Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING. Petition for writ of mandate. Aurelio Munoz, Judge. Writ denied. Los Angeles County Super. Ct. No. BC376529
McKenna Long & Aldridge, William J. Sayer and Margaret I. Johnson for Petitioner.
No appearance for Respondent.
Waters, Kraus & Paul, Paul C. Cook and Michael B. Gurien for Real Parties in Interest, Helen P. Washington and Dana Washington.
ASHMANN-GERST, J.
This is an action brought by real parties in interest Helen P. Washington (Helen) and others for the wrongful death of John H. Washington, Jr., (John) due to his exposure to asbestos (wrongful death action). At issue is the trial court’s denial of a motion by petitioner Union Carbide Corporation (Union Carbide) to preclude the use of John’s deposition from a personal injury action he filed in Texas (Texas action) to prove liability in the wrongful death action. According to Union Carbide: (1) John’s deposition is inadmissible under Code of Civil Procedure section 2025.620, subdivision (g) and Evidence Code section 1291, subdivision (a)(2) because Union Carbide did not have the motive and opportunity to elicit sufficient deposition testimony from John to support a summary judgment motion in the wrongful death action; (2) permitting the use of John’s deposition will violate due process; and (3) even if John’s deposition is admissible, it should have been excluded pursuant to Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272 (Peat) after his law firm, Waters & Kraus, LLP (Waters & Kraus), engaged in an abusive litigation practice by filing the Texas action because (a) Texas limits depositions to six hours per side, (b) Texas has a less onerous burden of proof for summary judgment, (c) Union Carbide had no motive or opportunity to obtain adequate discovery to support summary judgment in a similar California action, and (d) Waters & Kraus intended to dismiss the Texas action, file a new personal injury action on John’s behalf in California and object to any attempt to redepose John on the grounds that he was too ill. We conclude that John’s deposition is admissible, and his deposition should not be precluded. The petition is denied.
One of the plaintiff’s is Dana Washington (Dana). It is clear from the record that she is John’s daughter. The other plaintiffs are Anthony McKinney, Helen McKinney, and Kenneth Harris. From the record, it is impossible to discern their relationship to John. Only Helen and Dana are represented by counsel in connection with Union Carbide’s petition.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTS
From 1964 to 1996, John worked in the maintenance department at the Los Angeles Unified School District. He worked with equipment that may have contained asbestos (boilers, gaskets, pumps, steam traps and valves), joint compounds that may have contained asbestos (Bondex, Georgia Pacific, Goldbond, Kaiser Gypsum and Paco), and insulation.
John was diagnosed with mesothelioma in December 2006. In January 2007, he contacted Waters & Kraus, a law firm experienced in asbestos litigation. On May 21, 2007, Waters & Kraus filed the Texas action and alleged multiple tort claims on behalf of John based on his exposure to asbestos-containing products, and a loss of consortium claim on behalf of Helen. Union Carbide was served as a defendant on May 24, 2007. A codefendant, Crane Company, filed a motion to dismiss the Texas action based on inconvenient forum and, subject thereto, an answer to the Texas action.
John was deposed at his home in Huntsville, Alabama in July 2007 on the 19th, 20th, 25th and 26th. Counsel for various defendants asked questions, but counsel for Union Carbide, Brennon D. Gamblin (Gamblin), opted not to conduct an examination. In total, the deposition lasted only about five hours. Within the next few days, John and Helen filed a first amended complaint and a second amended complaint. But then, a month later, they dismissed the Texas action without prejudice.
On the heels of dismissing the Texas action, John and Helen filed a similar personal injury action in California and once again named Union Carbide as a defendant. As before, John and Helen were represented by Waters & Kraus. When Union Carbide noticed John’s deposition at a Los Angeles location, Waters & Kraus objected on the grounds that John resided in Huntsville, Alabama and that he was too ill to attend in any event. Counsel for Union Carbide withdrew the notice of John’s Los Angeles deposition.
