Filed 7/27/16 Gerlach v. Goodman Lumber Co. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
ANDREA GERLACH et al.,
Plaintiffs and Appellants,
A144642
v.
GOODMAN LUMBER COMPANY, (San Francisco City & County
Super. Ct. No. CGC-14-276241)
Defendant and Respondent.
Jerry Charlifue (Charlifue) and his wife, Christine Charlifue, filed this asbestos-
related personal injury action against Goodman Lumber Company (Goodman) after
Charlifue was diagnosed with mesothelioma. Plaintiffs1 now appeal the trial court’s
grant of summary judgment in favor of Goodman. Plaintiffs argue the trial court erred in
striking various evidence submitted in opposition to summary judgment. They also assert
they raised a triable issue of fact as to whether Goodman exposed Charlifue to an
asbestos-containing joint compound.2 We agree and reverse.
I. BACKGROUND
Charlifue worked as a taper and painter for U.S. Taping Company (U.S. Taping)
between 1972 and 1978. As a taper, Charlifue’s job was to smooth out walls and ceilings
1
Charlifue passed away during the pendency of this appeal and Andrea Gerlach,
his successor in interest, has been substituted as an appellant. We refer to Charlifue,
Christine Charlifue, and Gerlach, collectively, as plaintiffs.
2
Plaintiffs also appeal the trial court’s denial of their motion for a new trial. As
we find summary judgment was improperly granted, we need not and do not reach the
issue.
where drywall had been hung. In doing so, Charlifue would apply a joint compound to
the drywall and later sand the compound between coats. For the first three or four years,
Charlifue worked with a dry powdered joint compound that he mixed with water.
Pouring the powdered mixture released dust, which Charlifue would later clean up with a
broom. Plaintiffs assert these joint compounds contained asbestos, and that they were
purchased from Goodman. In or around 1976, Charlifue began working with premixed
joint compounds.
In 2014, after Charlifue was diagnosed with mesothelioma, plaintiffs filed this
personal injury action against Goodman. Goodman moved for summary judgment on
several grounds, including that plaintiffs’ discovery responses showed they could not
prove Charlifue was exposed to an asbestos-containing product supplied by Goodman.
According to Goodman, Charlifue admitted he could not identify any brand of joint
compound he purchased from Goodman between 1973 and 1976. Goodman also asserted
Charlifue did not see the word “asbestos” on any packaging, and he had no knowledge of
whether the joint compound products contained asbestos.
In opposing summary judgment, plaintiffs submitted Charlifue’s deposition
testimony, in which he recalled purchasing various brands of joint compound from
Goodman, including those manufactured by Kaiser Gypsum Company (Kaiser Gypsum)
and United States Gypsum Company (US Gypsum or USG). Charlifue remembered first
going to Goodman during his first year working at US Taping, and he often went more
than once a week. While there, he would usually pick up at least 20 bags of joint
compound, which were 25 to 35 pounds each. As Goodman points out, Charlifue’s
testimony was sometimes vague as to time. For example, at one point, Charlifue stated
he did not have a specific recollection of going to Goodman in 1972, but he was “sure”
he did. At another point, Charlifue stated: “As the years went by, which is about maybe
two or three years down the road, . . . then I started remembering that, yes, it was USG
and Kaiser Gypsum that we started using.” Charlifue also admitted to purchasing joint
compound from other retailers, but asserted “most of our materials came out of
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Goodman’s Lumber because it was on the way home and so was Kelly-Moore [and]
Sherwin-Williams.”
In an attempt to establish the products in question contained asbestos, plaintiffs
proffered the deposition testimony of George Kirk and Howard Bowman, the corporate
representatives for Kaiser Gypsum and US Gypsum, respectively, as well as a declaration
by William Ewing, an industrial hygienist. Kirk stated Kaiser Gypsum began its asbestos
replacement program in about 1973 and did not phase asbestos out of all of its products
until 1976. Bowman testified US Gypsum did not cease manufacturing asbestos-
containing joint compounds until 1976. Ewing opined it was “more likely than not any
joint compound materials that were supplied by Goodman . . . to U.S. Taping before 1976
were asbestos-containing.”
Plaintiffs also requested the trial court take judicial notice of a patent for an
asbestos-free joint compound issued to US Gypsum in 1975. US Gypsum applied for the
patent in 1973. Plaintiffs now assert the “patent indicated it was the first ever application
for a[n] asbestos-free joint compound to be produced in the United States.”
