Opinion
B227387
11-28-2011
LOUIS WEBSTER, as Successor in Interest etc., Plaintiff and Appellant, v. EXXONMOBIL OIL CORPORATION, Defendant and Respondent.
Simon, Eddins & Greenstone and Brian P. Barrow for Plaintiff and Appellant. McKenna, Long & Aldridge, David K. Schultz, William J. Sayers, and Jayme C. Long for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC421501)
APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth Allen White, Judge. Affirmed.
Simon, Eddins & Greenstone and Brian P. Barrow for Plaintiff and Appellant.
McKenna, Long & Aldridge, David K. Schultz, William J. Sayers, and Jayme C. Long for Defendant and Respondent.
Plaintiff sued defendant for personal injuries allegedly caused by exposure to asbestos at defendant's refinery. At the close of plaintiff's case-in-chief, the trial court granted defendant's motion for nonsuit on several grounds, including the lack of evidence of exposure to asbestos at the refinery. In this appeal from the judgment, we conclude that the nonsuit was properly granted and we affirm.
While this appeal was pending, we received notice of plaintiff William Webster's death on March 31, 2011, and the designation of his son, Louis Webster, as plaintiff's personal representative and successor in interest.
BACKGROUND
Plaintiff alleged that he suffered from malignant pleural mesothelioma as a result of his exposure to asbestos-containing products in the workplace. During his 40-year career, plaintiff worked as a boiler tender in the Navy from 1950-1954, a boiler operator for Filtrol Corporation from 1954-1958, and an industrial painter at various locations in Southern California from 1958-1992.
Plaintiff sued defendant Exxonmobil Oil Corporation (Mobil) on a premises liability theory. Plaintiff alleged that he was exposed to asbestos insulation fibers while working on several occasions, for several weeks at a time, as a painter at Mobil's refinery in Torrance (the refinery).
Between 1975 and 1977, plaintiff worked at the refinery for several weeks while employed by a painting contractor, William Morris. According to plaintiff's testimony, although he did not see the removal of insulation by Mobil employees (he testified that contractors, not employees, removed insulation), he saw "[a] little bit" of sweeping and cleaning up of loose insulation by Mobil employees. Plaintiff testified that "[t]hey broomed it, and picked it up and carried it off, just like we had to do when we would go back over it . . . because it wasn't clean enough for us to paint. Too much dirt and stuff around it." He testified that it was "a dusty process" and that "[y]ou can't get away from" breathing the dust. Plaintiff's son, Louis Webster, who had worked with his father at the refinery sometime between 1975 and 1977, corroborated his testimony.
Louis Webster testified at trial that the insulation that was being cleaned up by the Mobil employees was "[o]ff-white in color and a — a bluish-gray type of color." On cross-examination, however, Louis was impeached with his deposition testimony in which he conceded that he did not "recall anything in particular that [he] saw Mobil employees doing when [he was] at the Torrance refinery." He also conceded that he did not "recall seeing any outside contractors performing work at Mobil while [his] father was there," and had no "specific recollection of seeing anyone else removing insulation at Mobil."
Between 1978 and 1990, plaintiff again worked at the refinery for several weeks while employed by another painting contractor, Wilson & Hampton. Plaintiff testified that he did not see the removal of insulation by Mobil employees, but that he saw "a little" sweeping and cleaning up of loose insulation by Mobil employees.
Plaintiff could not identify the name or manufacturer of the loose insulation that he had seen at the refinery. In order to prove that he had been exposed to asbestos at the refinery, plaintiff attempted to show that the loose insulation contained asbestos because of its color.
Plaintiff produced three canisters that each contained a "demonstrative" sample of insulation. The trial court marked the three canisters as exhibit 274, but did not admit them into evidence. After plaintiff was shown the three samples, he was asked, "which ones, if any, are representative of the insulation that you saw removed at the Mobil refinery when you work[ed] for William Morris?" At this point, Mobil raised a foundational objection, which was sustained. The trial court cautioned plaintiff's counsel that there was no evidence "that what he observed was the removal of insulation. You're putting words in his mouth. [¶] . . . [¶] . . . You need to really be careful in your questioning, because he obviously has memory issues, and I don't want you suggesting the answer."