On December 21, 2007, John passed away. Subsequently, Helen and the other plaintiffs filed the wrongful death action.
Union Carbide moved to exclude John’s deposition testimony on the grounds that the testimony was inadmissible and, alternatively, that it should be precluded because Waters & Kraus had engaged in an abusive litigation practice. In particular, Union Carbide argued that Waters & Kraus was guilty of utilizing a practice of filing asbestos actions in Texas, taking advantage of Texas law limiting depositions to six hours per side, dismissing the actions in Texas in lieu of identical actions in California and then objecting to further depositions in California as a way of denying defendants the right to adequate discovery. Union Carbide provided evidence that Waters & Kraus switched cases from Texas to California on other occasions after the depositions were taken under Texas law.
The trial court opined that the “filing of the Texas action was deliberately done to prevent the defendants from having adequate discovery and to prevent the filing of motions for summary judgment because of the California rule requiring specific questions about product identification.” The trial court concluded that because “the defendants have effectively been prohibited from questioning the decedent[,] they are barred from presenting motions for summary judgment.” However, the trial court ruled that John’s deposition was admissible. In closing, the trial court stated: “[T]his is a grisly game of asbestos litigation that occurs in the courts. This court is of the opinion that it cannot grant the relief requested, but perhaps an appellate court can.”
We summarily denied Union Carbide’s petition for writ of mandate. Following a petition for review with the California Supreme Court, the case was transferred back to us and we issued an order to show cause.
STANDARD OF REVIEW
We review evidentiary rulings for an abuse of discretion. (Cassel v. Superior Court (2009) 179 Cal.App.4th 152, 165, fn. 3.) The same deferential standard of review applies to rulings on motions requesting a trial court to preclude evidence under its inherent authority “to police an abuse of the litigation process.” (Peat, supra, 200 Cal.App.3d at pp. 286, 291.) “An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.]” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 158.) We are ordinarily bound by the trial court’s factual findings. However, we are not bound if those factual findings are not supported by substantial evidence. (Foot’s Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897, 902.) Finally, because this appeal subsumes questions regarding whether Union Carbide can seek summary judgment, it bears noting that we independently review the “[i]nterpretation of governing statutes or the application of law to undisputed facts.” (Zenith Ins. Co. v. Workers’ Comp. Appeals Bd. (2008) 159 Cal.App.4th 483, 490.)
DISCUSSION
I. John’s deposition is admissible under statute.
According to Union Carbide, John’s deposition was inadmissible because it did not have sufficient opportunity and motive to cross-examine him. This challenge fails because Union Carbide makes no attempt to demonstrate that the trial court’s finding of admissibility was not supported by substantial evidence. (People v. Foss (2007) 155 Cal.App.4th 113, 126 [“When an appellant fails to apply the appropriate standard of review, the argument lacks legal force”].) Regardless, contrary to Union Carbide’s contention, we conclude that John’s deposition is admissible under section 2025.620, subdivision (g) and Evidence Code section 1291, subdivision (a)(2).
A. The applicable law.
Under statutorily defined circumstances, a deposition may be used against a party who was present at the taking of the deposition. (§ 2025.620.) For example, a deposition may be used when an action was brought in any state, “and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest.” (§ 2025.620, subd. (g).) Additionally, “[a] deposition previously taken may also be used as permitted by the Evidence Code.” (§ 2025.620, subd. (g).) The Evidence Code provides that evidence of former testimony, including a deposition taken under oath (Evid. Code, § 1290, subd. (c)), “is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶]... [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” (Evid. Code, § 1291, subd. (a)(2).)
