Collin v. CalPortland Co.

Filed 7/1/14 Certified for publication 7/30/14 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
VERNA LEE COLLIN, C063875
Plaintiff and Appellant, (Super. Ct. No.
34200900045133CUASGDS)
v.
CALPORTLAND COMPANY et al.,
Defendants and Respondents.
VERNA LEE COLLIN, C065180
Plaintiff and Appellant, (Super. Ct. No.
34200900045133CUASGDS)
v.
J-M MANUFACTURING COMPANY, INC.,
Defendant and Respondent.
1
After Loren A. Collin was diagnosed with mesothelioma, he and his wife Verna
Lee Collin sued 22 entities for negligence, strict liability, false representation, intentional
tort/failure to warn, alter ego, and loss of consortium, alleging Loren was exposed to
asbestos from the defendants’ products or activities when he worked in various
construction trades.1
Plaintiff now appeals from the grant of summary judgment in favor of four
defendants: CalPortland Company (CalPortland), Kaiser Gypsum Company, Inc. (Kaiser
Gypsum), J-M Manufacturing Company, Inc. (J-MM), and Formosa Plastics Corporation
USA (Formosa), named as an alter ego of J-MM. Plaintiff contends those defendants did
not show that plaintiff does not possess and cannot reasonably obtain evidence of
exposure to an asbestos-containing product for which defendants are responsible; but
even if the burden shifted to plaintiff, the evidence is sufficient to support an inference of
exposure. Plaintiff also claims J-MM and Formosa did not establish that Loren was a
sophisticated user who knew or should have known of the potential risks and dangers of
using J-MM’s asbestos cement pipe.
Our discussion is organized by defendant: part I addresses CalPortland, part II
involves Kaiser Gypsum, and part III pertains to J-MM and its alleged alter ego Formosa.
We conclude summary judgment was properly granted in favor of CalPortland and Kaiser
Gypsum, because they met their initial burdens on summary judgment and the evidence
and reasonable inferences would preclude a reasonable trier of fact from finding (without
speculating) that Loren was exposed to one of their asbestos-containing products.
Regarding J-MM and Formosa, however, summary judgment was not proper.
The evidence, viewed in the light most favorable to plaintiff, demonstrates a triable issue
1 This court granted Verna Lee Collin’s motion to substitute herself as her husband’s
successor in interest after he died. For clarity we will refer to Mr. and Mrs. Collin as “the
plaintiff” and to each of them by his or her first name only.
2
of fact as to whether Loren was exposed to asbestos from a J-MM product. In addition,
J-MM and Formosa have not established that they are entitled to summary adjudication
as a matter of law based on the sophisticated user defense.
We will affirm the judgments in favor of CalPortland and Kaiser Gypsum and
reverse the judgments in favor of J-MM and Formosa.
BACKGROUND
Plaintiff brought a personal injury action against 22 defendants, alleging that
Loren developed peritoneal mesothelioma because of occupational exposure to
defendants’ products or activities from 1955 through 1957 and 1959 through the 1990’s.
CalPortland, Kaiser Gypsum, J-MM and Formosa are among the named defendants in
plaintiff’s lawsuit. The complaint alleges counts for negligence, strict liability, false
representation, intentional tort/failure to warn, alter ego and loss of consortium.
CalPortland and Kaiser Gypsum separately moved for summary judgment, while
J-MM and Formosa separately moved for summary judgment or summary adjudication.
Each defendant said plaintiff cannot establish that Loren was exposed to an asbestos-
containing product for which the defendant is responsible.
CalPortland argued that despite several opportunities to state facts supporting his
claims, Loren did not say he was exposed to “Colton gun plastic cement,” which was the
only asbestos-containing cement CalPortland manufactured and sold. Plaintiff responded
that a trier of fact could infer from the similarities between the plastic cement product
Loren said he encountered on jobsites, and Colton gun plastic cement, that Loren was
exposed to the CalPortland product.
According to Kaiser Gypsum, it stopped making or selling asbestos products after
1976, and Loren cannot show he encountered a Kaiser Gypsum asbestos product because
he cannot say when he encountered their product. Plaintiff countered that although Loren
cannot pinpoint exactly when he was exposed to a joint compound manufactured by
Kaiser Gypsum, he said he was exposed to dust from Kaiser Gypsum joint compound
3
during his career in construction from the mid-1950’s to 1995, and Kaiser Gypsum
manufactured a joint compound containing asbestos from the mid-1950’s through 1975.
According to plaintiff, a reasonable inference of exposure can be drawn from the fact that
during Loren’s career in construction, Kaiser Gypsum manufactured a joint compound
with asbestos for 20 years, whereas it manufactured an asbestos-free joint compound for
only two years.
J-MM’s motion for summary judgment or summary adjudication asserted that
plaintiff cannot prove J-MM caused the plaintiff’s injuries because J-MM was not liable
for asbestos cement pipes sold prior to its formation in 1983, and plaintiff has no
evidence of any exposure to asbestos cement pipe after 1979. J-MM also argued it had
no duty to warn Loren of the potential risks and dangers of working with asbestos cement
pipe because Loren was a sophisticated user of the product.
Plaintiff named Formosa as an alter ego of J-MM. Formosa’s motion for summary
judgment or summary adjudication asserted the same arguments advanced by J-MM.
In opposition to the motions by J-MM and Formosa, plaintiff pointed to Loren’s
discovery responses which stated that he was exposed to asbestos from Transite asbestos
cement pipe through the early 1980’s. Plaintiff also pointed to evidence that Transite was
a trade name for J-MM’s asbestos cement pipe. Regarding the sophisticated user
defense, plaintiff said the defense did not apply to their design defect claims and there
was no evidence Loren was a sophisticated user of asbestos.
The trial court ruled that each defendant satisfied its initial burden on summary
judgment by showing (via Loren’s factually insufficient discovery responses) that the
plaintiff does not possess and cannot obtain evidence establishing an element of the
causes of action, i.e., exposure to the defendant’s asbestos-containing product. The trial
court further determined that the plaintiff did not satisfy the burden of showing the
existence of a triable factual issue with regard to exposure. Accordingly, the trial court
granted summary judgment in favor of CalPortland, Kaiser Gypsum, J-MM and Formosa.
