Turley v. Familian Corp. ( 2017 )

Filed 12/22/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
KEITH TURLEY et al.,
Plaintiffs and Appellants,
A149752
v.
FAMILIAN CORPORATION, (Alameda County
Super. Ct. No. RG15762202)
Defendant and Respondent.
Plaintiffs husband and wife sued for asbestos-related injury against numerous
defendants, including defendant Familian Corporation. Familian moved for summary
judgment on the basis that plaintiffs could not show exposure to asbestos in a Familian-
related product. Plaintiffs’ opposition included a declaration from a third party witness
who had not been deposed, who testified in detail to such exposure. The trial court then
continued the motion, allowed the witness to be deposed, and Familian then used portions
of the deposition in support of its reply. The trial court thereafter concluded that the
deposition testimony “conclusively negates” the witness’s declaration testimony as to
exposure; refused to consider it under the principle set forth in D’Amico v. Board of
Medical Examiners (1974) 11 Cal.3d 1 (D’Amico); and granted summary judgment. We
conclude the trial court erred, and we reverse.
BACKGROUND
The Complaint and the Discovery
Plaintiffs Keith Turley (Turley) and his wife Joy Ann Turley (when referred to
collectively, plaintiffs or the Turleys) filed a complaint on March 13, 2015 against some
50 defendants. The complaint alleged six causes of action, on the fundamental basis that
Turley has asbestos-related disease caused by exposure to asbestos-containing products,
1
including valve gaskets, during his 36-year employment at Pacific Gas and Electric
Company (PG&E).
Familian was not named in the original complaint, but was served as a Doe
defendant, and on July 15, 2015 filed its answer.
Both plaintiffs and Familian accuse the other of various sharp discovery practices.1
We will not wade in on this, as we do not deem it germane to the issue before us, which
is whether the summary judgment was proper.
As to the discovery that did occur pertinent to the issue here, it began with
Familian serving “ ‘state all facts’ ” interrogatories on plaintiffs. Plaintiffs’ response
stated that Turley was exposed to asbestos-containing pipe products supplied by
Familian, including “asbestos cement transite pipe, pipe collars, gaskets, elbows, pipe-
repair products and other asbestos products.”
As to the locations where Familian supplied such products, plaintiffs identified the
Kettleman City compressor plant in Avenal, pipelines in Burney, and pipelines in
Bakersfield. Their response did not identify the Willows district compressor station.
As to the documents supporting their position, the Turleys referred to depositions
and other documents, some 11,000 pages in all, including the following: (1) Turley’s
medical records; (2) eight depositions, of Turley, Mrs. Turley, Keith Appleton, Glen
Moon, Gary Mason, Paul Scott, Gail Reed, and Harvey Suddy; (3) unidentified business
records; (4) Familian’s responses to general order standard interrogatories; (5) a list of
depositions by Familian’s former and/or present corporate witnesses in other cases
1
Familian’s respondent’s brief asserts that plaintiffs “should not be allowed to
profit from their wrongdoing,” as the “record in this case demonstrates a remarkable
pattern of discovery obstruction by” plaintiffs. Plaintiffs take issue with Familian’s
description, accusing Familian of “misrepresent[ing]” a trial court order, and also of
improperly relying on the claimed discovery-related issues, asserting that “the constant
refrain running through all of the arguments asserted by Familian is that summary
judgment was properly granted because plaintiffs’ counsel failed to cooperate in
Familian’s efforts to obtain Paul Scott’s deposition.”
2
involving Familian; (6) contents of Familian’s job files, invoices, supply logs, transfer
transactions and sales receipts; and (7) a list of various medical and scientific articles.
Asked to identify witnesses with knowledge of Turley’s claimed exposure to
products “ ‘manufactured/supplied’ ” by Familian, plaintiffs named eight people:
themselves, Mason, Appleton, Moon, Suddy, Reed, and Scott.2
At a case management conference in November, 2015, the case was set for trial for
September 6, 2016.
Against that background, Familian filed the motion leading to the appeal here.
The Motion for Summary Judgment
On June 24, 2016, Familian filed a motion for summary judgment or, in the
alternative, summary adjudication. It was set for hearing on August 26, and thus
plaintiffs’ opposition was due on August 12. The essential argument as to all causes of
action was that plaintiffs could not establish that Turley was exposed to asbestos from
any Familian-related product or that Familian caused his alleged asbestos-related disease.
As Familian itself describes it: “In its motion, Familian used deposition testimony to
establish that [plaintiffs] have no evidence that Turley was exposed to asbestos in a
product manufactured, supplied, sold, or distributed by Familian. Familian also used
[plaintiffs’] factually devoid discovery responses to establish that [plaintiffs] cannot
support their allegations of exposure and cannot obtain such information.”