The trial court initially held a hearing on the motion for summary judgment on
October 8, 2014. The court heard argument, but continued the hearing so plaintiffs could
depose Goodman’s owner and the corporate representative of Georgia-Pacific
Corporation, another joint compound manufacturer. The hearing resumed on October 14,
2014. The court ultimately granted the motion for summary judgment, finding Goodman
had sustained its initial burden and plaintiffs failed to present evidence creating a triable
issue as to whether Charlifue was exposed to asbestos-containing products or materials
attributable to Goodman. The court sustained Goodman’s objections to much of the
evidence proffered by plaintiffs, including its objections to the Kirk and Bowman
depositions, the Ewing declaration, and the US Gypsum patent.
Plaintiffs subsequently moved for a new trial. The motion was denied. This
appeal followed.
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II. DISCUSSION
A. Evidentiary Issues
Plaintiffs’ primary argument on appeal is that the trial court erred in granting
Goodman’s objections to various evidence. Plaintiffs contend this evidence, which the
trial court refused to consider, shows there is a triable issue as to whether Charlifue was
exposed to asbestos from joint compound sold by Goodman. Specifically, plaintiffs
argue the trial court erred in sustaining the objections to (1) the deposition testimony of
Kirk and Bowman, (2) the US Gypsum patent and patent application, and (3) the Ewing
declaration. We review the trial court’s evidentiary rulings on summary judgment for
abuse of discretion. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852.)
We conclude the deposition testimony and patent materials were properly struck, but the
trial court erred in sustaining Goodman’s objections to the Ewing declaration.
1. Kirk and Bowman Depositions
All parties agree the Kirk and Bowman depositions were taken in other matters,
with Kirk testifying as the corporate representative for Kaiser Gypsum and Bowman as
the corporate representative for US Gypsum. Goodman objected to the depositions on
hearsay grounds, among other things. We conclude the trial court did not abuse its
discretion in sustaining these hearsay objections.
Evidence Code section 1292 concerns former testimony offered against a person
not a party to the former proceeding. The statute provides: “Evidence of former
testimony is not made inadmissible by the hearsay rule if: [¶] (1) The declarant is
unavailable as a witness; [¶] (2) The former testimony is offered in a civil action; and [¶]
(3) The issue is such that the party to the action or proceeding in which the former
testimony was given had the right and opportunity to cross-examine the declarant with an
interest and motive similar to that which the party against whom the testimony is offered
has at the hearing.” (Evid. Code, § 1292, subd. (a).)
As the proponents of Kirk’s and Bowman’s deposition testimony, plaintiffs bear
the burden of showing this evidence falls within an exception to the hearsay rule.
(Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688, 693.) Plaintiffs failed to
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meet that burden. They concede they made no showing Bowman was unavailable. As to
Kirk’s availability, plaintiffs merely point to the trial court’s statement that it could
speculate that Kirk is dead.
Even if plaintiffs had presented evidence that both Kirk and Bowman were
unavailable—they did not—there is no indication any of the parties to Kirk’s and
Bowman’s depositions had an interest or motive similar to Goodman’s in this action.
“Former testimony from a deposition rather than a trial is problematic since depositions
generally function as a discovery device where examination of one’s own client is
typically avoided so as not to reveal a weakness in the case or to prematurely disclose a
defense.” (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1150.)
Thus, while plaintiffs’ claims might be similar to the claims at issue in the former
proceedings, the defendants in the former proceedings did not have a similar motive to
cross-examine Kirk and Bowman as did Goodman in this case.
On reply, plaintiffs argue there were multiple defendants present during Kirk’s
deposition and some of these defendants may have had a motive similar to Goodman’s.
But it is unclear from the record what the relevant period of exposure was in these other
cases. In any event, plaintiffs’ speculation about the motives of the other defendants
represented at the deposition is insufficient. Plaintiffs have the burden to establish the
admissibility of hearsay evidence, and they have not presented any facts, either below or
on appeal, demonstrating how Goodman’s interests align with those of any of the parties
to the former proceedings.
2. Joint Compound Patent
The trial court also properly refused to take judicial notice of the compound patent
materials, as this evidence constitutes inadmissible hearsay. In sustaining Goodman’s
objections to the patent, the trial court explained: “I can always take judicial notice that
there was a patent. But I don’t have to take judicial notice of the content for the truth of
the matter asserted. So then the question is why would I even need to take judicial notice
if I’m not going to consider it?”