4
STANDARD OF REVIEW
Summary judgment and summary adjudication provide courts with a mechanism
to cut through the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute. (Code Civ. Proc., § 437c,
subd. (f)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843 (Aguilar).) A
defendant moving for summary judgment or summary adjudication may demonstrate that
the plaintiff’s cause of action has no merit by showing that (1) one or more elements of
the cause of action cannot be established, or (2) there is a complete defense to that cause
of action. (Code Civ. Proc., § 437c, subds. (f)(2), (p)(2); Aguilar, supra, 25 Cal.4th at
p. 849.) This showing must be supported by evidence, such as affidavits, declarations,
admissions, interrogatory answers, depositions, and matters of which judicial notice may
be taken. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850,
855.)
A defendant moving for summary judgment or summary adjudication need not
conclusively negate an element of the plaintiff’s cause of action. (Code Civ. Proc.,
§ 437c, subd. (f)(2); Aguilar, supra, 25 Cal.4th at p. 853.) Instead, the defendant may
show through factually devoid discovery responses that the plaintiff does not possess and
cannot reasonably obtain needed evidence. (Aguilar, supra, 25 Cal.4th at pp. 854-855;
Andrews v. Foster Wheeler LLC (2006) 138 Cal. App. 4th 96, 101.)
After the defendant meets its threshold burden, the burden shifts to the plaintiff to
present evidence showing that a triable issue of one or more material facts exists as to
that cause of action or affirmative defense. (Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff may not simply rely on the allegations
of its pleadings but, instead, must set forth the specific facts showing the existence of a
triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of
material fact exists if, and only if, the evidence reasonably permits the trier of fact to find
5
the contested fact in favor of the plaintiff in accordance with the applicable standard of
proof. (Aguilar, supra, 25 Cal.4th at p. 850.)
In ruling on the motion, the trial court views the evidence and inferences
therefrom in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th
at p. 843; Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 768 (Saelzler).) If the
trial court concludes the evidence or inferences raise a triable issue of material fact, it
must deny the defendant’s motion. (Aguilar, supra, 25 Cal.4th at p. 843; Saelzler, supra,
25 Cal.4th at p. 768.) But the trial court must grant the defendant’s motion if the papers
show there is no triable issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
We review an order granting summary judgment or summary adjudication de
novo. (Aguilar, supra, 25 Cal.4th at p. 860.) We independently examine the record to
determine whether a triable issue of material fact exists. (Saelzler, supra, 25 Cal.4th at
p. 767.) The trial court’s stated reasons for granting summary judgment or summary
adjudication are not binding on us because we review its ruling, not its rationale.
(Carnes v. Superior Court (2005) 126 Cal. App. 4th 688, 694 [“The sole question properly
before us on review of the summary judgment is whether the judge reached the right
result . . . whatever path he might have taken to get there”].)
DISCUSSION
I
Plaintiff contends CalPortland did not satisfy its threshold burden on summary
judgment. Plaintiff claims CalPortland failed to show that plaintiff does not have and
could not reasonably obtain evidence of exposure to an asbestos-containing CalPortland
product.
A plaintiff claiming asbestos-related injuries must establish some exposure to the
asbestos-containing product or activity for which the defendant is responsible.
(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 982 (Rutherford).) If there has
6
been no exposure, the plaintiff cannot demonstrate that the defendant caused his or her
injuries. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal. App. 4th 1078, 1084.)
Evidence that the defendant propounded sufficiently comprehensive discovery
requests and that the plaintiff provided factually insufficient responses can raise an
inference that the plaintiff cannot prove causation. (Casey v. Perini Corp. (2012)
206 Cal. App. 4th 1222, 1231 (Casey).) In Casey, the plaintiff accused the defendant, a
general contractor, of exposing him to asbestos at jobsites where the plaintiff worked for
a subcontractor. (Id. at p. 1225.) The plaintiff said he was the only person with
knowledge of the amount and extent of the alleged asbestos exposure. (Id. at p. 1231.)
In response to a special interrogatory asking him to state each fact supporting his claim
against the defendant, the plaintiff said he worked alongside carpenters and laborers
employed by the defendant; in performing their work, the carpenters disturbed the
asbestos-containing overspray on the ceiling and caused it to fall on everyone in the area;
the defendant’s laborers swept the asbestos-containing dust and debris in the plaintiff’s
presence; and the plaintiff breathed in this dust. (Id. at pp. 1229-1230.) When asked
about the alleged asbestos materials to which he was exposed, the plaintiff admitted he
only assumed that the dust and debris he encountered contained asbestos. (Id. at
pp. 1229, 1234.)
The appellate court said the plaintiff’s discovery responses failed to state specific
facts showing that the plaintiff was actually exposed to asbestos because of the
defendant’s activities. (Casey, supra, 206 Cal.App.4th at p. 1230.) Instead, the
plaintiff’s responses assumed, without evidentiary support, that the dust and debris he
encountered contained asbestos. (Ibid.) The appellate court held that the defendant’s
sufficiently comprehensive discovery requests and the plaintiff’s responses devoid of
facts led to an inference that the plaintiff could not prove causation. (Id. at p. 1231.)
Thus, the burden shifted to the plaintiff to establish a triable issue of material fact
regarding exposure. (Ibid.)
7
Here, CalPortland presented evidence that it manufactured and sold only one
asbestos-containing cement product. That product was called Colton gun plastic cement.
At the same time that CalPortland manufactured Colton gun plastic cement, it also
manufactured a cement which did not contain any asbestos. That product was called
plastic cement. Plastic cement and Colton gun plastic cement were two different
products. All of these facts were undisputed.
CalPortland showed that plaintiff identified the product for which CalPortland is
liable as “CalPortland Plastic Cement.” Loren was the plaintiff’s sole product
identification witness with regard to CalPortland. Loren testified that he used
CalPortland plastic cement and recalled seeing that product at the jobsites where he
worked. Loren did not recall ever seeing the Colton gun plastic cement brand name. He
never saw a bag of cement used for exterior plastering that had the word “gun” on it. He
first heard of Colton gun plastic cement when he was deposed in this lawsuit in
May 2009. In addition, Loren could not say whether he had any information that he was
ever on a job where anybody used Colton gun plastic cement. He did not have any
documents or witnesses that could help him determine whether he ever encountered
Colton gun plastic cement on a job. Thus, this case is factually distinguishable from
Hernandez v. Amcord, Inc. (2013) 215 Cal. App. 4th 659 (Hernandez), where there was
evidence the decedent worked with the defendant’s asbestos-containing product many
times and dust from the defendant’s product got on his face and clothing when he worked
with it. (Id. at pp. 673-674.)
