Even if that were true, defendant is entitled to summary judgment for plaintiff has failed to offer expert testimony from an expert capable of testifying as to the inadequacies of defendant’s design and construction of this plant. Such testimony is required under Miller v. Los Angeles Cty. Flood Control Dist. (1973) 8 Cal.3d 689 regardless of what legal theory plaintiff pursues.”

The court found that Dr. Cohen’s declaration was irrelevant because he lacked the expertise to testify that Bechtel’s design and construction of the Antioch plant were inadequate. It further found that plaintiffs failed to offer any competent evidence that the Antioch plant was negligently designed or constructed. In light of undisputed evidence that the asbestos was a patent, rather than latent condition in the Antioch plant, the court rejected plaintiffs’ theory that a general contractor may be held liable for a latent defect of property even after it relinquishes control of the facility to the owner.

Short filed this timely appeal from the ensuing judgment.

ANALYSIS

I. Summary Judgment

“ ‘To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff’s cause of action [citations] or show that an element of the cause of action cannot be established [citations]. [Citation.] The defendant “must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.” [Citation.] [¶] The moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial. [Citation.]... Once the moving party has met its burden, the opposing party bears the burden of presenting evidence that there is any triable issue of fact as to any essential element of a cause of action.’ ” (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.)

“In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. [Citation.] The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law.” (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703-704.) “We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ‘ “specific facts,” ’ and cannot rely upon the allegations of the pleadings.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.) “While ‘[s]ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact’ [citation], it is also true ‘[j]ustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.’ [Citation.] ‘A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.’ ” (M.B. v. City of San Diego, supra, at p. 704.)

II. This is Not a Strict Liability Case

In order to assess the propriety of the trial court’s grant of summary judgment, we must determine the nature of the legal theories plaintiffs rely upon to argue Bechtel is liable. Despite some obfuscation that arises from plaintiffs’ suggestion that the Antioch plant is a defective “product,” this appeal does not involve a strict liability claim.

While plaintiffs’ summary judgment briefs are unclear, a fair reading of their written arguments confirms that their claims are restricted to negligence. Although their briefs cite to several strict liability authorities and allude generally to strict liability law, plaintiffs never identified their claim against Bechtel as one for strict liability. As Bechtel aptly noted below, “Even construed as broadly as possible, Plaintiffs’ supplemental brief does not show an intent to pursue a claim against Bechtel under a product defect theory of recovery.”

But if their trial court briefs leave any confusion about their theory of recovery, plaintiffs eradicated any remaining doubt during the summary judgment hearing. Pressed by the court to clarify their legal theory, plaintiffs’ counsel explained that “Bechtel would have to defend itself on a negligence claim. We have to know their negligence, duty[,] breach, causation and damages. That’s their protection. [¶] If they were negligent a long time ago, and in the way they were negligent they envisioned future deterioration of products they’re installing. And they design the methods to be used to maintain those. [¶]... [¶]... They know what the general safety orders require of them, that if they just adhere to them, there’s no issue, then yes, Your Honor, they are called to task to defend their conduct and answer the question did they discharge a duty of ordinary care to avoid injury to others? (Italics added.) Plaintiffs’ counsel later reiterated this theory. “We have always said our claim is for negligence and what they did.”... “[W]e don’t agree there’s a new theory of liability. It’s always been negligence based on the facts of this case.” (Italics added.) And, this: “This is a negligence case, garden variety, and we’ve demonstrated the negligence of them.”

Appropriately, then, plaintiffs’ opening brief in this court unambiguously identifies the issue as whether Bechtel “can be held liable for injuries... which resulted from its negligent conduct in designing and constructing” the Antioch plant; submit that the “[r]esolution of these claims turns on a straightforward application of well established principles of California negligence law to the facts of this case”; and unambiguously state that “[t]he claim is that [Bechtel] failed to use ordinary care in making the plant safe for decedent.” (Italics added.) Yet, in spite of these clarifications, plaintiffs also assert in their appellate briefs that the Antioch plant itself is a defective product, and/or that Bechtel was responsible for installing a defective product—i.e., asbestos—when it designed and constructed the plant. It thus seems that plaintiffs are attempting to raise—or at least imply—a strict liability claim against Bechtel, a theory which cannot be squared with their posture in the trial court that their case has “always been negligence based.” It is too late for plaintiffs to change horses now. “ ‘A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing party.’ [Citation.] The principles of ‘theory of the trial’ apply to motions [citation], including summary judgment motions.” (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29.) We therefore will restrict our discussion to the negligence claims that plaintiffs raised in the trial court to oppose Bechtel’s summary judgment motion and, therefore, were preserved for appeal.