Plaintiff's counsel nevertheless repeated the question: "Can you tell me which of those demonstratives, if any, represent the style or color of insulation you saw removed by the Mobil employees?" After the trial court overruled Mobil's foundational objection, plaintiff selected the "[b]lue" or "[b]lue green" sample as similar in color to the loose insulation that he had seen at the refinery while working for William Morris. Plaintiff did not identify the other two samples in exhibit 274, which were both white.
Plaintiff was then asked to identify the sample that resembled the loose insulation that he had seen at the refinery while working for Wilson & Hampton. Mobil again objected on foundational grounds, but the trial court overruled the objection. Plaintiff again identified the same blue or blue-green sample, which he described as "[t]he middle one there, whatever it is, I guess. I don't know." When plaintiff was asked why he remembered that specific insulation, plaintiff replied, "It was just there. It was the only one there was, I guess."
On cross-examination, plaintiff was impeached with his deposition testimony that he could not recall what the insulation looked like, how old it was, or whether it contained asbestos. He was also impeached with his verified interrogatory responses in which he did not identify any asbestos exposure from pipe insulation at any of his job sites, including the Mobil refinery.
Plaintiff presented the testimony of Charles Ay, a "Certified Asbestos Consultant," who was an insulator from 1956 to 1981. Ay, who has a high school education, is certified by the Environmental Protection Agency to supervise the removal of asbestos. Ay testified that, to his knowledge, the "overwhelming majority of" insulation materials used at refineries contained asbestos. He further testified that the only gray-green insulation used at refineries was a product named Unibestos, which contains amosite asbestos, which is about 80 to 85 percent asbestos.
In order to preclude Ay from testifying that Unibestos was present at the refinery during the period of plaintiff's alleged exposure, Mobil objected on foundational grounds that because Ay had not visited the refinery since 1959 and had not reviewed the relevant "Mobil specifications" documents, Ay lacked the requisite knowledge to identify Unibestos as an insulation product that was present at the refinery during the period of plaintiff's alleged exposure. The trial court sustained the objection. The trial court also sustained Mobil's objection that Ay's proposed testimony regarding the conditions and practices at other refineries was irrelevant because Ay had not visited the Mobil refinery since 1959, and "[w]e don't know if the refinery was in the same or similar condition. We don't know if the trades practiced in the same way in 1950 as they did in the '70s and '80s. It's not relevant."
Based on the above evidentiary rulings, the trial court admitted Ay's testimony that Unibestos contains asbestos and has a unique gray-green color, but excluded his testimony that Unibestos was present at the refinery during the period of plaintiff's alleged exposure. Accordingly, Ay testified in relevant part as follows: "Most all the insulations that we talked about that you find in the thermal industry are white, off white. Unibestos is a gray green, so the color would be gray green. [¶] Q And how is that unique from the other asbestos insulation materials that you just described? [¶] A Unibestos is all amosite. The others are primarily chrysotile with some amosite. [¶] Q To your knowledge and in your experience as an insulator, were there any other insulation materials, thermal insulation products that had that color that Unibestos had? [¶] A No. No. It was unique by . . . itself. [¶] Q So if someone were working at a refinery in the 1970s and saw insulation on a pipe that had this dark green grayish color, what would be your opinion as to what it was? [¶] MS. LONG: Lacks foundation. [¶] THE COURT: Sustained. [¶] Q BY MR. EDDINS: To your knowledge, was Unibestos the dark green, dark gray asbestos used at the Mobil facility in Torrance? [¶] MS. LONG: Objection. Relevance. Lacks foundation. [¶] THE COURT: Sustained as to time frame."
Given that Ay had prepared the three canisters marked as exhibit 274, Mobil anticipated that Ay would be asked to identify the blue-green sample as Unibestos. In order to exclude this testimony, Mobil objected that Ay had failed to disclose the existence of the canisters at his deposition, despite being asked whether he intended to use demonstrative aids at trial. Mobil objected that because it received no notice of the canisters prior to trial, it was unfairly deprived of an opportunity to test and examine the canisters, and was "completely ambushed." The trial court deferred ruling on the objection until the completion of plaintiff's evidence, if any, concerning the presence of Unibestos at the refinery during the relevant period.