CalPortland’s summary judgment motion also relied on Loren’s responses to
special interrogatories from CalPortland. In response to a special interrogatory
requesting all facts supporting the contention that Loren was exposed to an asbestos-
containing product for which he contends CalPortland is responsible, Loren did not say
he was exposed to Colton gun plastic cement. Instead, he “allege[d]” he was exposed to
“CalPortland plastic cement products” on various jobsites throughout his work in
8
different construction trades during the span of over 30 years. Referencing his deposition
testimony, he said he personally used a CalPortland plastic cement product once and
worked near others who used CalPortland plastic cement products. The cited deposition
testimony related to CalPortland plastic cement and CalPortland cement. No reference
was made in that deposition testimony to Colton gun plastic cement or asbestos.
Unlike the limited discovery conducted by the defendant in Weber v. John Crane,
Inc. (2006) 143 Cal. App. 4th 1433, 1442 (Weber), a case plaintiff says is similar to this
one, CalPortland’s discovery questions to Loren are comprehensive and sought to elicit
information about the bases for CalPortland’s alleged liability to plaintiff for exposure to
asbestos. Loren’s responses to CalPortland’s questions do not provide facts showing
exposure to an asbestos product. Loren had a statutory duty to provide complete and
straightforward answers to CalPortland’s discovery questions. (Andrews v. Foster
Wheeler LLC, supra, 138 Cal.App.4th at pp. 106-107 [the plaintiffs cannot play “ ‘hide
the ball’ ”]; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal. App. 4th 64, 76.) But
unlike the plaintiff in Weber, Loren (plaintiff’s only product identification witness) did
not say he encountered CalPortland’s asbestos product and he admitted having no
documents and no knowledge of any person that could help him determine whether he
ever encountered a CalPortland asbestos product. (Weber, supra, 143 Cal.App.4th at
p. 1436.)
CalPortland’s discovery questions and Loren’s responses raise an inference that
plaintiff cannot prove the element of causation. (Casey, supra, 206 Cal.App.4th at
pp. 1229-1231.) CalPortland’s showing shifted the burden of production to plaintiff.
(Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at p. 107; McGonnell v. Kaiser
Gypsum Co. (2002) 98 Cal. App. 4th 1098, 1101, 1103-1104 (McGonnell); Hunter v.
Pacific Mechanical Corp. (1995) 37 Cal. App. 4th 1282, 1285, 1289 (Hunter),
disapproved on another ground in Aguilar, supra, 25 Cal.4th at p. 854, fn. 23; Smith v.
9
ACandS, Inc. (1994) 31 Cal. App. 4th 77, 88-89, disapproved on another ground in
Camargo v. Tjaarda Dairy (2001) 25 Cal. 4th 1235, 1245.)
Nonetheless, plaintiff argues CalPortland did not satisfy its threshold burden
because it did not set forth all the material evidence, particularly Loren’s description of
the CalPortland cement product he encountered. But the cases plaintiff cites -- Rio Linda
Unified School Dist. v. Superior Court (1997) 52 Cal. App. 4th 732 and Harbour Vista,
LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal. App. 4th 1496 -- do not hold that
the failure to set forth all material evidence necessarily defeats a threshold burden. We
cannot say that any omission by CalPortland was an attempt to mislead the trial court
about the state of the discovery record, as plaintiff suggests. In any event, as we explain,
Loren’s deposition testimony would preclude a reasonable trier of fact from finding
(without speculating) that Loren was exposed to Colton gun plastic cement.
In opposing CalPortland’s summary judgment motion, plaintiff produced evidence
that the cement to which Loren was exposed was similar in appearance, function,
application and packaging to Colton gun plastic cement. Loren said the cement product
he encountered was a gray powder that was mixed with sand and water and was packaged
in 94-pound, brown paper bags. The bags contained the words “California Portland,”
“Cal Portland,” “plastic” and/or “cement.” The product was applied by hand or gun to
the outside walls of a structure as an exterior plaster.
Like the product Loren described, Colton gun plastic cement was gray in color and
looked like dry cement. Colton gun plastic cement had to be mixed with sand and water
prior to use. It was sold in brown, 94-pound bags in the early 1970’s. In addition, it
could be applied with a gun or a trowel. It was primarily used to plaster the outside of
structures.
Plaintiff argues the similarities between the product described by Loren and
Colton gun plastic cement are sufficient to raise a triable issue as to whether Loren was
exposed to Colton gun plastic cement. But on the evidence presented, guesswork is
10
required for the trier of fact to conclude that the product Loren encountered was Colton
gun plastic cement. Loren admitted he never heard of Colton gun plastic cement.
Whereas Colton gun plastic cement was packaged in bags which were labeled “Colton
Gun Plastic Cement,” Loren never saw the word “gun” on a bag of cement. Confronted
with a “[s]tate all facts” interrogatory, Loren did not state facts showing that the plastic
cement which he encountered contained asbestos. Plaintiff does not claim that further
discovery may produce evidence of exposure to Colton gun plastic cement, as opposed to
the asbestos-free plastic cement. (Code Civ. Proc., § 437c, subd. (h) [authorizing
continuance to permit party opposing summary judgment to obtain affidavits or conduct
discovery in order to present evidence].) The allegations of exposure contained in
Loren’s special interrogatory response do not raise a triable issue of fact. (Code Civ.
Proc., § 437c, subd. (p)(2).)
Although a party may rely on reasonable inferences drawn from direct and
circumstantial evidence to satisfy its burden on summary judgment, we do not draw
inferences from thin air. (Leslie G. v. Perry & Associates (1996) 43 Cal. App. 4th 472,
483 (Leslie G.); McGonnell, supra, 98 Cal.App.4th at p. 1106 [speculation about
exposure to defendant’s asbestos product is insufficient].) Likewise, a mere possibility
that Loren was exposed to Colton gun plastic cement is not enough to create a triable
issue of fact. (Saelzler, supra, 25 Cal.4th at pp. 775-776, 781; Casey, supra,
206 Cal.App.4th at p. 1237.) The evidence here could not reasonably permit a trier of
fact to conclude that the product to which Loren was exposed was more likely than not
Colton gun plastic cement. (Leslie G., supra, 43 Cal.App.4th at pp. 483, 488 [to resist
summary judgment, the plaintiff must show that the inferences favorable to her were
more reasonable or probable than those against her; the plaintiff cannot survive summary
judgment simply because it was possible that her rapist might have entered through an
allegedly negligently maintained gate].) This case does not involve equally conflicting
evidence or inferences.