Bechtel also seems to have the better part of the argument that the Antioch plant is not a “product” for purposes of strict liability law. (See Ranchwood Communities Limited Partnership v. Jim Beat Construction Co. (1996) 49 Cal.App.4th 1397, 1414-1415; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1625-1627; Oliver v. Superior Court (1989) 211 Cal.App.3d 86; see also Menendez v. Paddock Pool Const. Co. (Ariz.App. 1991) 836 P.2d 968.)

III. The Trial Court Correctly Granted Summary Judgment

Plaintiffs’ claims, as they evolved during the course of the summary judgment proceedings, are premised on the notion that Bechtel negligently specified the installation of “defective,” i.e., asbestos-containing, materials in designing and building the Antioch plant. It was therefore plaintiffs’ burden to prove that Bechtel’s conduct in designing and building the Antioch plant fell below the standard of care owed by a provider of professional services, viz., the duty to exercise the skill, knowledge, and competence ordinarily possessed by other members of the profession under similar circumstances. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130; Estate of Beach (1975) 15 Cal.3d 623, 635; see 3 Levy et al., Cal. Torts (2008) Professional Liability, § 30.01[1]-[2], pp. 30-5 to 30-6.)

Plaintiffs conceded that they could not prove Bechtel performed construction or other work at the Antioch plant during Short’s tenure.

Bechtel argued, and the trial court found, that plaintiffs failed to offer competent evidence that its work on the Antioch plant fell below the applicable standard of care. We agree. In the context of negligent design or construction, a plaintiff can generally satisfy its burden of proof only by proffering expert evidence of the applicable standard of care and the defendant’s deviation from that standard. As the California Supreme Court explained in Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702-703, cited by the trial court, “It was not for nonexpert minds to determine whether [the builder] failed to exercise due care in the construction of the home. Building homes is a complicated activity. The average layman has neither training nor experience in the construction industry and ordinarily cannot determine whether a particular building has been built with the requisite skill and in accordance with the standards prescribed by law or prevailing in the industry.” (Id. at pp. 702-703, fn. omitted.) The Miller court’s observation of the need for expert testimony is all the more true when the building at issue is a power plant, a far more complex structure than a home.

Miller recognizes an exception to the expert evidence requirement when the alleged negligence entails “failures on the part of the builder which are so obvious, if not bizarre, that they present no problem in the determination of his negligence, as for example the installation of a fireplace without a chimney or of a second floor without any means of access to it.” (Miller v. Los Angeles County Flood Control Dist., supra, 8 Cal.3d at p. 702, fn. 15.) But such an obvious or bizarre failure is not presented in this case. Neither the professional standard of care in relation to the use of asbestos that prevailed in the 1940’s and 1950’s nor whether Bechtel’s design and construction work was in keeping with that standard is a matter a jury could resolve with hindsight or from common experience. Even were we to view this as a question of ordinary, rather than professional negligence, as plaintiffs have at times maintained, expert testimony would be necessary to establish whether Bechtel failed to act with ordinary care (see generally Rowland v. Christian (1968) 69 Cal.2d 108, 112) in light of the practices and information available at that time.

The trial court correctly observed that plaintiffs failed to offer any expert evidence of the prevailing standard of care when the Antioch plant was designed and constructed. Dr. Cohen’s declaration does not address the standard of care, and there is no showing that Dr. Cohen possesses the relevant expertise to testify on that point. Plaintiffs implicitly admit as much when they restrict their arguments about the Cohen declaration to the admissibility and value of his testimony about “asbestos reentrainment.” While reentrainment, if supported by the facts, might be relevant to causation of Short’s mesothelioma, Dr. Cohen’s declaration provides no information as to the standard of care for designers and contractors in the 1940’s and 1950’s and whether Bechtel’s use of asbestos-containing materials in the Antioch plant fell below that standard. The court correctly ruled that plaintiffs failed to discharge their burden of offering competent and admissible evidence establishing Bechtel’s duty and breach. Accordingly, it correctly granted summary judgment.

To be perfectly clear, we express no opinion on the sufficiency or value of the Cohen declaration on that point.

In light of our conclusion, we will not consider Bechtel’s additional arguments that any potential liability arising from its work on the Antioch plant is (1) time-barred, and (2) foreclosed by the “completed and accepted” doctrine, under which a builder or designer of a real property improvement owes no duty to a third party injured by a patent defect after the owner accepts the completed improvement. (See Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 711-715.)

DISPOSITION

The judgment is affirmed.

We concur: McGuiness, P.J., Jenkins, J.


Summaries of

Short v. Sequoia Ventures, Inc.

California Court of Appeals, First District, Third Division
Apr 30, 2009
No. A121256 (Cal. Ct. App. Apr. 30, 2009)
Case details for

Short v. Sequoia Ventures, Inc.

Case Details

Full title:DEANNA SHORT et al., Plaintiffs and Appellants, v. SEQUOIA VENTURES, INC.…

Court:California Court of Appeals, First District, Third Division

Date published: Apr 30, 2009

Citations

No. A121256 (Cal. Ct. App. Apr. 30, 2009)