Lovelace v. Elementis Chemicals CA3 ( 2014 )

Filed 4/3/14 Lovelace v. Elementis Chemicals CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
JAMES A. LOVELACE,
Plaintiff and Appellant, C071503
v. (Super. Ct. No.
34201100104560CUASGDS)
ELEMENTIS CHEMICALS, INC., as Successor in
Interest, etc., et al.,
Defendants and Respondents.
After being diagnosed with mesothelioma, James A. Lovelace sued numerous
corporate defendants based on asbestos exposure sustained during his years of plumbing
and construction work. Lovelace’s operative complaint alleged his mesothelioma was
caused by a number of products, including joint compounds manufactured by Georgia-
Pacific LLC (Georgia-Pacific) and Kaiser Gypsum Company (Kaiser) and containing
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asbestos supplied by Elementis Chemical, Inc. (Elementis).1 Elementis moved for
summary judgment by asserting Lovelace had no evidence to indicate Elementis supplied
asbestos for any product to which Lovelace was exposed. Lovelace provided deposition
testimony that he recalled seeing the Kaiser and Georgia-Pacific names on the joint
compound containers he had used. Elementis objected to the evidence on grounds (1)
Lovelace had not authenticated the documentary evidence purporting to show Elementis
supplied the asbestos to Kaiser or Georgia-Pacific, and (2) Lovelace’s testimony about
seeing the names of the manufacturers on the joint compound products was inadmissible
hearsay. The trial court sustained both evidentiary objections and granted summary
judgment in favor of Elementis.
On appeal, Lovelace argues his deposition testimony identifying Kaiser and
Georgia-Pacific products was not hearsay, fell within the “ancient document” exception
to the hearsay rule, and belongs to a class of evidence for which a hearsay exception
should be judicially created.
Because Lovelace makes no argument regarding the alternative grounds on which
the judgment granting summary judgment rests, we are compelled to affirm.
DISCUSSION
This court will not reverse a judgment for error by the trial court unless the
appellant also demonstrates the error was prejudicial. (Cassim v. Allstate Ins. Co. (2004)
33 Cal. 4th 780, 800 (Cassim).) The California Supreme Court has explained, “Our state
Constitution provides that ‘[n]o judgment shall be set aside, or new trial granted, in any
cause, . . . for any error as to any matter of procedure, unless, after an examination of the
1 Elementis’s liability was premised on its status as successor in interest to
Harrisons and Crosfield (Pacific) Inc. Because the distinction between the two
companies is not relevant to this appeal, we refer to the companies collectively as
Elementis.
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entire cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.) ‘The
effect of this provision is to eliminate any presumption of injury from error, and to
require that the appellate court examine the evidence to determine whether the error did
in fact prejudice the defendant. Thus, reversible error is a relative concept, and whether a
slight or gross error is ground for reversal depends on the circumstances in each case.’ (6
Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 1, p. 443.)”
(Cassim, at p. 800.) “ ‘[A] “miscarriage of justice” should be declared only when the
court, “after an examination of the entire cause, including the evidence,” is of the
“opinion” that it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.’ ” (Ibid.)
In granting summary judgment, the trial court stated the exclusion of Lovelace’s
deposition testimony meant “Elementis has demonstrated that Lovelace has no evidence
tethering his alleged injuries to the Calidria asbestos for which Elementis is responsible.”
The trial court further noted: “However, even assuming that Lovelace’s evidence
establishes that Elementis distributed the Calidria asbestos to Kaiser Gypsum and
Georgia-Pacific, and further assuming that such evidence establishes that Calidria
asbestos was an ingredient in the joint compounds to which Lovelace was exposed, there
is no admissible evidence that Lovelace was exposed to Kaiser Gypsum joint compound
or Georgia-Pacific joint compound with any frequency, regularity and/or proximity.”
Lovelace does not contend the trial court erred in excluding for lack of
authentication his evidence purporting to show Elementis supplied asbestos for the Kaiser
and Georgia-Pacific products to which he was exposed. Thus, even if we agreed with
Lovelace’s arguments about the exclusion of evidence on hearsay grounds, we would
nonetheless be compelled to affirm based on the unchallenged exclusion of evidence for
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lack of authentication.2 Lovelace’s claims against Kaiser and Georgia-Pacific cannot
succeed without evidence of causation. Therefore, we must affirm the judgment.
(Cassim, supra, 33 Cal.4th at p. 800.)
DISPOSITION
The judgment is affirmed. Elementis Chemicals, Inc., shall recover its costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
HOCH , J.
We concur:
RAYE , P. J.
ROBIE , J.
2 Even though Elementis argues this appeal must be dismissed for failure of
Lovelace to demonstrate prejudice, Lovelace offers no response and has not filed
a reply brief.
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