11
Plaintiff claims there is no evidence that the product Loren described is consistent
with the asbestos-free CalPortland plastic cement. Not so. There was evidence that all
Colton cement products, which included the non asbestos-containing plastic cement, were
packaged in brown bags, like the cement product Loren described. Loren said the cement
product he was exposed to was used for masonry and applied to outside walls as an
exterior plaster. Likewise, CalPortland’s plastic cement was used as stucco and for hand
plastering and masonry. The product Loren described could be applied by hand or a gun.
CalPortland sold a “hand plastic cement” that could be applied by a gun. That product,
like the product Loren described, is mixed with sand.
Even viewing all of the evidence submitted in the light most favorable to plaintiff,
we conclude that summary judgment for CalPortland is proper. (Casey, supra,
206 Cal.App.4th at pp. 1237-1239; McGonnell, supra, 98 Cal.App.4th at pp. 1104-1105
[no triable issue of material fact regarding exposure where there was no evidence that the
defendant’s product, which might have been used at the plaintiff’s workplace, contained
asbestos]; Garcia v. Joseph Vince Co. (1978) 84 Cal. App. 3d 868, 874-875 [nonsuit in
favor of the defendant was proper where the jury would be required to speculate as to
which entity manufactured the allegedly defective product]; Lindstrom v. A-C Product
Liability Trust (6th Cir. 2005) 424 F.3d 488, 497-498 [no triable issue of fact regarding
causation where the defendant manufactured asbestos-containing as well as nonasbestos-
containing products and the plaintiff’s witnesses could not tell whether any material the
plaintiff handled contained asbestos].)
II
Plaintiff also argues that Kaiser Gypsum did not satisfy its threshold burden on
summary judgment and, thus, the burden of production did not shift to plaintiff.
Plaintiff alleges that Loren was exposed to an asbestos-containing, premixed
Kaiser Gypsum joint compound during his career in the construction trades, which
spanned from 1954 to 1995. Kaiser Gypsum began manufacturing an asbestos-
12
containing, premixed joint compound called “Pre-Mix Joint Compound” in 1959.2 It
stopped manufacturing and selling any product that contained asbestos in early 1976.
And it ceased all manufacturing and sales operations in 1978. Plaintiff says it is
reasonable to infer that Loren could have encountered Kaiser Gypsum joint compound as
late as 1979 because there was likely some inventory of Kaiser Gypsum joint compound
in use after Kaiser Gypsum ceased operations. Plaintiff deduces that Loren’s potential
period of exposure to Kaiser Gypsum joint compound is approximately 21 years: 1959
through 1979. Plaintiff further deduces that Kaiser Gypsum joint compound contained
asbestos for 17 of the approximately 21-year potential exposure period. Thus, plaintiff
continues, there is a greater than 50 percent chance that the Kaiser Gypsum joint
compound Loren encountered contained asbestos. Plaintiff maintains the above facts
raise an inference of exposure under a preponderance of the evidence standard, regardless
of Loren’s inability to recall the exact dates when he saw premixed Kaiser Gypsum joint
compound at a jobsite.
We conclude Kaiser Gypsum met its initial burden of production by making a
prima facie showing that plaintiff does not have, and cannot obtain, evidence necessary to
show exposure to an asbestos-containing Kaiser Gypsum joint compound.
Kaiser Gypsum submitted Loren’s deposition testimony and interrogatory
responses and the declaration of George Kirk in support of its summary judgment motion.
Kaiser Gypsum’s evidence shows that it began selling an asbestos-free joint compound in
1974; by the end of 1975 it had removed asbestos from all but one joint compound
product that it manufactured and sold; and it stopped manufacturing and selling any
product that contained asbestos in early 1976. Loren testified that he saw premixed
2 Kaiser Gypsum manufactured a dry or powder form joint compound prior to 1959.
Loren recalled seeing a Kaiser Gypsum joint compound in the premixed form. He did
not recall seeing a Kaiser Gypsum joint compound in the dry form.
13
Kaiser Gypsum joint compound at jobsites “over the years.” He said there were
numerous times when he (a) worked around others who used or sanded Kaiser Gypsum
joint compound, (b) performed cleanup work after the product was used, and (c) breathed
in the dust created from such work. However, Loren had no idea whether any of the
Kaiser Gypsum joint compound that he encountered contained asbestos. Of significance,
Loren could not identify any particular year when he saw Kaiser Gypsum joint compound
on a jobsite.
Plaintiff does not dispute that Loren knew of no documents or witnesses which
would show whether he was exposed to asbestos from a Kaiser Gypsum product. Loren
also could not remember the name of any person who employed him or who worked with
him when he saw Kaiser Gypsum joint compound on a jobsite.
Further, Loren did not know the complete name of any Kaiser Gypsum joint
compound product that he encountered. Other than the word “Kaiser,” he could not
remember any logos, symbols or wording on any of the cartons of Kaiser Gypsum
products he saw. In response to a special interrogatory asking him to describe each
Kaiser Gypsum asbestos product to which he was exposed, Loren did not state that any
packaging of a Kaiser Gypsum product to which he was exposed referenced asbestos.
In response to a special interrogatory seeking all facts supporting the contention
that he was exposed to asbestos from a product bearing the name Kaiser Gypsum, Loren
“allege[d]” he was exposed to asbestos from Kaiser Gypsum joint compound products
during his years of working on various construction sites in and around Sacramento or
Northern California. Although he was required to provide a complete and
straightforward answer to Kaiser Gypsum’s interrogatory (Andrews v. Foster Wheeler
LLC, supra, 138 Cal.App.4th at pp. 106-107), Loren did not specify when he encountered
Kaiser Gypsum joint compound on a jobsite. The pages of his deposition testimony in
the record do not set forth facts showing that any Kaiser Gypsum product Loren
encountered contained asbestos. Loren admitted he had no idea whether any of the
14
Kaiser Gypsum joint compound that may have been at any of his jobsites contained
asbestos. Another interrogatory specifically asked Loren to identify the date and location
of each alleged exposure to an asbestos-containing Kaiser Gypsum product. Loren
responded to that interrogatory with mere allegations.