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The trial court was correct. While judicial notice may be taken of the patent as an
official act of the United States government (Evid. Code, § 452, subd. (c)), and while
judicial notice may be taken of the fact that certain statements were made in the patent, it
is improper to take judicial notice of the truth of the statements themselves. (Arce v.
Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483.) Yet it appears
the only reason plaintiffs sought to introduce the patent is because it purportedly makes
factual assertions regarding when asbestos-free joint compound first became
commercially available in the United States. The fact of when asbestos-free joint
compound first became commercially available is not a proper matter for judicial notice.
Plaintiffs now argue the fact a patent for an asbestos-free joint compound was
issued to US Gypsum in 1975 is relevant to the issue of whether they could prove
Charlifue was exposed to asbestos from US Gypsum’s joint compound sold between
1972 and 1978. But even if we were to ignore any factual assertions in the patent, the
fact that US Gypsum applied for a patent for an asbestos-free joint compound in 1973
does not prove an asbestos-free alternative was unavailable before that date. There may
have been features of the joint compound other than its lack of asbestos that made it
novel.
The case law on which plaintiffs rely does not help their case. In Brescia v.
Angelin (2009) 172 Cal.App.4th 133, the court held it was proper to take judicial notice
of the existence of records showing a patent application was denied, but it was improper
to notice the truth of the findings stated in the records, i.e., that a formula and ingredients
were obvious to persons of ordinary skill in the industry. (Id. at pp. 151–152.) Likewise,
here, it was improper to take judicial notice of any assertions in the patent that US
Gypsum’s joint compound was novel because it did not use asbestos. The other case
cited by plaintiffs, South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725,
involved a different type of patent, specifically a patent from the United States
confirming a Spanish-Mexican grant of a tide lot. (Id. at p. 743.)
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3. Ewing Declaration
We reach a different conclusion as to Ewing’s declaration. Ewing has practiced
industrial hygiene for 30 years with an emphasis on asbestos exposure in facilities. He
has conducted asbestos investigations in over 2,000 industrial, commercial, institutional,
and governmental buildings; measured asbestos exposures to workers in the building
trades; and researched the published literature. In his declaration, Ewing concludes: “[I]t
is my opinion, based upon my training, testing, and review of materials, that more likely
than not any joint compound materials that were supplied by Goodman . . . to U.S.
Taping before 1976 were asbestos-containing.”
The trial court sustained Goodman’s objections to the declaration, stating at a
hearing: “[E]xperts can rely upon hearsay and inadmissible evidence if there’s a proper
foundation. What I found with Mr. Ewing is, one, I didn’t see a foundation that he had
the expertise to even opine. [¶] And . . . . I found him to be a reader, that he was just
reading materials and saying, ‘This is what it is.’ [¶] So, the Court, as a gatekeeper . . . .
had a problem with the foundation. Not that I disagreed with it, I had a problem that it
appeared to be reading to me.” When plaintiffs’ counsel argued Ewing relied on US
Gypsum’s patent for an asbestos-free joint compound, the court responded: “Experts can
rely upon documents such as this. [¶] My problem with this particular expert is his
foundation to opine. I found it to be very generic.”
We agree with plaintiffs that the trial court’s ruling was an abuse of discretion.
“An expert may rely on otherwise inadmissible hearsay evidence provided the evidence is
reliable and of the type that experts in the field reasonably rely upon in forming their
opinions.” (People v. Yuksel (2012) 207 Cal.App.4th 850, 856.) An expert declaration in
opposition to summary judgment must be liberally construed and need not overflow with
detail. (See Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 187–
189 (Garrett ).) This does not mean, however, such an expert can make conclusory
assertions without explanation or support. “ ‘[A]n expert’s opinion rendered without a
reasoned explanation of why the underlying facts lead to the ultimate conclusion has no
evidentiary value because an expert opinion is worth no more than the reasons and facts
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on which it is based.’ ” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123, 126–
127.) An “ ‘expert opinion based on speculation or conjecture is inadmissible,’ ” and
“ ‘[a] court may conclude that there is simply too great an analytical gap between the data
and the opinion proffered.’ ” (Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 770, 771.)
In this case, there was sufficient foundation for Ewing’s opinions concerning the
asbestos content of the joint compound sold by Goodman. Ewing stated his opinion was
partially based on the US Gypsum patent for asbestos-free joint compound. Additionally,
Ewing relied on the deposition testimony of various corporate representatives from
companies that produced the joint compound sold by Goodman during the relevant
period. Ewing’s declaration also states his opinion is based on his “training, testing, and
review of materials.” While some of this foundational evidence might constitute
inadmissible hearsay, it was not unreasonable for an expert such as Ewing to rely upon it.