To put it otherwise, Familian’s motion was not based on affirmative evidence. For
example, there was no declaration from any Familian representative or person most
knowledgeable testifying that Familian did not sell asbestos-containing gaskets. And no
testimony that even if it did, it never sold any such materials to PG&E during the time
that Turley worked there, or it did not supply such materials to the district where Turley
worked. As the Turleys describe it, “all that Familian did was submit plaintiffs’
discovery responses and snippets from the depositions of only some, but not all, of the
2
Plaintiffs’ discovery responses represented that all witnesses were represented by
their counsel of record (Keller, Fishback & Jackson) and could be contacted only through
counsel.
3
witnesses identified in plaintiffs’ discovery responses. In fact, although the plaintiffs’
interrogatory responses identified defendants’ own persons most qualified and corporate
representatives, no deposition transcripts of those identified witnesses were attached to
the motion to show that Familian did not supply those materials.”
A week after it filed its motion, Familian moved to vacate or continue the
September 6 trial date, based on the claim that plaintiffs had obstructed Familian’s effort
to take the deposition of Scott. The motion was heard on July 29, at which the court
ordered the parties to meet and confer and to produce Scott for deposition by August 19.3
This, of course, was after the August 12 due date of plaintiffs’ opposition to the motion.
Plaintiffs filed their opposition on August 12, which among other things included
copies of their supplemental responses to interrogatories. Most pertinent to the issue
here, plaintiffs’ opposition included the declaration of Scott, in which he testified in
pertinent part that he was an apprentice mechanic and warehouseman who worked with
Turley for some six years, from 1981–1987; that he was the person responsible for
ordering and distributing materials in the Willows district; and that on “many occasions”
the replacement gaskets that Turley was exposed to while working in the Willows district
for PG&E in the 1980’s were asbestos-containing—and supplied by Familian. Scott also
testified he personally observed Turley replacing asbestos-containing gaskets in valves at
PG&E’s compressor stations, and on “many occasions” personally observed Turley in the
immediate vicinity of other mechanics replacing asbestos-containing valves at those
stations.
Following the trial court’s order, Scott was in fact deposed for two days, on
August 16 and 17. There, Familian would come to contend, Scott “contradicted many of
3
The order provided in pertinent part as follows: “Familian’s Motion to continue
or vacate trial date is denied, but the discovery cut-off is extended to August 19, 2016 for
the sole purpose of taking the Scott deposition. Parties to meet and confer as to date of
deposition but the defendant must serve the witness with a subpoena unless there is an
express agreement by plaintiffs’ counsel to produce the witness.”
4
the factual and foundational statements made in his declaration,” which thus became the
basis of Familian’s reply.
Familian filed its reply papers on August 19, 401 pages of reply to be precise. The
reply included the “[r]ough,” that is, uncertified, copy of Scott’s deposition. The reply
also included objections to evidence, including specific objections to Scott’s declaration,
on the grounds it was produced after the close of discovery; that the Turleys had blocked
Familian’s efforts to depose him; and that Scott lacked foundation to identify products
that Turley worked with or around as products supplied by Familian.
In response to that reply, plaintiffs objected to Familian’s submission of the rough
transcript on two bases: (1) pages from an uncertified transcript are inadmissible, and
(2) submission of additional evidence in a reply on summary judgment violates due
process.
The court held an initial hearing on the motion on August 26, and took the matter
under submission. Then, by subsequent order the court permitted Familian to submit
certified copies of Scott’s deposition transcript, which Familian did, on August 31.
Plaintiffs again objected to the supplemental evidence on the grounds it was
untimely and violated their due process rights. At the same time, plaintiffs took issue
with Familian’s position that Scott’s deposition contradicted his declaration. Doing so,
plaintiffs pointed to various portions of his deposition testimony, including where Scott
testified that he: (1) ordered, received, and distributed to the mechanics in the Willows
district where Turley worked “a lot” of Familian asbestos-containing gaskets during
1983–1987; (2) knew that the gaskets he ordered from Familian were asbestos-containing
because of the code numbers and labeling in the requisition requests, purchase orders,
packing slips, and invoices relating to those products; (3) knew which gaskets he ordered,
and received, from Familian were asbestos-containing, because he knew the applications
they were used for, (i.e., the valves in the high-pressure and/or high-temperature systems
required the use of asbestos-containing gaskets); (4) knew that he had to be careful to sort
out the asbestos-containing gaskets from non-asbestos gaskets correctly, because using
non-asbestos gaskets in the high-temperature or high-pressure valves was dangerous;
5
(5) knew the asbestos-containing gaskets came from Familian because he personally
ordered them from Familian, and Familian’s name appeared on the packing slips and the
invoices; (6) personally witnessed Turley in the immediate vicinity of other mechanics
replacing asbestos-containing gaskets on high-pressure and/or high-heat valves with
Familian-supplied asbestos-containing gaskets many times through the years; and
(7) personally knew that Turley was frequently in the field supervising valve
maintenance, including the replacement of asbestos-containing gaskets, including those
supplied by Familian.