When it became apparent that plaintiff had no evidence that Unibestos was present at the refinery during the period of plaintiff's alleged exposure, the trial court took up the objection to Ay's proposed identification of the blue or blue-green sample of Unibestos. The lack of any evidence concerning the presence of Unibestos at the refinery, coupled with the prior ruling that Ay was not qualified to testify to the presence of Unibestos at the refinery, led the trial court to sustain the objection. The trial court explained that, in light of plaintiff's damaging admission in his deposition testimony that he was unable to describe the loose insulation that he had seen at the refinery, it would be misleading and "highly prejudicial" to allow Ay to identify the green or blue-green sample of insulation as Unibestos. Accordingly, the jury was not told that the blue-green insulation in exhibit 274 was Unibestos.
Plaintiff does not challenge this ruling on appeal.
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At the close of plaintiff's case-in-chief, Mobil filed a written motion for nonsuit. The motion was based on several grounds, including plaintiff's failure to prove that he was exposed to asbestos at the refinery (citing McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103).
In support of the motion, Mobil argued in relevant part that plaintiff had made a number of damaging admissions at his deposition—particularly his inability to describe the insulation that he had seen at the refinery—that he could not avoid through the use of the canisters. Mobil stated: "Plaintiff's counsel's stunt with the canisters does not prove causation and was simply that: a stunt. As the court admonished, this use of the canisters was improperly 'suggestive,' 'prejudicial' and 'useless.' There is no evidence in the record regarding what the canisters represent and whether they resemble any type of insulation that was used at the Torrance refinery when Plaintiff allegedly worked there. This is especially troublesome where Plaintiff's memory is admittedly 'zilch,' and he stated initially that he did not know if he ever worked at the Mobil Oil refinery. Plaintiff also just pointed to one particular canister and stated that the insulation was 'blue green, whatever.' With such a limited memory, having Plaintiff point to an unidentified canister with bluish green material inside, does not constitute substantial evidence of exposure. Similarly, throughout his five day deposition, Louis [plaintiff's son] never mentioned seeing any 'bluish-gray type' insulation at any refinery, let alone at the Mobil Oil refinery. Regardless, no expert has opined this insulation was at the Mobil refinery or that it contained asbestos. [¶] Therefore, there is no competent evidence that Plaintiff was exposed to asbestos at the Mobil Oil refinery." (Fns. omitted.) Mobil cited D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D'Amico) and Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150 (Mikialian) for the proposition that in motions for nonsuit, a plaintiff's trial testimony does not constitute substantial evidence if it contradicts his deposition testimony.
In opposition to the motion for nonsuit, plaintiff argued that his trial testimony, when coupled with the trial testimony of his son and Charles Ay, was sufficient to support a finding that he was exposed to asbestos at the refinery. Plaintiff's counsel stated in relevant part that plaintiff "and his son gave corroborative testimony regarding their work at the Mobil refinery in Torrance during the mid-1970s. Both testified to being present not only while insulation contractors removed 'bluish-gray' or 'gray-green' insulation materials from piping, but also while Mobil employees cleaned up with brooms and bins. Both testified to the dust that was created by the removal and clean-up process and [plaintiff] himself testified that he inhaled that dust. Charles Ay, in turn, testified that the 'overwhelming majority' of insulation materials used at refineries contained asbestos. Specifically, Ay testified about a type of insulation called 'Unibestos,' which was 95 percent amosite asbestos and was 'grey-green' in color. Based on this evidence, the jury could reasonably infer that [plaintiff] was, in fact, exposed to asbestos at the Mobil refinery in Torrance."
At the hearing on the nonsuit motion, Mobil again cited the legal principle that in motions for nonsuit, a plaintiff's trial testimony does not constitute substantial evidence if it contradicts his deposition testimony. Mobil's counsel stated that, "with respect to the deposition admissions, admissions against interest [are] of a very high credibility value. They are admissions. They are in evidence. And the Court is properly relying on that in coming to the conclusion, the [D'Amico] doctrine comes into play during nonsuits, as the Court is aware."
The trial court granted the motion for nonsuit on several grounds, including plaintiff's failure to establish that he was exposed to asbestos at the refinery. The trial court stated in relevant part: "In order to prove that Plaintiff's mesothelioma was caused by his work at the Mobil refinery in Torrance, Plaintiff must first prove that he was exposed to asbestos there. 'If there has . . . been no exposure, there is no causation.' McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103. Evidence of claimed asbestos exposure cannot be 'slight and tenuous,' and 'ambiguous and bare testimony' is insufficient. Smith v. AC and S., Inc. (1994) 31 Cal.App.4th [77], 89." The trial court stated that this case was similar to McGonnell, in which the plaintiff "was able to show that asbestos-products were used at plaintiff's job-sites, and had an expert witness opine that plaintiff had been exposed to asbestos from defendants' products, [but] the court ruled that this evidence was insufficient to create a triable issue of fact in terms of causation. McGonnell at 1102, 1105, 1106."