Viewed in the light most favorable to the plaintiff, the evidence Kaiser Gypsum
presented shows that the Kaiser Gypsum product Loren encountered was asbestos-free if
Loren encountered that product after early 1976. However, Loren could not pinpoint
when he encountered Kaiser Gypsum joint compound. Specifically, he did not say he
encountered Kaiser Gypsum joint compound during the first 22 years of his career in
construction, i.e., 1954 through 1976. Loren’s incomplete responses to comprehensive
discovery questions are sufficient to shift the burden on summary judgment on the issue
of causation. (Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at pp. 104-107;
Hunter, supra, 37 Cal.App.4th at pp. 1285, 1289-1290.) Lineaweaver v. Plant Insulation
Co. (1995) 31 Cal. App. 4th 1409 (Lineaweaver) is not a factually similar case because
there was no dispute in Lineaweaver that the defendant-supplied product contained
asbestos and it was reasonable to infer from the evidence presented that plaintiff
Lineweaver encountered the defendant’s asbestos product. (Lineaweaver, supra,
31 Cal.App.4th at p. 1419.) Hernandez, supra, 215 Cal. App. 4th 659, a case where there
was evidence of exposure to the defendant’s asbestos-containing product, is also factually
distinguishable. (Id. at pp. 673-674.)
Plaintiff must prove the fact, not the date, of exposure to establish causation. Even
under the most lenient causation standards, however, plaintiff must present evidence that
would allow a reasonable trier of fact to find more likely than not that Loren encountered
an asbestos-containing Kaiser Gypsum product. (Smith v. ACandS, Inc., supra,
31 Cal.App.4th at p. 89.) In opposing Kaiser Gypsum’s motion, plaintiff asserted that
Loren was exposed to Kaiser Gypsum joint compound numerous times from the mid-
1950’s to 1995. But the pertinent question is not whether Loren was exposed to Kaiser
15
Gypsum joint compound. The pertinent question is whether Loren encountered an
asbestos-containing Kaiser Gypsum joint compound. As to the latter question, plaintiff
did not set forth any fact showing that Loren encountered an asbestos-containing
premixed joint compound manufactured by Kaiser Gypsum.
Loren’s inability to say when he encountered Kaiser Gypsum joint compound is
significant because, as plaintiff acknowledges, the date of the encounter would tend to
indicate whether the product Loren saw contained asbestos. Plaintiff did not ask for a
continuance of the summary judgment motion or indicate in any way that it could obtain
needed evidence. Without any fact showing when Loren was exposed to Kaiser Gypsum
joint compound, the trier of fact could not reasonably infer that Loren was more likely
than not exposed to asbestos attributable to Kaiser Gypsum. (Aguilar, supra, 25 Cal.4th
at p. 843 [in ruling on a summary judgment motion, we consider inferences reasonably
drawn from the evidence].) On this record, there is no triable issue of fact as to exposure.
(Hunter, supra, 37 Cal.App.4th at pp. 1289-1290; Lindstrom v. A-C Product Liability
Trust, supra, 424 F.3d at pp. 497-498.)
Plaintiff nonetheless argues there is a reasonable probability, i.e., a greater than
50-50 chance, that Loren encountered an asbestos-containing joint compound because
Kaiser Gypsum manufactured or sold such product for 16 years (1959 to 1975) and its
asbestos-free joint compound was likely in use for only three years (1976 to 1979).
Plaintiff cites Simmons v. West Covina Medical Clinic (1989) 212 Cal. App. 3d 696
(Simmons), Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal. App. 3d 396 (Jones),
and Bromme v. Pavitt (1992) 5 Cal. App. 4th 1487 (Bromme) for the proposition that there
was a greater than 50 percent chance that Loren was exposed to a Kaiser Gypsum
asbestos product.3 Evidence pertaining to reasonable medical probability of causation, as
3 Plaintiff also cites Katie V. v. Superior Court (2005) 130 Cal. App. 4th 586, but only for
a definition of preponderance of the evidence.
16
opposed to exposure, was presented in the cited cases. But those cases are inapposite
because the kind of evidence presented in those cases was not presented here. In
Simmons, it was undisputed that a genetic test, which the plaintiffs claimed the
defendants neglected to provide, would detect Down’s Syndrome in only 20 percent of
pregnant at-risk women under the age of 35. (Simmons, supra, 212 Cal.App.3d at
pp. 700, 702-703.) In Jones, the plaintiff’s medical expert testified there was a less than
50-50 chance the defendant’s drug contributed to the development of the plaintiff’s
cancer. (Jones, supra, 163 Cal.App.3d at pp. 401-404.) In Bromme, the expert witnesses
agreed the decedent’s chance of surviving colon cancer was less than 50 percent after a
certain date. (Bromme, supra, 5 Cal.App.4th at p. 1499.) Similar evidence is not present
here.
Plaintiff also complains that Kaiser Gypsum did not disclose in its papers that it
manufactured and sold an asbestos-containing premixed joint compound from 1959
through 1975, that it ceased all manufacturing operations in 1978, and that its product
sales occurred between 1952 and 1978. Those facts, however, do not raise a triable issue
of material fact regarding causation. As we have explained, Kaiser Gypsum made a
prima facie showing that plaintiff does not have and cannot obtain evidence of exposure
to an asbestos-containing Kaiser Gypsum joint compound. And plaintiff failed to present
evidence showing that a triable issue of material fact existed as to whether Loren was
exposed to asbestos for which Kaiser Gypsum is responsible. Summary judgment for
Kaiser Gypsum was properly granted.
We do not separately address Verna’s loss of consortium claim because plaintiff
does not dispute that a decision in Kaiser Gypsum’s favor on Loren’s personal injury
claims requires summary judgment for Kaiser Gypsum. It is also unnecessary to consider
Kaiser Gypsum’s alternate argument about whether exposure to asbestos from Kaiser
Gypsum joint compound was a substantial factor in causing Loren’s illness.
17
III
Plaintiff next contends J-MM and Formosa did not satisfy their threshold burden
to show that plaintiff cannot prove exposure to an asbestos-containing J-MM product.
Plaintiff also asserts J-MM and Formosa failed to establish that J-MM did not have to
warn Loren of the dangers and risks associated with J-MM’s asbestos cement pipe
because Loren was a sophisticated user of asbestos.
We discuss the grant of summary judgment in favor of J-MM and Formosa in the
same section because J-MM and its alleged alter ego Formosa moved for summary
judgment or summary adjudication on the same grounds. Formosa did not move for
summary adjudication based on the lack of an alter ego relationship between Formosa
and J-MM.
A
We begin with plaintiff’s argument that J-MM and Formosa did not meet their
burden to show that plaintiff cannot prove causation.