Plaintiffs also submitted specific portions of Scott’s deposition, which they
claimed “affirmed the statements in his declaration, clarified those statements and
provided further foundation for them.” Such portions included, for example, Scott’s
response when asked how it was that he could testify about the use of asbestos-containing
gaskets supplied by Familian during 1983 to 1987 at the compressor stations where
Turley was exposed, where he said, “When, as I’ve stated and testified before, when
those products came in, it was my job to know that that was the right product. It had tags
on it, the packing slip. And on that packing slip, it listed the material, what it was. It also
had the vendor name on it and Familian’s name was on those packing slips.” In short,
that it was his job to know who supplied the materials that the mechanics used.
Similarly, when asked how he could testify, without speculating, that Turley was
in “the presence of other mechanics working with asbestos gaskets or packing supplied
by Familian,” Scott testified he “observed Mr. Turley in close proximity to different
mechanics while working on these gaskets, taking them off and putting them on.” And,
he added, “I was a natural gas transmission mechanic, journeyman, and an apprentice. I
actually used those gaskets myself. I was with those mechanics when they actually went
into the warehouse, pulled a gasket out and used it on the job. I had personal knowledge
and personal vision, if you will, of them doing this.” Indeed, Scott confirmed that “I’ve
even seen Mr. Turley go in, pull a gasket and bring it out to the mechanic, mainly
because he messed the gasket up going back together and he said, I’ll go and get it for
you right quick.”
6
The trial court held a second hearing on September 9. And on September 15, the
trial court entered an 10-page order granting summary judgment. The order began with a
lengthy discussion concluding that Familian had shifted the burden by its submission of
the Turleys’ discovery responses. The order then discussed for three pages Scott’s
declaration, finding that Scott’s “declaration, standing alone, establishes a sufficient basis
to find personal knowledge.” It overruled plaintiffs’ objection to Scott’s deposition. And
then the order reached the conclusion critical here: that Scott’s testimony “conclusively
negates his declaration’s statements that Familian supplied asbestos laden gaskets and
packing that plaintiff Turley was exposed to.” The order ended with these three
paragraphs:
“Indeed, the deposition demonstrates that, contrary to his declaration, Mr. Scott
can only speculate as to whether any particular gasket or packing material Mr. Turley
was exposed to, was supplied by Familian or that any said gasket or packing material
contained asbestos. See Scott deposition (Familian was not sole source of gaskets);
(unknown what model, size or specification of Familian gaskets); (would have to
speculate to say if any particular occasion Turley exposed to Familian gasket); (not
trained to identify asbestos containing gaskets, only knew from code used by PG&E);
(PG&E used both asbestos and non-asbestos containing gaskets); (would have to
speculate if gasket from Familian contained asbestos); (unknown who manufactured
products supplied by Familian); (unknown what application Familian supplied valves
used for); (unknown what specifications for valves from Familian); (not all packing had
asbestos); (only basis for knowledge of asbestos is PG&E codes and vendor numbers).
“While plaintiffs’ counsel attempted to rehabilitate Scott at his deposition, his
general statement that he continued to endorse his declaration, or that at some unspecified
time he saw Turley working with Familian gaskets and packing, does not establish either
personal knowledge or remove the speculativeness of his testimony. In short, Scott’s
testimony establishes that he cannot offer admissible evidence that creates an issue of fact
as to whether Familian actually supplied asbestos containing products that Turley was
exposed to.
7
“Statements made in a deposition govern and prevail over contrary declarations.
Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613. The credibility of
such testimony is valued ‘so highly’ that affidavits to the contrary may be disregarded.
Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521. While this rule may
not apply where the deposition testimony is ‘fragmentary’ or ‘equivocal,’ or where there
is other evidence in the record that creates an issue of fact, Scalf at 1523-[1524], in this
case, the testimony, oft repeated, is clear and there is no other evidence in the record that
indicates Familian supplied any asbestos containing products that plaintiff Turley was
exposed to.”4
The trial court subsequently entered judgment for Familian, from which plaintiffs
appealed.