A defendant’s interest and motive in cross-examination at separate proceedings must be similar, not identical. ‘“[T]here is no magic test to determine similarity in interest and motive to cross-examine declarant. Factors to be considered are matters such as the similarity of the party’s position in the two cases, the purpose sought to be accomplished in the cross-examination, and whether under the circumstances a thorough cross-examination of declarant by the party would have been reasonably expected in the former proceeding.’ [Citation.]” (People v. Ogen (1985) 168 Cal.App.3d 611, 617; According to our Supreme Court: “As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence [does] not depend on whether defendant availed himself fully of that opportunity. [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 975 (Zapien); see also People v. Wilson (2005) 36 Cal.4th 309, 346 [if a party had opportunity to cross-examine declarant, former testimony is admissible under Evidence Code section 1291, subdivision (a)(2), notwithstanding ineffectiveness of cross-examination, including “defense counsel’s failure to explore certain areas”].)
B. Application of the first sentence of section 2025.620, subdivision (g).
Helen and Union Carbide were both parties to the Texas action, they are both parties to the wrongful death action, and the subject matter is the same, i.e., the central issue in both actions is whether Union Carbide and manufacturers of asbestos products caused John’s mesothelioma. As a result, we easily conclude that John’s deposition is admissible under section 2025.620, subdivision (g). But even if John’s deposition were inadmissible under section 2025.620, subdivision (g), it is admissible under Evidence Code section 1291, subdivision (a)(2).
C. Application of Evidence Code section 1291, subdivision (a)(2).
Under the Evidence Code, we must ask whether Union Carbide had the right and opportunity in the Texas action to cross-examine John with an interest and motive similar to the one that it harbors in the wrongful death action. The trial court expressly ruled that John’s deposition was admissible and thereby made implied findings in favor of Helen and the other plaintiffs. In our view, those implied findings are supported by substantial evidence and must be upheld. (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 848.)
As a party to the Texas action, Union Carbide had a similar right and opportunity to cross-examine John. We recognize that Texas law provides that “[n]o side may examine or cross-examine an individual witness for more than six hours.” (Tex. Rules Civ. Proc., rule 199.5(c).) But Texas law also provides that “the procedures and limitations set forth in the rules pertaining to discovery may be modified in any suit... by court order for good cause.” (Tex. Rules Civ. Proc., rule 191.1.) We presume that a Texas court would have granted Union Carbide reasonable relief upon request, whether that was an order expanding the length of the deposition or an order postponing the deposition to permit the defendants time to adequately prepare. In any event, it bears pointing out that John was very ill and his ability to testify was impaired.
If John’s deposition was premature, as Union Carbide suggests, it had the option of moving for a protective order or moving to quash the deposition notice. (Tex. Rules Civ. Proc., rules 192.6 & 199.4.) Union Carbide’s claim that Gamblin had no opportunity to confer with colleagues or national counsel about areas of inquiry and follow up is meritless because it is unsupported by any evidence, and because Gamblin never sought relief from a Texas court. Specifically, we wish to highlight that Gamblin did not submit a declaration.
Attached to the deposition transcript is a letter from John’s treating oncologist, Dr. John M. Waples, dated July 17, 2007, stating that John’s “condition is such that he is on continuous oxygen, is in severe pain and is wheelchair bound. He is unable to exert himself in any physical activities and his breathing is so labored and difficult that he is unable to sustain any long conversations. [¶] [John] is incapable of traveling any distance for a deposition and I advise that any depositions take place in his home [in Huntsville, Alabama] and be limited to less than two hours, if he is indeed able to tolerate that length of time.”
In addition, at issue in both cases was whether asbestos-containing products manufactured by Union Carbide caused or contributed to John’s mesothelioma. If the Texas action went to trial, then Union Carbide needed to know all of the evidence that John possessed so that Union Carbide could mount a defense. By itself, this is sufficient to infer that Union Carbide had a similar interest and motive to ask questions regarding John’s exposure to Union Carbide’s products. (People v. Stevens (2007) 41 Cal.4th 182, 200 [when applying the substantial evidence test, a reviewing court must consider the evidence and all reasonable inferences].) Under Zapien, it is irrelevant that Gamblin did not avail Union Carbide of the opportunity to cross-examine John. We, of course, are not free to forge a rule different from Zapien. (State of California v. Riverside Superior Court (2000) 78 Cal.App.4th 1019, 1029 [“As a lower court, we are bound by decisive pronouncement of the Supreme Court”].)