J-MM and Formosa asserted in their summary judgment motions that Loren did
not testify about any encounters with asbestos cement pipe after 1979, and J-MM is
not liable for any claims relating to asbestos cement pipe prior to its formation in 1983.
J-MM and Formosa rely on Loren’s deposition testimony and interrogatory responses
and documents pertinent to J-MM’s acquisition of the assets of Johns-Manville Pipe
Corporation (Johns-Manville) to support their motions.
There is no dispute that J-MM was formed on January 1, 1983, after J-MM
purchased the assets of Johns-Manville. Plaintiff also does not dispute that J-MM is not
liable for any asbestos-containing product sold by Johns-Manville prior to the asset
purchase.
Loren testified that over the course of his career he saw cement pipes that said
“Johns Manville” and “J-M” “many times.” In response to a special interrogatory from
J-MM asking for the date and location of each alleged exposure to an asbestos-
18
containing product manufactured, sold or supplied by J-MM, Loren recounted his prior
deposition testimony that he worked in the vicinity of other workers who installed, cut
or “machined” Transite.4 Loren said he was exposed to the dust created when workers
cut Transite. He said Transite was the trade name for Johns-Manville asbestos cement
pipe, and he assumed Transite was also the trade name for J-MM asbestos cement pipe
because Transite was a name used for asbestos cement pipe. Loren recalled “John
Mansville (sic) and then later on there was a J-M on the products.” He saw the words
“J-M” and “Transite” on asbestos cement pipes. His special interrogatory response
described his prior testimony about seeing Transite at jobsites in the 1960’s and 1970’s.
Loren also testified that he saw workers use or install Transite up into the early 1980’s.
J-MM and Formosa contend Loren’s testimony about seeing other workers use or
install Transite up into the early 1980’s was vague and made in response to a leading
question. But J-MM and Formosa did not object to Loren’s special interrogatory answer
or his deposition testimony in this regard in their summary judgment papers or at the
hearing on their motions. As such, their evidentiary objections are forfeited. (Code Civ.
Proc., § 437c, subds. (b)(5) [“Evidentiary objections not made at the hearing shall be
deemed waived”], (c) [“the court shall consider all of the evidence set forth in the papers,
except that to which objections have been made and sustained by the court”]; Cal. Rules
of Court, rules 3.1352, 3.1354.)
J-MM and Formosa also contend it is unclear whether Loren referred to Transite
as a generic term for asbestos cement pipe, as opposed to an asbestos cement pipe
supplied by J-MM, when he testified about seeing Transite up into the early 1980’s. The
4 J-MM and Formosa ask us to disregard Loren’s deposition testimony because it
purports to “change” his written interrogatory responses. As plaintiff points out,
however, Loren’s deposition was taken before he answered J-MM’s special
interrogatories.
19
record on this point, however, is not unclear. Counsel asked Loren to focus on Transite
as a trade name, before asking Loren a series of questions, including whether he saw
other workers use or install Transite in the 1980’s.
In moving for summary judgment, J-MM argued that Loren’s discovery responses
indicated he was last exposed to asbestos cement pipe allegedly sold by J-MM in 1979.
J-MM and Formosa suggest that pages 1615 and 1616 of Loren’s deposition testimony
support their contention. Those pages are not in the record. We do not consider evidence
that is not in the record in reviewing a motion for summary judgment. (West v. Sundown
Little League of Stockton, Inc. (2002) 96 Cal. App. 4th 351, 363.)
J-MM and Formosa maintain on appeal that Loren could not recall a single
jobsite where he worked with or around asbestos cement pipe after 1979. But the
evidence J-MM presented indicates that Loren observed other workers use or install
Transite up into the early 1980’s and that Loren associated Transite with J-MM. Loren
recalled seeing “a J-M on the products.” There is no evidence that during his
deposition, Loren was asked to provide further information about product encounters
that occurred in the 1980’s and was unable to do so.
J-MM and Formosa argue that the Transite Loren encountered could have been
sold or supplied by Johns-Manville or any number of suppliers who supplied similar pipe
to jobsites. But there is no evidence that both J-MM and Johns-Manville sold or supplied
Transite during the same time period or that there were multiple suppliers of Transite in
the early 1980’s. As the parties moving for summary judgment, J-MM and Formosa bore
the initial burden of showing that plaintiff did not possess and could not reasonably
obtain needed evidence. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra,
25 Cal.4th at pp. 850, 854-855.) J-MM and Formosa did not meet that burden.
Moreover, plaintiff presented evidence that J-MM began selling asbestos cement
pipe in 1983. The pipes sold by J-MM contained asbestos and were the same product
manufactured and sold by Johns-Manville prior to January 1, 1983, under the trade name
20
Transite. Jim Reichert testified that as of January 1, 1983, J-MM sold the same Transite
asbestos cement pipe that Johns Manville sold prior to January 1, 1983. A trier of fact
could reasonably infer from a document used as an exhibit at the deposition of Jim
Reichert that J-MM was also known as “J-M,” which was a name Loren said he saw on
asbestos cement pipes.5
J-MM and Formosa liken this case to Hunter, supra, 37 Cal. App. 4th 1282 and
Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal. App. 4th 650 (Dumin). There is
no fair comparison. The plaintiff in Hunter testified he was personally unaware of the
defendant’s activities at any of the jobsites where he worked. (Hunter, supra, 37
Cal.App.4th at p. 1289.) Similarly, the plaintiff in Dumin could not identify Kaylo, the
product for which the defendant was a nonexclusive distributor, as one of the products to
which he was exposed. (Dumin, supra, 28 Cal.App.4th at p. 653.) He presented
evidence that Kaylo was customarily used at the shipyard where he worked as one of
many asbestos insulation products around the early 1950’s. (Id. at p. 655.) But there was
no evidence that Kaylo supplied by the defendant was used aboard the ship where he
worked in 1953 and 1954. (Ibid.)
Unlike the plaintiffs in Hunter and Dumin, Loren identified J-MM and he
identified Transite as a product he worked around up into the early 1980’s. J-MM sold
Transite in the early 1980’s. Unlike Dumin, where there were multiple suppliers for
Kaylo, there is no evidence in this case of multiple suppliers for Transite in the early
1980’s.