DISCUSSION
The Standard of Review
The parties disagree as to the standard of review. Plaintiffs assert that the
“primary standard of review . . . here is the de novo standard applicable to summary
judgment motions.” Familian asserts that the issues raised by plaintiffs involve two
rulings by the court on evidentiary objections which, they claim, are reviewed for abuse
of discretion. Familian’s position is based on the claim that plaintiffs’ appeal is “focused
on two alleged errors where they believe the trial court abused its discretion:
(1) allowing Familian to submit excerpts from Scott’s deposition to support its argument
with its reply; and, (2) disregarding the Scott’s attorney drafted declaration after it found
that Scott’s deposition testimony conclusively negated his declaration.”
The Turleys’ response asserts that Familian’s discussion of the standard of review
“ignores the fact that the very first discussion in the ‘Legal Argument’ section of the
Opening Brief demonstrates that Paul Scott’s deposition testimony itself was sufficient to
4
The trial court also denied as moot Familian’s motion for summary adjudication
on three issues, false representation, intentional tort, and punitive damages.
8
establish the existence of triable issues of material fact, thereby requiring reversal of the
summary judgment.”
We agree with the Turleys.
We set forth the applicable law in Nazir v. United Airlines, Inc. (2009)
178 Cal.App.4th 243, 253–254: “On appeal ‘[w]e review a grant of summary judgment
de novo; we must decide independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law. [Citations.]’ (Intel Corp. v.
Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we exercise our independent
judgment, and decide whether undisputed facts have been established that negate
plaintiff’s claims. (Romano v. Rockwell Internat., Inc. [(1996)] 14 Cal.4th [479,] 487.)
As we put it in Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003)
114 Cal.App.4th 309, 320: ‘[W]e exercise an independent review to determine if the
defendant moving for summary judgment met its burden of establishing a complete
defense or of negating each of the plaintiff’s theories and establishing that the action was
without merit.’ (Accord, Certain Underwriters at Lloyd’s of London v. Superior Court
(2001) 24 Cal.4th 945, 972.)
“But other principles guide us as well, including that ‘[w]e accept as true the
facts . . . in the evidence of the party opposing summary judgment and the reasonable
inferences that can be drawn from them.’ (Morgan v. Regents of University of California
(2000) 88 Cal.App.4th 52, 67.) And we must ‘ “view the evidence in the light most
favorable to plaintiff[] as the losing part[y]” and “liberally construe plaintiff[’s]
evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in order to
resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.” ’ (McDonald v.
Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96–97.)”
Finally, to the extent that there is any ambiguity in the evidence, as Justice Chin
colorfully put it, “ ‘the task of disambiguating ambiguous utterances is for trial, not for
summary judgment.’ ” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541.)
There is another component to the standard of review in this case. Familian
argues that we review the trial court’s evidentiary rulings for abuse of discretion.
9
Plaintiffs on the other hand assert that “[a]though the standard of review for assessing a
trial court’s rulings on evidentiary issues is presumed to be abuse of discretion, there is
academic debate on the issue of whether a trial court’s evidentiary rulings on summary
judgment should be assessed under the same de novo standard applied to all other aspects
of summary judgment. Even the Supreme Court acknowledges this as an issue for
debate, although it has—so far—declined to address it definitively. (Reid v. Google,
Inc.[, supra,] 50 Cal.4th [at p.] 535.)” We noted this issue ourselves, in Nazir v. United
Airlines, Inc., supra, 178 Cal.App.4th at page 255, footnote 4, and in fact, a recent case
has held that such review is de novo. (Pipitone v. Williams (2016) 244 Cal.App.4th 1437,
1451.)
We conclude that even if our review is for abuse of discretion, such discretion was
abused here. (Sargon Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 773 [exercise of discretion is subject to the legal principles governing the
subject].) The trial court was wrong, both legally and factually. We begin with the law
of exposure.
The Law of Exposure
The elements of proof in a case involving asbestos-related injury have been
described by the Supreme Court as follows: “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.”
(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982, fn. omitted (Rutherford);
accord, Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 669–673; Lineaweaver
v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415–1417 (Lineaweaver); see
CACI No. 435.) In short, there are two elements to plaintiffs’ claims: (1) “some
threshold exposure,” and (2) “legal cause.”
While Familian argued below that plaintiffs’ discovery responses were
10
factually devoid with respect to the exposure issue, it did not argue that the responses
failed to establish that any exposure that did occur did not contribute to Turley’s disease.
Nor did it submit the declaration of any expert—doctor, toxicologist, or industrial
hygienist—purporting to establish any such lack of legal causation. In short, the sole
issue raised by Familian in its motion was lack of exposure.