Union Carbide argues that it did not have a similar interest and motive. Texas Rules of Civil Procedure rule 166a(i) provides: “After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.” This rule permits a defendant to use the strategy of remaining silent during a plaintiff’s deposition and forcing the plaintiff to produce evidence of the defendant’s liability in connection with a motion for summary judgment. In California, the rule is different. A defendant moving for summary judgment must affirmatively demonstrate that an action lacks merit by negating an element of the plaintiff’s action or establishing that “the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69–73 (Scheiding).) It is true that there is an inference from these disparate rules that Union Carbide had different litigation interests and motives vis-a-vis depositions in the Texas action and the wrongful death action, but it is a conflicting inference we must ignore. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632–1633 [all reasonable inferences in favor of the judgment must be indulged].)
II. The use of John’s deposition will not violate due process.
Union Carbide contends that it will be denied due process if John’s deposition is admitted into evidence. We disagree.
Our federal and state Constitutions guarantee that a government cannot deprive a person of life, liberty or property without due process of law. (Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 736.) Procedural due process in a judicial proceeding requires notice and an opportunity to be heard. (Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1331, fn. 6.) Included within the right to be heard is the right to produce evidence and cross-examine witnesses. (Estate of Buchman (1954) 123 Cal.App.2d 546, 559.) Here, Union Carbide had notice of John’s deposition and the right to cross-examine him. That Union Carbide chose not to avail itself of that opportunity is irrelevant. And, importantly, it still has a right to trial in the wrongful death action. Due process is satisfied.
We find it significant that People v. Friend (2009) 47 Cal.4th 1, 67, reaffirmed that when the requirements of Evidence Code section 1291, subdivision (a)(2) are met, admitting former testimony into evidence does not violate a criminal defendant’s constitutional right of confrontation. If it satisfies the confrontation clause, we see no reason why it does not satisfy due process.
III. The trial court did not err when it refused to preclude John’s deposition pursuant to its inherent authority.
Union Carbide argues that we must reverse the trial court’s ruling because it failed to exercise its discretion to preclude John’s deposition. As we discuss, the law and facts support the challenged order.
A. The applicable law.
Courts have “fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. [Citation.]” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967). “When the plaintiff has engaged in misconduct during the course of the litigation that is deliberate, that is egregious, and that renders any remedy short of dismissal inadequate to preserve the fairness of the trial, the trial court has the inherent power to dismiss the action.” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 764 (Slesinger).) Courts can use their power in a less drastic way, too. They can “exercise their ‘basic power to insure that all parties receive a fair trial’ by precluding evidence.” (Peat, supra, 200 Cal.App.3d at p. 288; Mylan Laboratories, Inc. v. Soon-Shiong (1999) 76 Cal.App.4th 71, 81, [“courts have inherent power to curb abuses and promote fair process in litigation and can preclude evidence to insure that all parties receive a fair trial”].) And, as held by Peat, a court has “the inherent power to preclude evidence to cure abuses or overreaching involving confidential information, such as the merger with one’s opponents’ expert.” (Peat, supra, 200 Cal.App.3d at pp. 286–287.)
The inherent power of a court is not unlimited. That power “may only be exercised to the extent not inconsistent with the federal or state Constitutions, or California statutory law. [Citations.]” (Slesinger, supra, 155 Cal.App.4th at p. 762.) Indeed, “inherent powers should never be exercised in such a manner as to nullify existing legislation or frustrate legitimate legislative policy. [Citation.]” (Ferguson v. Keays (1971) 4 Cal.3d 649, 654 (Ferguson).)
B. The fair trial issue.
Though the trial court opined that the defendants were barred from presenting motions for summary judgment, the trial court did not find that Union Carbide or any other party would be deprived of a fair trial. Impliedly, the trial court found that a fair trial was possible even if John’s deposition was admitted. The trial court’s implied finding that Union Carbide can still obtain a fair trial is supported by substantial evidence. To provide guidance, we also conclude that Union Carbide is not barred from seeking summary judgment.