5 J-MM and Formosa ask us to not consider this document, asserting hearsay,
authentication and relevance grounds. The objections are forfeited because J-MM and
Formosa did not raise their evidentiary objections in their summary judgment papers or at
the hearing before the trial court. (Code Civ. Proc., § 437c, subds. (b)(5), (c); Cal. Rules
of Court, rules 3.1352, 3.1354.)
21
J-MM and Formosa further state, in a cursory manner, that plaintiff must prove
“substantial exposure” to J-MM’s asbestos-containing product. A plaintiff claiming
asbestos-related injuries must prove that exposure to the defendant’s asbestos product or
activity was, in reasonable medical probability, a substantial factor in causing or
contributing to the plaintiff’s injury. (Rutherford, supra, 16 Cal.4th at p. 982.) To the
extent J-MM and Formosa are raising the issue of whether exposure to J-MM’s product
was a substantial factor in causing plaintiff’s injuries, the contention is forfeited because
J-MM and Formosa do not present this point under an appropriate heading and they do
not support their contention with factual analysis. (Keyes v. Bowen (2010)
189 Cal. App. 4th 647, 655-656.)
Viewed in the light most favorable to plaintiff, all of the evidence presented
demonstrates a triable issue of fact about whether Loren was exposed to asbestos from
Transite after J-MM began marketing and selling that product in the early 1980’s.
Therefore, J-MM and Formosa are not entitled to summary judgment on the issue of
exposure.
B
J-MM and Formosa also moved for summary judgment or, in the alternative,
summary adjudication on the ground that J-MM had no duty to warn Loren of the
dangers associated with using J-MM’s product because he was a sophisticated user of
asbestos cement pipe. Plaintiff opposed the motion on that ground. The trial court did
not rely on the sophisticated user defense in granting summary judgment to J-MM and
Formosa. However, J-MM and Formosa rely on the sophisticated user defense on appeal.
In addition, J-MM and Formosa contend Loren could not have relied on any
representations made by J-MM concerning the character of its product because he had
actual knowledge about the potential hazards of asbestos. We may consider J-MM and
Formosa’s contentions because we review the trial court’s judgment if it is correct on any
legal theory that was presented to the trial court. (WRI Opportunity Loans II, LLC v.
22
Cooper (2007) 154 Cal. App. 4th 525, 541, fn. 12; Gordon v. Havasu Palms, Inc. (2001)
93 Cal. App. 4th 244, 255.)
J-MM and Formosa say they are entitled to summary adjudication on plaintiff’s
failure to warn causes of action because Loren was an experienced professional in the
construction trades and he was well aware of the hazards associated with asbestos,
obviating a duty on J-MM’s part to warn Loren of such hazards.
In general, a manufacturer or supplier has a duty to warn consumers about the
dangers and risks inherent in the use of its product. (Johnson v. American Standard, Inc.
(2008) 43 Cal. 4th 56, 64 [manufacturer]; Stevens v. Parke, Davis & Co. (1973) 9 Cal. 3d
51, 64-65 [supplier]; Rest.2d Torts, §§ 388 [supplier], 401 [seller]; CACI Nos. 1205
[strict liability against manufacturer, distributor and seller], 1222 [negligence by
manufacturer and supplier].) A failure to warn gives rise to liability for injuries caused
thereby. (Johnson v. American Standard, Inc., supra, 43 Cal.4th at p. 64; CACI
No. 1222.) The sophisticated user defense is an exception to the general duty to warn.
(Johnson v. American Standard, Inc., supra, 43 Cal.4th at p. 65.) The defense concerns
warnings and does not apply to a cause of action for design defect. (Johnson v.
Honeywell Internat. Inc. (2009) 179 Cal. App. 4th 549, 559.) The sophisticated user
defense would apply only to plaintiffs’ failure to warn causes of action in the first
through fourth counts. (Johnson v. American Standard, Inc., supra, 43 Cal.4th at pp. 65,
71, 74 [sophisticated user defense applies to strict liability and negligent failure to warn
claims]; Chavez v. Glock, Inc. (2012) 207 Cal. App. 4th 1283, 1313; Johnson v. Honeywell
Internat. Inc., supra, 179 Cal.App.4th at p. 559.)
Under the sophisticated user defense, a manufacturer is not liable to a
sophisticated user of its product for failure to warn about the product’s dangers if the
sophisticated user knew or should have known of the dangers. (Johnson v. American
Standard, Inc., supra, 43 Cal.4th at pp. 65, 71.) The “should have known” portion of the
formulation is an objective standard. (Id. at p. 71.) It examines what is generally known
23
or should have been known to the class of sophisticated users at the time of the plaintiff's
injury. (Id. at pp. 65-66, 71, 74.) It does not inquire into the user’s subjective
knowledge. (Id. at pp. 65-66, 71.) “The focus of the defense . . . is whether the danger in
question was so generally known within the trade or profession that a manufacturer
should not have been expected to provide a warning specific to the group to which
plaintiff belonged.” (Id. at p. 72.) The rationale supporting the defense is that the failure
to warn about risks already known to a sophisticated user usually is not a proximate cause
of the user’s injuries. (Id. at p. 65.)
Plaintiff relies on Johnson v. American Standard, Inc., supra, 43 Cal. 4th 56 and
Fierro v. International Harvester Co. (1982) 127 Cal. App. 3d 862 (Fierro). In Johnson v.
American Standard, Inc., supra, 43 Cal. 4th 56, 61-62, a trained and certified heating,
ventilation, and air conditioning (HVAC) technician sued various chemical
manufacturers, along with suppliers and manufacturers of air conditioning equipment, for
injuries allegedly caused by exposure to phosgene gas, a byproduct of welding air
conditioner pipes containing a refrigerant called R-22. The plaintiff alleged that the
defendants failed to provide adequate warnings that servicing air conditioning
evaporators would expose technicians to the harmful effects of phosgene gas. (Id. at
p. 62.) The Supreme Court held that the defendants did not have a duty to warn the
plaintiff because the danger created by exposing R-22 to high heat was well known
within the community of HVAC technicians to which the plaintiff belonged, and the
plaintiff could reasonably be expected to know of such hazard. (Id. at p. 74.)
The plaintiff in Johnson v. American Standard, Inc. completed a year-long course
on HVAC systems. (Johnson v. American Standard, Inc., supra, 43 Cal.4th at p. 61.) He
received additional training and certifications, including the highest certification an
HVAC technician can receive from the Environmental Protection Agency, after he passed
a five-part exam. He was certified to perform welding on large commercial air
conditioning systems which commonly used R-22 as a refrigerant. The dangers and risks
24
associated with R–22 were noted on material safety data sheets (MSDS), which the
plaintiff received, and sometimes read, every time he purchased R-22. (Id. at pp. 61-62.)