As to exposure, Lineaweaver, a decision by our colleagues in Division One, is
instructive. Lineaweaver involved three consolidated lawsuits by three separate
plaintiffs: (1) a refinery worker who had worked for many years as a laborer and
journeyman boilermaker/welder, (2) a shipyard laborer, and (3) a merchant marine. They
sued numerous asbestos suppliers, but proceeded to trial only against Plant, an asbestos
insulation contractor and supplier of Pabco. The trial court granted a nonsuit as to all
three plaintiffs. (Lineaweaver, supra, 31 Cal.App.4th at p. 1413.) The Court of Appeal
affirmed as to the laborer and the merchant marine, because neither could prove they
were actually exposed to any Pabco material supplied by defendant, and there was no
evidence Pabco was actually used on any of the ships on which they worked. (Id. at
p. 1421.)
But not so as to the refinery worker, as to whom the Court of Appeal reversed.
His evidence, the court held, was sufficient, citing six items of evidence, including that:
“(2) Lineaweaver worked at the Standard Oil refinery from 1950 to 1984, repeatedly
working with and around asbestos insulation; (3) Lineaweaver worked throughout the
sprawling refinery which has insulation over about two-thirds of its pipes and much of its
equipment: (4) Lineaweaver saw boxes of Pabco products at the refinery; (5) Plant was a
significant supplier of asbestos products, performing about 50 percent of the insulating
work at the refinery in the 1960s . . . .” (Lineaweaver, supra, 31 Cal.App.4th at p. 1419.)
So, the court concluded, “[w]hile there was no direct evidence that Lineaweaver
was exposed to Plant-supplied Pabco, the circumstantial evidence was sufficient to
support a reasonable inference of exposure. Unlike Duman . . . , in which we found
insufficient evidence of exposure to a particular asbestos product, plaintiff has established
that defendant’s product was definitely at his work site and that it was sufficiently
11
prevalent to warrant an inference that plaintiff was exposed to it during his more than 30
years of working with and around asbestos throughout the refinery.” (Lineaweaver,
supra, 31 Cal.App.4th at p. 1420.) Or, as the court had earlier put it, in a discussion of
the components to provide causation, “we conclude that the proper analysis is to ask
whether the plaintiff has proven exposure to a defendant’s product, of whatever duration,
so that exposure is a possible factor in causing the disease and then to evaluate whether
the exposure was a substantial factor.” (Id. at pp. 1415–1416.)
The Supreme Court’s most recent pronouncement on the issue is similar, this in
Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167 (Webb). There, Special Electric
brokered the sale of crocidolite, an extremely hazardous asbestos product used in making
a finished product. Webb, a warehouseman, sued Special Electric. A jury found for him,
but the trial court granted judgment notwithstanding the verdict (JNOV). The Court of
Appeal reversed, a reversal affirmed by the Supreme Court, reinstating the verdict for
Webb. (Id. at pp. 177–179.)
The primary focus of Webb was the application of the sophisticated intermediary
doctrine and the duties of raw asbestos suppliers to warn the ultimate consumer or user of
a product. However, at the end of the opinion the Supreme Court held that Webb’s
evidence of exposure was sufficient. This is the language: “Special Electric contends the
evidence was insufficient to show Webb was exposed to crocidolite asbestos it had
supplied. The Court of Appeal rejected this argument, finding substantial evidence of
exposure and causation. We too conclude this alternative ground for affirming the JNOV
order lacks merit. Plaintiffs introduced evidence that Webb was exposed to dust from
Johns-Manville products containing trace amounts of crocidolite at roughly the same time
Special Electric was supplying crocidolite asbestos to Johns-Manville. While evidence of
the link could be stronger, it is nonetheless sufficient for the jury to have found that
Special Electric’s asbestos was a substantial factor in causing Webb’s mesothelioma.
(See Rutherford, supra, 16 Cal.4th at pp. 976–977; Sparks v. Owens-Illinois, Inc. (1995)
32 Cal.App.4th 461, 476.)” (Webb, supra, 63 Cal.4th at p. 193, fn. 12.)
12
Likewise here: Scott’s testimony established that Familian-supplied asbestos-
containing gaskets were frequently used at Turley’s worksite throughout the five years
that Scott was the person ordering, procuring, and distributing such products to the
sites—and that Turley used them.
Moreover, the fact that Familian was not the only supplier of asbestos-containing
gaskets does not warrant the conclusion that Turley did not establish exposure. Indeed,
the asbestos supplier in Webb was not the exclusive supplier of crocidolite asbestos to
Johns-Manville; rather, the evidence at trial was that “Special Electric . . . acting as a
broker for a mine in South Africa, was one of several suppliers of bags of crocidolite
asbestos fiber to Johns-Manville.” (See Webb v. Special Electric Co. Inc. (2013)
214 Cal.App.4th 595, 625, italics omitted (dis. opn. of Rothschild, J.), review granted
June 12, 2013.) In sum, there is no requirement that plaintiffs show that Familian was the
exclusive, or even the primary, supplier of asbestos-containing gaskets to PG&E.
