SPENCER v. SUPRO CORPORATION

No. B230680.

RICHARD SPENCER et al., Plaintiffs and Appellants, v. SUPRO CORPORATION, Defendant and Respondent.

Court of Appeals of California, Second District, Division Eight.

Filed January 6, 2012.


Attorney(s) appearing for the Case

Keller, Fishback & Jackson and Stephen M. Fishback , for Plaintiffs and Appellants Richard Spencer and Evelyn Spencer.

Brydon Hugo & Parker, James C. Parker , Thomas J. Moses and Erin M. Carpenter for Defendant and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

Richard and Evelyn Spencer appeal from the summary judgment dismissing their complaint against Supro Corporation alleging personal injuries from Richard Spencer's alleged on-the-job exposure to asbestos at a construction site during four months between 1959 and 1961. We affirm.

FACTS AND PROCEEDINGS

In 2009, appellant Richard Spencer, and his wife, appellant Evelyn Spencer, whom Richard married in 2000, filed a complaint alleging Richard Spencer developed asbestosis from his exposure to numerous products containing asbestos during his decades-long working life. (For clarity, when we refer to "Spencer" we mean only appellant Richard Spencer; when we mean both Richard and Evelyn Spencer, we will refer to them as "appellants.") The complaint named about three dozen defendants who manufactured or supplied asbestos products, including respondent Supro Corporation (Supro). The complaint did not, however, single out Supro with any individualized allegations.

Supro deposed Spencer. Supro also served written discovery demands on Spencer, but the trial court found Spencer's responses were factually devoid — a finding we discuss in greater detail in the Discussion section of this opinion, post. In his deposition, Spencer testified that he recalled only one job working around a Supro product; its drywall mud. He explained that he had painted the outside trim of houses for about three or four months at a housing development under construction in La Mirada sometime between 1959 and 1961. As he painted each home's trim, he trailed by one or two houses drywallers who were applying, and then sanding when dry, Supro's drywall mud inside houses, which Spencer would usually paint the next day after a texture coat had been laid on top of the dried and sanded mud.1 Spencer did not know the drywallers' names or employers. The only co-worker he remembered from the La Mirada project was a Joe White who was in his 60's at the time and, Spencer testified, is certainly dead by now. Spencer himself never used Supro's drywall mud or any other Supro product.

Supro moved for summary adjudication or judgment. Noting that Spencer admitted to seeing a Supro product only at one job site some 50 years ago, and never personally used any Supro product, Supro asserted Spencer lacked evidence that a Supro product had exposed him to asbestos. Appellants opposed summary judgment or adjudication. They argued that their written discovery responses gave Supro sufficient leads to witnesses and documents to obligate Supro to exhaust those leads before it could rightfully assert appellants lacked evidence to support their claims.

The court granted Supro's motion for summary judgment. The trial court found Supro had demonstrated that appellants lacked sufficient evidence to permit a rational jury to find Supro's products had caused Spencer's asbestosis. The court additionally found that the absence of evidence supporting appellants' claim was not from Supro's lack of trying to ferret out such evidence through discovery. This appeal followed.

DISCUSSION

When a defendant moves for summary judgment, the defendant must persuade the trial court that no triable issue of material fact exists involving an essential element of the plaintiff's claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant can meet that burden of persuasion by showing through discovery that the plaintiff does not possess, and cannot reasonably obtain, evidence necessary to prove the plaintiff's claim. (Aguilar at pp. 853-854; see also Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 586-587, fn. 8.) Demonstrating that a plaintiff does not have, and cannot get, essential evidence presupposes that the defendant explored the plaintiff's case through discovery aimed at uncovering all the evidence that supports the plaintiff's case. (See Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2000) 79 Cal.App.4th 114, 134 ["to grant summary judgment, the court must be able to infer from the record that the plaintiff could produce no other evidence on the disputed point"]; Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 80-81 [court may not infer plaintiff lacks evidence on a point defendant does not pursue in discovery].) The obligation to explore the plaintiff's claim means a defendant cannot achieve summary judgment by relying on the plaintiff's inability to recall evidence if other sources, such as third party witnesses, are available who might provide evidence supporting the plaintiff's case. (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1436.)

Here, appellants must show sufficient evidence exists to permit a trier of fact to find that Spencer's exposure to asbestos from a Supro product caused Spencer's injuries. "A threshold issue in asbestos litigation is exposure to the defendant's product. The plaintiff bears the burden of proof on this issue. [Citations.] If there has been no exposure, there is no causation. [Citation.] Plaintiffs may prove causation in an asbestos case by demonstrating that the plaintiff's . . . exposure to the defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff . . . inhaled or ingested, and hence to the risk of developing asbestos-related" illness. (McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1103 (McGonnell); see also Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982.) The mere possibility of exposure to asbestos "does not create a triable issue of fact. [Citation.] It is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment." (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 108.) Exposure that was no more than within the "realm of possibility" is too speculative to defeat summary judgment. (McGonnell at pp. 1105-1106.)