The defendant’s expert said it was widely known among HVAC technicians that
phosgene gas was a toxic byproduct of heating R–22. (Id. at p. 74.) The plaintiff’s
expert likewise said that HVAC technicians knew or should have known of the risk of
phosgene gas at the time the defendant manufactured the product in 1965. (Ibid.)
The plaintiffs in Fierro alleged that the defendant was liable for negligence and
design defect in connection with a “skeleton vehicle” sold to their decedent’s employer.
(Fierro, supra, 127 Cal.App.3d at p. 865.) A “skeleton vehicle” was a vehicle consisting
of only an engine, cab and chassis. Such a vehicle was sold to commercial users who
modified it to fit their particular needs. The decedent’s employer installed a refrigeration
unit to its skeleton vehicle to create a refrigerated truck for handling meat products.
(Ibid.) It attached a power cable to the refrigeration unit, creating a fire hazard. (Id. at
p. 866.) The defendant was not involved in the modification of the vehicle. (Id. at
p. 865.) The decedent perished in a fire when the modified skeleton vehicle he was
driving hit a guard rail and flipped, and gasoline spilled from the damaged fuel tanks.
(Ibid.) The appellate court rejected the claim that the trial court committed instructional
error by refusing to give an instruction on the issue of failure to warn. (Id. at p. 867.) It
concluded the plaintiffs were not entitled to the instruction because they did not plead,
and offered no evidence on, the failure to warn issue. (Id. at pp. 866-867.)
In dicta, the Fierro court said that as a “sophisticated organization,” the decedent’s
employer did not have to be told that gasoline was volatile and it was necessary to cover
and protect exposed fuel tanks because sparks from an electrical connection can cause a
fire. (Fierro, supra, 127 Cal.App.3d at p. 866.) The appellate court did not state what
facts made the decedent’s employer a sophisticated organization. The appellate court
noted there was no evidence that any feature of the skeleton vehicle was unique or
contained any component or capability which was known to the defendant and which was
25
not known to or readily observable by the decedent’s employer. In those circumstances,
the appellate court concluded the absence of a warning to the decedent’s employer did
not increase any danger that may have existed in using the defendant’s product. (Ibid.)
Here, J-MM and Formosa presented evidence that Loren worked in the
construction trades beginning in 1954, and owned two construction businesses. Loren
completed an apprenticeship in carpentry in 1963. He obtained a contractor’s license
from the California Contractors’ State License Board in 1976. Loren received
information from the contractors’ board beginning in 1976 that working with or around
asbestos-containing materials could be hazardous to one’s health. During the 1976 to
1980 period, Loren saw notices specific to asbestos posted at jobsites.
The duty to warn applies to a defendant’s product so that the consumer can refrain
from using that particular product or protect against any hazards. (Johnson v. American
Standard, Inc., supra, 43 Cal.4th at p. 64.) The sophisticated user defense exempts the
defendant from its obligation to provide users with warnings about the potential hazards
of its product. (Id. at p. 65.) Here, there is no evidence that Loren had specialized
knowledge or training with regard to J-MM’s product, Transite. Unlike the certified
HVAC technician in Johnson v. American Standard, Inc., supra, 43 Cal. 4th 56, 61, there
is no evidence that Loren ever received training or ever read an MSDS concerning
Transite. There is also no expert testimony that Loren should have known of the risks or
dangers associated with Transite because of his training or work experience. Loren did
not recall ever seeing any warnings about the dangers of asbestos on any Transite. He
said in response to a special interrogatory asking when he first became aware that
defendants’ products contained asbestos that he was unaware of the dangers of asbestos
associated with defendants’ products. We cannot say from the evidence presented that
the dangers of working with Transite were obvious at the time. (Contrast Fierro, supra,
127 Cal.App.3d at p. 866.)
26
J-MM and Formosa fail to persuade us that they are entitled to summary
adjudication as a matter of law based on the sophisticated user defense or because the
lack of warnings was not a legal cause for Loren’s injuries. J-MM and Formosa’s motion
for summary adjudication as to the sixth cause of action for loss of consortium does not
require additional discussion because it is premised on the claims that plaintiff cannot
establish the essential elements of duty and causation. We will reverse the summary
judgment in favor of J-MM and Formosa for the reasons we have stated.
DISPOSITION
The judgments in favor of CalPortland and Kaiser Gypsum are affirmed.
CalPortland and Kaiser Gypsum shall recover their costs on appeal. (Cal. Rules of
Court, rule 8.278(a).) The judgments in favor of J-MM and Formosa and against
plaintiff are reversed. Plaintiff shall recover the costs on appeal associated with the
judgments for J-MM and Formosa only. (Cal. Rules of Court, rule 8.278(a).)
MAURO , J.
We concur:
ROBIE , Acting P. J.
HOCH , J.
27
Filed 7/30/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
VERNA LEE COLLIN, C063875
Plaintiff and Appellant, (Super. Ct. No.
34200900045133CUASGDS)
v.
CALPORTLAND COMPANY et al.,
Defendants and Respondents.
VERNA LEE COLLIN, C065180
Plaintiff and Appellant, (Super. Ct. No.
34200900045133CUASGDS)
v.
J-M MANUFACTURING COMPANY, INC., ORDER OF PUBLICATION
Defendant and Respondent.
APPEAL from a summary judgment of the Superior Court of Sacramento,
Shelleyanne W. L. Chang, Judge. Affirmed and Reversed.
Waters, Kraus & Paul, Paul B. Cook and Michael B. Gurien for Plaintiff and
Appellant.
1
Berkes Crane Robinson & Seal, Robert H. Berkes, Steven M. Crane and
Barbara S. Hodous for Defendant and Respondent CalPortland Company.
Horvitz & Levy, Lisa Perrochet, Dean A. Bochner, DeHay & Elliston and Jennifer
Judin for Defendant and Respondent Kaiser Gypsum Company, Inc.
Walsworth Franklin Bevins & McCall, Helen M. Luetto and Ingrid K. Campagne
for Defendants and Respondents J-M Manufacturing Company, Inc. and Formosa Plastics
Corporation USA.
THE COURT:
The opinion in the above entitled matter filed July 1, 2014, was not certified for
publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
ROBIE , Acting P. J.
MAURO , J.
HOCH , J.
2