Scott’s declaration, not to mention his deposition testimony, was sufficient to
demonstrate triable issues of material fact as to Turley’s exposure to Familian’s asbestos-
containing products. But the trial court held that conflicts between Scott’s declaration
and his deposition required it to disregard Scott’s declaration. This, too, was error.
Disregarding Scott’s Testimony Was Error
D’Amico
As quoted, in support of its conclusion to disregard Scott’s testimony the court
cited to Visueta v. General Motors Corp., supra, 234 Cal.App.3d 1609 and Scalf v. D.B.
Log Homes, Inc., supra, 128 Cal.App.4th 1510 (Scalf). Both cases discuss the rule
derived from the seminal case of D’Amico, supra, 11 Cal.3d 1, which held as follows:
“ ‘[w]here . . . there is a clear and unequivocal admission by the plaintiff, himself, in his
deposition’ ” and the plaintiff contradicts that admission in a subsequent declaration,
“ ‘we are forced to conclude there is no substantial evidence of the existence of a triable
issue of fact.’ ” (Id. at p. 21, quoting King v. Andersen (1966) 242 Cal.App.2d 606, 610
(hereafter, the D’Amico rule).) As Scalf put it, “In a nutshell, the [D’Amico] rule bars a
13
party opposing summary judgment from filing a declaration that purports to impeach his
or her own prior sworn testimony.” (Scalf at p. 1522.)
Visueta and Scalf are manifestations of the classic D’Amico situation: a party
takes a position under oath in discovery; the opponent moves for summary judgment; and
in opposition the party files a declaration that conflicts with its earlier testimony. In that
situation, courts have held that the court may disregard the declaration. The D’Amico
rule, we conclude, does not apply here.
To begin with, the setting here is not that in D’Amico and its progeny—discovery
followed by declaration. As plaintiffs put it, the situation here is “precisely the reverse:
Paul Scott signed a declaration that was submitted in opposition to Familian’s motion for
summary judgment first and only then was his deposition taken. Thus, the declaration,
when submitted, did not contradict any prior discovery admissions and D’Amico does not
apply.” Plaintiffs argue for some eight pages why this is significant, why it violates due
process, beginning as follows: “Case law has developed two interlocking due process
principles which are triggered in this case. The first is the rule that evidence cannot be
submitted in reply on a summary judgment motion and the second is that if the evidence
is not cited in the moving defendant’s separate statement, it does not exist and the moving
party cannot rely on it to support its motion.” Plaintiffs go on to argue that “[h]ad Scott’s
deposition been taken and the very same references as relied on by the trial court to grant
summary judgment been cited in the separate statement, plaintiffs would have had an
opportunity to address the issues. First, plaintiffs could have cited to the evidence in the
deposition that conforms to Scott’s declaration testimony to show that the evidence was
sufficient to establish ‘that defendant’s product was definitely at his work site and that it
was sufficiently prevalent to warrant an inference that plaintiff was exposed to it . . . .’
during his work there. Furthermore, had Familian made the arguments in its moving
papers that it made in its reply, plaintiffs would have had the opportunity to brief the
issue for the trial court in order to correct its misunderstanding of the evidentiary
requirements for establishing exposure, as discussed above. Because Scott’s deposition
evidence came in at the reply stage, however, plaintiffs did not have the opportunity to do
14
that and, as a consequence, lost their due process right to correct the trial court’s
misunderstanding of the standards that apply, resulting in the grant of summary judgment
and rendering plaintiffs unable to pursue their claims against Familian.”
Familian’s brief does not even mention, let alone respond to, this argument. But
assuming without deciding that the sequence of events does not matter, and that the
D’Amico rule could pertain, we conclude it was error to apply it here—no matter what
standard of review we apply.
As quoted, in D’Amico the Supreme Court held that the court could disregard the
later-prepared declaration that contradicted a “ ‘clear and unequivocal admission.’ ”
(D’Amico, supra, 11 Cal.3d at p. 21.) Price v. Wells Fargo Bank (1989) 213 Cal.App.3d
465, disapproved on other grounds in Riverisland Cold Storage, Inc. v. Fresno-Madera
Production Credit Assn. (2013) 55 Cal.4th 1169, discussed the D’Amico rule, and
ultimately followed its holding. But it did so with cautionary language, noting that “an
uncritical application of the D’Amico decision can lead to anomalous results, inconsistent
with the general principles of summary judgment law. We do not interpret [D’Amico],
however, as saying that admissions should be shielded from careful examination in light
of the entire record. A summary judgment should not be based on tacit admissions or
fragmentary and equivocal concessions, which are contradicted by other credible
evidence.” (Price v. Wells Fargo Bank, supra, at p. 482.)