In the answers to master discovery requests in the Texas action, John stated that he worked with and around equipment and joint compounds that may have contained asbestos. He provided a list. When he was deposed, he testified that he worked with drywall and used dusty joint compounds. He breathed in the dust. He also used the joint compounds on pipes and for repairing small cracks in walls. Some of the brands he worked with were Bondex, Georgia Pacific, Goldbond, Kaiser Gypsum and Paco. Alphonso Everly (Everly) helped John do maintenance work in the boiler rooms and on dry wall. Bill Reese also helped with the drywall.
In working with the boilers and equipment in the boiler rooms, John sometimes had to remove insulation and it was dusty. He testified that he was never warned about the dangers of asbestos. He mainly worked at a school named Narbonne High School, but he worked at other schools as well. For a couple of weeks, John was sent to an elementary school to remove asbestos. There were times that he helped put new insulation on pipes. John did not know who manufactured or installed the boilers at Narbonne High School, nor did he know that they contained asbestos or who supplied the insulation.
Helen answered interrogatories requesting information about the dates and places of John’s exposure to asbestos. She averred that John was assigned as a maintenance worker at Bridge School from 1964 to 1966 and to the maintenance department and boiler room at Narbonne High School from 1966 to 1986. In addition, she claimed that John was exposed to boilers containing asbestos and their auxiliary equipment, and also joint compounds containing asbestos. She listed the manufacturers of the equipment and products containing asbestos and stated her belief that the manufacturers obtained asbestos fibers from Union Carbide, among others. Helen provided information about the physicians John saw for his mesothelioma and provided their addresses. She attached John’s medical records to her discovery responses and referred the defendants to a record service where they could obtain medical, imaging and billing records. Finally, Union Carbide was provided with records of John’s employment and earnings.
Everly was deposed for approximately 20 hours.
The evidence and reasonable inferences support the conclusion that Union Carbide can receive a fair trial. John’s short deposition was often repetitive, with him answering the same and similar questions over and over about where he worked, what he worked with, and what he knew. A review of the deposition transcript reveals that while he could identify certain products and describe his exposure, he possessed little other information that was specific to the defendants. And from Helen’s discovery responses, it appears that the theory of the wrongful death action as to Union Carbide is that it provided asbestos fibers to manufacturers of products John worked with. It was impossible for John to have personal knowledge of who the manufacturers got their materials from. Whether Helen and the other plaintiffs can prove exposure to Union Carbide’s asbestos fibers, or whether Union Carbide can prove the opposite, will depend on Union Carbide’s internal records of whether it supplied asbestos fibers to the manufacturers identified as providing products John was exposed to; the records of the product manufacturers as to who they purchased asbestos fibers from; records of the Los Angeles Unified School District regarding who it purchased equipment and products from; and, potentially, expert testimony. There is a reasonable inference that Union Carbide can mount a defense without having deposed John in California.
Because Union Carbide’s arguments are so generalized, it gives us no insight into the potential basis for its legal exposure. We are left to the inferences available from the record. If Union Carbide supplied or produced joint compounds and insulation, this is a fact outside the record, and outside argument. The incompleteness of the picture is part of the reason Union Carbide’s motion failed.
Because John did not identify Union Carbide products in his testimony, we fail to see how Union Carbide would be prejudiced by it at trial. Simply put, it does not establish Union Carbide’s liability. In any event, the trial court was not provided with Everly’s deposition. Suffice it to say, it was impossible for the trial court to find prejudice without a fully developed record. Further, Union Carbide can move for summary judgment by either: (1) providing evidence that its asbestos fibers were not used in any of the products witnesses say John used or (2) propounding discovery to Helen and the other plaintiffs, obtaining factually devoid discovery responses and using those responses to prove that they cannot establish John’s exposure. (Great American Ins. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 451 [“[a] defendant moving for summary judgment may rely on ‘factually devoid discovery responses’ to show that the plaintiff’s cause of action has no merit”].) Though the trial court believed that Union Carbide was barred from moving for summary judgment, it did not sufficiently appreciate the reach of section 437c. Apparently, the trial court interpreted Scheiding as holding that a defendant in an asbestos case cannot obtain summary judgment unless it confirms the lack of exposure to the defendant’s product through deposition questions directed at the decedent. The Scheiding court, however, did not purport to create a special rule for motions for summary judgment in asbestos cases. Nor did it have the power to rewrite section 437c. It merely confirmed the rule that California does not permit a defendant to obtain summary judgment unless it produces evidence or demonstrates that the plaintiff’s discovery responses are factually devoid. (Scheiding, supra, 69 Cal.App.4th at pp. 83–84.)