Supro's motion for summary judgment established that appellants cannot meet their burden of proof at trial that Supro's asbestos products injured Spencer. Spencer recalled drywallers using Supro's drywall mud a half-century ago inside homes on which he would paint the outside trim no sooner than one day after the texture-covered mud had been dried and sanded. He testified he did not work with the drywall mud himself. Such evidence is too tissue-thin to permit a jury to find Supro's drywall mud caused Spencer's asbestosis. (McGonnell, supra, 98 Cal.App.4th at pp. 1105-1106 [asbestos exposure that is only within the "realm of possibility" insufficient to defeat summary judgment].) Accordingly, summary judgment was proper.

Appellants contend that Weber v. John Crane, Inc., supra, 143 Cal.App.4th 1433 ought to govern the outcome here. In that decision, a plaintiff's lack of recall about events from decades ago did not shift the burden of persuasion to the plaintiff when other sources of information existed that might create a triable issue of fact. (See Weber at p. 1439 ["That [the plaintiff] was unable to recall whether he worked around [defendant's] product over 40 years ago suggests only that plaintiffs will not be able to prove their case with [his] deposition testimony."].) Relying on Weber, appellants contend their answers to Supro's special interrogatories opened up lines of inquiry to possible evidence of Spencer's exposure to Supro's asbestos-containing products that Supro failed to pursue, thus barring summary judgment for Supro. We disagree.

Supro's interrogatories asked appellants to identify every fact supporting their assertion that Spencer was exposed to Supro products containing asbestos. Supro also asked appellants to identify witnesses who could support appellants' claims. Appellants named three witnesses other than themselves as supporting their claims, and provided a 10-page, single-spaced response identifying facts supporting their claim. The only non-boilerplate part of their response was the following passage: "Richard Spencer . . . was a painter, truck driver, and mechanic who performed his work at various jobsites during the years 1960 to 1980. Throughout his career, [Spencer], and others in his direct vicinity, performed significant maintenance, repair, installation and insulation work. [Spencer] contends that he and others in his direct vicinity, cut, mixed, scraped, sanded, applied, removed, installed and performed labor/clean-up, including sweeping, brushing, moving, and other normal installation activities using asbestos containing products sold, supplied, marketed, and distributed by Supro Corporation . . . exposing [Spencer] to asbestos. [Spencer] was directly exposed to asbestos from defendant's asbestos containing products, which became airborne and respirable during said work. . . . [Spencer] recalls working with and around others that applied Supro's All Purpose Joint Compound, Topping Compound, Multi-Tex Wall Texture and Styro-Tex Ceiling Texture at several of his employers, including but not limited to Ralph Sutton (1950-1960's), Ernest Collins (1950-1960's), Harold Davidson (1955-1960's), Freeman & Sacks (1960's), James Silva and Sons (1955-1960's)."

The foregoing interrogatory response, constituting the sum of appellants' evidence against Supro, is insufficient as matter of law to permit a trier of fact to find Supro caused Spencer's asbestosis. First, it contradicts Spencer's deposition testimony that the La Mirada housing development was the only job where he saw anyone using a Supro product. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 [party opposing summary judgment cannot rely on its own contradictory discovery responses to create a triable issue].) Second, he cannot with vague dates, times, and places from several decades ago overcome his deposition testimony that he had no knowledge of ever working around others who were using the compounds he identifies in his interrogatory response — All Purpose Joint Compound, Topping Compound, Multi-Tex Wall Texture, and Styro-Tex Ceiling Texture — when he testified in his deposition that he had never worked around others who were using those products. (Ibid.) Here, Spencer was in the best position to know the details of his alleged exposure. His deposition testimony that he did not know of having ever worked near anyone using any Supro product other than drywall mud is telling. (McGonnell, supra, 98 Cal.App.4th at p. 1104 [plaintiff "was one of the best persons, if not the best person, to identify the various products and substances to which he had been exposed during his employment. . . . His failure [in his deposition] to place [defendant's] products at his place of employment shifted the burden to [him] to produce some circumstantial evidence to establish exposure to [defendant's] products.") Summary judgment for Supro was thus proper on the ground that no triable issue of material fact existed involving asbestos exposure from a Supro product sufficient to have caused Spencer's asbestosis.2 (McGonnell, at p. 1103 [plaintiff must demonstrate "exposure to defendant's asbestos-containing product in reasonable medical probability was a substantial factor" in causing plaintiff's illness]; Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at p. 108 [mere possibility of exposure to asbestos "does not create a triable issue of fact"].)

DISPOSITION

The judgment is affirmed. Respondent to recover its costs on appeal.

FLIER, J. and GRIMES, J., concurs.

FootNotes


1. The court's order granting summary judgment stated Spencer trailed the drywallers by two houses, which is incorrect because Spencer testified he followed the drywallers by one or two houses.
2. Because we affirm summary judgment for Supro, appellants concede we need not address Supro's motion in the alternative for summary adjudication of appellant's intentional tort claims.

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