So, applying D’Amico properly, courts have held that the court may exclude the
evidence where the declaration and the discovery responses are “contradictory and
mutually exclusive.” (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853,
862–863.) Or “diametrically opposed.” (Gray v. Reeves (1977) 76 Cal.App.3d 567, 574.)
Or in conflict. (Scalf, supra, 128 Cal.App.4th at pp. 1522–1523.) Or where the
declaration contradicts “unequivocal admissions” in discovery. (Mikialian v. City of Los
Angeles (1978) 79 Cal.App.3d 150, 162.) None of those descriptions applies here.
15
Disregarding Scott’s Testimony Was Wrong,
Both Factually and Legally
To recap, as quoted above, the trial court determined that “[u]pon consideration of
the Scott deposition excerpts, the court finds that Scott’s testimony conclusively negates
his declaration’s statements that Familian supplied asbestos laden gaskets and packing
that plaintiff Turley was exposed to. Indeed, the deposition demonstrates that, contrary to
his declaration, Mr. Scott can only speculate as to whether any particular gasket or
packing material Mr. Turley was exposed to, was supplied by Familian or that any said
gasket or packing material contained asbestos.” And, the trial court concluded, the “only
basis for knowledge of asbestos is PG&E codes and vendor numbers.”
The trial court’s reliance on the few portions from Scott’s deposition testimony it
cited was wrong, as its summary of Scott’s testimony was neither accurate nor complete.
Further, the court’s demand for such specifics is contrary to law.
Many of the citations by the trial court are used in a misleadingly incomplete way.
For example, Scott testified that when he was ordering gaskets, he knew they were
asbestos-containing based on PG&E’s codes and other vendor numbers. The trial court
does not explain why Scott’s knowledge of the asbestos content derived from such
sources is in any way infirm. Beyond that, the trial court ignored that Scott also testified
that the PG&E codes were necessarily based on content, because certain applications
required asbestos-containing gaskets, and that failure to use the correct type of product
could be dangerous. The trial court also ignored that Scott never testified that the PG&E
codes or the vendor numbers were the only way he knew about the asbestos content of the
products. Rather, he testified that in addition he knew which gaskets supplied by
Familian contained asbestos from the statements on the packing slips and invoices.
Scott’s testimony also included his response how it was he could testify about the
use of asbestos-containing gaskets supplied by Familian during 1983 to 1987 at the
compressor stations where Turley was present during gasket changes. His answer:
“When, as I’ve stated and testified before, when those products came in, it was my job to
know that that was the right product. It had tags on it, the packing slip. And on that
16
packing slip, it listed the material, what it was. It also had the vendor name on it and
Familian’s name was on those packing slips.” Further, Scott confirmed that it was his job
to know who supplied the materials that the mechanic used—indeed, that he specifically
had to keep track of which gaskets were asbestos-containing and which were not, because
using non-asbestos gaskets in the high-temperature or high-pressure valves was
dangerous.
Similarly, when asked how he could testify without speculating that Turley was in
“the presence of other mechanics working with asbestos gaskets or packing supplied by
Familian,” Scott answered that he “observed Mr. Turley in close proximity to different
mechanics while working on these gaskets, taking them off and putting them on.” He
also confirmed that “I’ve even seen Mr. Turley go in, pull a gasket and bring it out to the
mechanic . . . .” And finally, that “I was a natural gas transmission mechanic,
journeyman, and an apprentice. I actually used those gaskets myself. I was with those
mechanics when they actually went into the warehouse, pulled a gasket out and used it on
the job. I had personal knowledge and personal vision, if you will, of them doing this.”
To sum up, there was no direct contradiction between Scott’s declaration and his
deposition testimony with respect to several areas, including: (1) the process and
procedures for ordering, procuring, distributing, and using gaskets as part of his job as
warehouseman; (2) his personal observations as to Turley’s presence at the compressor
stations in the immediate vicinity of mechanics replacing valve gaskets on high-pressure
and/or high-temperature pipelines (which needed asbestos-containing gaskets); and
(3) his personal knowledge about: (a) what types of gaskets, asbestos or non-asbestos, he
ordered and obtained from Familian; (b) how frequently he obtained and distributed
Familian-supplied asbestos-containing products, and for which applications; and (c) how
those products were used. In light of the above, to refuse Scott’s testimony under the
D’Amico rule was error.