Our analysis could stop here.
C. The issue of abusive litigation practices.
The trial court did not find that Waters & Kraus engaged in an abusive litigation practice. However, the trial court offered its opinion that Waters & Kraus filed the Texas action to prevent the defendants from obtaining adequate discovery and filing motions for summary judgment. While the trial court viewed this as “a procedural ploy that is permissible because it is not specifically prohibited,” it also believed that “the practical problems for the courts and the defendants are many.” We wish to clarify that the trial court’s musings are not supported by the record, and to offer guidance to trial courts and litigants.
There is no evidence that Waters & Kraus filed the Texas action for an improper purpose. In particular, there is no evidence that Waters & Kraus knew or should have known that John possessed product identification information relevant to Union Carbide, that Union Carbide’s counsel would not ask any product identification questions at John’s deposition, and that somehow John would be able to profit in a later proceeding in California. Also, as we have demonstrated, Union Carbide is not precluded from seeking summary judgment or mounting a defense. This strongly implies that Waters & Kraus did not do anything objectionable.
On its face, there is nothing suspicious about the filing of the Texas action. At the time the Texas action was filed, John and Helen had residences in Alabama and California. Nonetheless, venue was proper in Texas. (Tex. Civ. Prac. & Rem. Code, § 71.031 [providing that an action for personal injury caused by an act or omission occurring outside Texas may be filed in Texas even if the plaintiff is a resident of a foreign state or country].) The Texas action alleged exposure to products manufactured, sold or supplied by, inter alia, Yarway Corporation and Flowserve Corporation. They had their principal places of business in Texas. Another defendant, Kelly-Moore, Inc., allegedly manufactured its Paco joint compound in Texas. Based on the foregoing, we easily conclude that Waters & Kraus had a legitimate, lawful reason to file an action on John and Helen’s behalf in Texas.
There is at least one additional reason Waters & Kraus could have chosen to file the Texas action instead of pursing an action in California. John was gravely ill when the Texas complaint was filed in May 2007, which made it unlikely that a judgment would be rendered in his personal injury action prior to his death. Texas recognizes the recovery of pain and suffering damages after a party’s death. (Tex. Civ. Prac. & Rem. Code, § 71.021; Harris County Hosp. Dist. v. Estrada (Tex. 1993) 872 S.W.2d 759, 764.) California does not. (§ 377.34; Gailing v. Rose, Klein & Marias (1996) 43 Cal.App.4th 1570, 1577 [the right to general damages for pain and suffering is lost as a matter of law by statute when the plaintiff dies, and an attorney who is negligent in bringing an asbestos case to trial before the plaintiff’s death is subject to a lawsuit for legal malpractice].)
Union Carbide claims that it is apparent that Waters & Kraus had no intention of pursuing the Texas action. We disagree. Waters & Kraus filed two amended complaints in the Texas action. These acts are consistent with the intent to pursue the Texas action, not to dismiss it in lieu of an action in California.