DISCUSSION
I. Standard of Review
"In reviewing a judgment entered upon a grant of a motion for nonsuit after the close of the plaintiff's case-in-chief (Code Civ. Proc., § 581c), [fn. omitted] the appellate court reviews the entire record of the trial court (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581) and views the evidence in the light most favorable to appellant. (Freeman v. Lind (1986) 181 Cal.App.3d 791, 799.) We do not weigh the evidence or consider the credibility of the witnesses who have testified; rather we are required to accept as true the evidence most favorable to the plaintiff, disregarding conflicting evidence. (LaMonte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517.) '"'The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.'"' [Fn. omitted.] (Freeman v. Lind, supra, 181 Cal.App.3d at p. 799.)" (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1327.)
"Because a successful nonsuit motion precludes submission of plaintiff's case to the jury, courts grant motions for nonsuit only under very limited circumstances. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117.) A trial court may not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.)" (DiPalma v. Seldman (1994) 27 Cal.App.4th 1499, 1505-1506.) "Although 'a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion or conjecture, reversal is warranted if there is "some substance to plaintiff's evidence upon which reasonable minds could differ. . . ." [Citations.] Only the grounds specified by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit. [Citations.]' (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 839.)" (DiPalma v. Seldman, supra, at p. 1506.)
II. The Evidence Was Insufficient to Support a Finding That Plaintiff Was Exposed to Asbestos at the Refinery
Mobil argues that, in light of the damaging admissions contained in plaintiff's deposition testimony, the evidence at trial was insufficient to support a finding of exposure to asbestos under the principles set forth in D'Amico and Mikialian. Mobil states in its respondent's brief that plaintiff and his son "attempted at trial to ignore their deposition admissions and testify to different facts on the fly, without any explanation for the contradictions." "Not only does the [opening brief] omit any discussion of the Websters' deposition admissions, it does not mention, let alone attempt to distinguish, [D'Amico andMikialian]. Thus, it does not challenge this independent ground supporting the nonsuit." We conclude that Mobil is correct.
"The rule stated in D'Amico is that the assertion of facts contradictory to deposition testimony by affidavit does not constitute "'substantial evidence of the existence of a triable issue of fact'" for the purpose of denying a motion for summary judgment. A fortiori, trial testimony simply contradicting a clear and unequivocal admission in a deposition cannot require denial of a nonsuit." (Mikialian, supra, 79 Cal.App.3d at p. 161.)
"The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in other contexts (see Evid. Code, §§ 1220-1230) admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits. (See generally Bauman, California Summary Judgment: A Search For a Standard (1963) 10 U.C.L.A. L.Rev. 347, especially pp. 350-351, 357-360.)" (D'Amico, supra, 11 Cal.3d at p. 22.)
In this case, the deposition testimony of plaintiff and his son contained clear admissions that neither could recall what the insulation at the refinery looked like, how old it was, or whether it contained asbestos. Moreover, in his verified interrogatory responses, plaintiff failed to identify any asbestos exposure from pipe insulation at any of his job sites, including the Mobil refinery. As in Mikialian, "No attempt was made to withdraw or explain these admissions. Testimony of plaintiff simply contradicting these admissions did not constitute substantial evidence creating an issue of fact." (Mikialian, supra, 79 Cal.App.3d at p. 158.)
In light of the damaging admissions in deposition testimony of plaintiff and his son that neither could recall or describe the insulation that was present at the refinery, the trial court correctly disregarded plaintiff's reliance on the blue or blue-green insulation contained in exhibit 274 to establish that plaintiff was exposed to Unibestos at the refinery. Given that the insulation contained in exhibit 274 was properly disregarded, Ay's testimony concerning Unibestos was irrelevant. Accordingly, we need not discuss the claims of evidentiary error pertaining to his testimony. We also need not reach the remaining issues concerning standard of care, concealed condition, and retained control.
Under the well-established rule that "If there has been no exposure, there is no causation" (McGonnell v. Kaiser Gypsum Co., supra, 98 Cal.App.4th at p. 1103), we conclude that the motion for nonsuit was properly granted.
DISPOSITION
The judgment is affirmed. Mobil is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.