As the leading practical treatise puts it, for the evidence to be rejected under
D’Amico, the “[c]ontradiction must be clear and unambiguous.” (Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017), ¶ 10:156:10,
17
p. 10-65.) That is not the setting here. Finally, we note again that to the extent Scott’s
testimony was ambiguous—and we do not conclude it was—summary judgment had to
be denied: “ ‘the task of disambiguating ambiguous utterances is for trial, not for
summary judgment.’ ” (Reid v. Google, Inc., supra, 50 Cal.4th at p. 541.)
Moreover, the court’s apparent belief that summary judgment was appropriate
because Scott could not testify to directly observing any specific incident where he
personally witnessed Turley removing what Scott personally knew to be a Familian-
supplied asbestos-containing gasket or packing was legally wrong. As shown above, to
establish exposure in an asbestos case a plaintiff has no obligation to prove a specific
exposure to a specific product on a specific date or time. Rather, it is sufficient to
establish “that defendant’s product was definitely at his work site and that it was
sufficiently prevalent to warrant an inference that plaintiff was exposed to it” during his
work there. (Lineaweaver, supra, 31 Cal.App.4th at p. 1420.) Scott’s testimony
established that Familian-supplied asbestos-containing gaskets were frequently used on
the many high-pressure and/or high-temperature valves at the two compressor stations
supervised by Turley, and that Turley was commonly present when the work of replacing
the asbestos-containing valves was being done. That testimony created triable issues of
material fact of exposure.
Familian relies on two cases from this District it claims support the summary
judgment here: McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, and
Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650. Neither does.
McGonnell affirmed a summary judgment because the deposition excerpt by declarant
plaintiff showed he had no knowledge of any exposure to defendants’ products, let alone
that any of its products contained asbestos. As our colleagues described it: “All that
exists in this case is speculation that at some time [plaintiff] might have cut into a wall
that might have contained Kaiser joint compound that might have contained asbestos.”
(McGonnell v. Kaiser Gypsum Co., supra, at p. 1105.) That hardly describes Scott’s
testimony here.
18
Dumin, which Familian describes as “similar” to the case here, is not. The Court
of Appeal affirmed a directed verdict, finding insufficient evidence of exposure. And
properly so, as the evidence was not only uncertain as to the date defendant’s products
were present at the shipyard, but plaintiff also failed to show that the product was a
dominant one among many used at the shipyard—or indeed, that defendant’s product was
even among those supplied to the ship. (Dumin v. Owens-Corning Fiberglas Corp.,
supra, 28 Cal.App.4th at pp. 655–656.) This, the court held, would require “a stream of
conjecture and surmise.” (Id. at p. 656.) No such stream is necessary here.
Lineaweaver and Webb deal with the issue of substantial evidence following trial.
A fortiori does the law from those cases apply to summary judgment, where the issue is
whether there is a triable issue of fact. Or, as Rutherford noted in its criticism of Pereira
v. Dow Chemical Co. (1982) 129 Cal.App.3d 865: “Several concerns immediately come
to mind regarding the soundness of the underpinnings of the holding in Pereira. First,
the case arose on a summary judgment motion; hence plaintiff need only have shown a
reasonable possibility that the defendants’ chemical products cumulatively contributed to
his kidney failure, according to his alternative theory of liability in the case. (Pereira,
supra, 129 Cal.App.3d at p. 872.)”5 (Rutherford, supra, 16 Cal.4th at p. 981.)
In ruling on a motion for summary judgment, the court must “consider all of the
evidence” and all of the “inferences” reasonably drawn threrefrom (Code Civ. Proc.,
§ 437c (c)) and must view the evidence and inferences “in the light most favorable to the
opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) That
evidence demonstrates the summary judgment here was wrong.
5
In light of our conclusion, we need not reach plaintiffs’ argument that the
D’Amico rule applies only as to the testimony of a party not, as here, a third party
witness. (Compare Scalf, supra, 128 Cal.App.4th at pp. 1521–1523 [“[p]roperly applied,
D’Amico is limited to instances where ‘credible [discovery] admissions . . . [are]
contradicted only by self-serving declarations of a party.”]; and Preach v. Monter
Rainbow (1993) 12 Cal.App.4th 1441.)
19
DISPOSITION
The summary judgment is reversed. Plaintiffs shall recover their costs on appeal.
20
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Miller, J.
A149752; Turley et al. v. Familian Corp.
21
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Brad Seligman
Counsel:
Pond North, Frank Dennis Pond, Jennifer Cari Rasmussen, Ann I. Park, Previn A. Wick,
Brian Harold Buddell and Michelle P. Tran for Defendant and Respondent.
Arkin Law Firm, Sharon Joellen Arkin; Keller, Fishback & Jackson, Stephen Michael
Fishback and J. Bruce Jackson for Plaintiffs and Appellants.
22