As for why the Texas action was dismissed, a Waters & Kraus attorney named John S. Janofsky submitted a declaration. He noted that several defendants made motions to dismiss the Texas action based on inconvenient forum, and that because such objections to jurisdiction can be heard in Texas cases as late as 30 days before trial (Tex. Civ. Prac. & Rem. Code, § 71.051, subd. (d)), there was a possibility that the Texas action could be fully litigated in Texas and then dismissed. Mr. Janofsky declared that John and Helen sought to avoid this outcome by taking the precautionary step of dismissing the Texas action and filing a new action in California. This seems to us to be a cogent and benign reason for the dismissal of the Texas action and the filing of the underlying action in California.
We are not concerned that Waters & Kraus waited until John was deposed to dismiss the Texas action. The “longevity of a plaintiff who has contracted a nearly always fatal asbestos-related disease such as lung cancer or mesothelioma cannot be predicted with any accuracy. Nor can counsel foretell whether and at what point in time the respiratory ravages of these and other asbestos-related diseases such as asbestosis will necessitate the hospitalization of a plaintiff.” (60 AmJur.2d (1996) Trials § 110, p. 303.) With no accurate prediction as to John’s longevity, Waters & Kraus had a responsibility to preserve his testimony for trial by deposing him before his condition worsened to the point where no deposition could be taken.
Though Union Carbide infers that Waters & Kraus improperly delayed filing the Texas action to gain an unfair advantage, we conclude that Union Carbide’s inference is unreasonable. John and Helen contacted Waters & Kraus in January 2007 and the Texas action was filed on May 21, 2007. Asbestos cases are complex and typically involve numerous defendants and difficult medical issues. Thus, they require extensive prefiling investigation. (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1069 [“investigation of a potential claim is normally and reasonably part of effective litigation, if not an essential part of it”].) There is no evidence that Waters & Kraus could have or should have investigated more quickly, or that it was not permitted to take four months to perform its due diligence.
There was evidence that Waters & Kraus refused to produce John for his noticed deposition in California on December 10, 2007. We do not perceive any bad faith. There was evidence from John’s treating oncologist, Dr. Waples, that John was critically ill. He had severe shortness of breath, bronchial congestion and fatigue. He required continuous oxygen, and he was on a morphine drip for pain. Due to his illness and medication, John was incoherent much of the time and unable to engage in meaningful conversation. He was incontinent and entirely dependent on others and therefore bedridden. Dr. Waples declared: “It is my opinion to a reasonable medical probability that [John] should not be subjected to the rigors of a deposition of any length whatsoever. It is my opinion to a reasonable medical probability that the stress of a deposition will hasten [John’s] decline and/or cause his death, as deposition-related stress will likely adversely affect his overall health status and immune system.” Union Carbide withdrew its deposition notice, and John subsequently died on December 21, 2007. Given John’s health, we decline to find fault with Waters & Kraus for objecting to a deposition that would have required John to fly to California from his home in Alabama at a time when his oncologist opined that he was too sick to be deposed.
Union Carbide claims that Waters & Kraus has a pattern and practice of filing cases in Texas, dismissing the cases after the plaintiff’s deposition has been taken, and then filing in California without producing the plaintiff for deposition in order to prejudice the defendants. However, we cannot discern from the record how long Waters & Kraus has been representing asbestos plaintiffs; how many asbestos lawsuits Waters & Kraus has filed since that time; how many lawsuits were filed in Texas as opposed to other states; how many of the actions filed in Texas were litigated to conclusion in Texas; how many of the lawsuits filed in Texas were dismissed and thereafter refiled in California; how many plaintiffs were redeposed in California after a deposition in Texas was taken; and how, or even if, any defendants failed to receive a fair trial because of this alleged pattern and practice.
It is our firm belief that before a trial court finds an attorney guilty of egregious misconduct sufficient to support evidence preclusion, a trial court is well advised to conduct a thorough evidentiary hearing. (See Peat, supra, 200 Cal.App.3d at p. 281.) And parties are well advised to request one. Otherwise, the appellate record may be too thin for appropriate review.
DISPOSITION
The petition for writ of mandate is denied. The temporary stay is vacated. Real parties in interest Helen and Dana are entitled to recover the cost of these proceedings.
We concur: BOREN, P. J., CHAVEZ, J.