And contrary to the trial court’s suggestion, it does not appear Ewing was merely a
“reader.” Ewing’s declaration indicates he has significant experience in this area, and he
used that experience in evaluating the evidence discussed above.
The case law cited by Goodman does not demand a different result. Both Garrett,
and Ganoe v. Metalclad Insulation Corp. (2014) 227 Cal.App.4th 1577, reversed orders
sustaining objections to expert declarations submitted in opposition to summary
judgment. (Garrett, supra, 214 Cal.App.4th 173, 190; Ganoe, at p. 1586, fn. 4.) And
neither case enunciates new requirements for expert declarations. We also find Casey v.
Perini Corp. (2012) 206 Cal.App.4th 1222 (Casey), which affirmed the dismissal of an
expert declaration, is distinguishable. In Casey, the expert opined the plaintiff was
exposed to asbestos based on federal regulations providing that buildings constructed
before 1980 were built with presumed asbestos-containing materials. (Id. at p. 1233.)
“Notably absent [wa]s any factual support for the proposition that the challenged jobsites
contained asbestos during the relevant time period.” (Ibid.) In contrast, in the instant
action, Ewing’s opinion was not predicated on regulatory presumptions, and he actually
considered evidence concerning the particular products at issue.
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Goodman concedes Ewing was entitled to rely on deposition testimony from a
corporate representative concerning the asbestos content of his company’s products. But
Goodman argues the corporate representative provided conflicting testimony on this issue
in different cases, and Ewing failed to review certain testimony suggesting the company’s
joint compounds were asbestos-free by September 1973. Goodman further challenges
Ewing’s reliance on the US Gypsum patent, and argues there was no basis for him to
conclude all 82 different manufacturers of joint compound used asbestos during the
relevant period. These arguments might undermine the weight of Ewing’s opinion, but
they do not render his declaration inadmissible. Additionally, as an expert with training
in this area, Ewing could properly rely on the US Gypsum patent and other types of
inadmissible evidence in forming his opinion.
B. Summary Judgment
Turning to the merits, we conclude summary judgment was inappropriate because
plaintiffs raised a triable issue as to whether Charlifue was exposed to asbestos from the
products sold by Goodman.
We review the trial court’s decision to grant Goodman’s motion for summary
judgment de novo. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Summary
judgment must be granted if all the papers and affidavits submitted, together with “all
inferences reasonably deducible from the evidence” and uncontradicted by other
inferences or evidence, 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).) Where, as here, the defendant is the moving party, he or she may meet the
burden of showing a cause of action has no merit by proving one or more elements of the
cause of action cannot be established. (See id., subd. (o)(1).) Once the defendant has
met that burden, the burden shifts to the plaintiff to show the existence of a triable issue
of material fact as to that cause of action. (Union Bank v. Superior Court (1995)
31 Cal.App.4th 573, 583.) We must consider all evidence in the light most favorable to
the nonmoving party, which in this case is plaintiffs. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843.)
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Goodman argues it successfully shifted the burden based on Charlifue’s deposition
testimony and plaintiffs’ factually devoid discovery responses. Goodman further argues
plaintiffs failed to raise a triable issue as to whether Charlifue was exposed to an
asbestos-containing product purchased from its stores. On this last point we disagree.
Charlifue’s deposition testimony indicates he regularly purchased joint compound from
Goodman during the relevant period. As defendant points out, Charlifue sometimes had
problems recalling specific dates, and also remembered shopping at other hardware
stores. But viewing Charlifue’s deposition testimony in the light most favorable to
plaintiffs, as we must, we conclude it is sufficient to show Goodman may have supplied
joint compound with which Charlifue worked during the relevant period. Moreover,
Ewing’s declaration, which is discussed above, suggests any joint compound supplied by
Goodman during the relevant period must have contained asbestos.
The instant action is distinguishable from Collin v. CalPortland Co. (2014)
228 Cal.App.4th 582. In that asbestos personal injury case, the court affirmed the grant
of summary judgment in favor of Kaiser Gypsum because the plaintiff could not say
exactly when he encountered Kaiser Gypsum’s joint compound. (Id. at p. 596.) The date
of the exposure was important because Kaiser Gypsum had introduced evidence its joint
compounds were asbestos-free after 1976. (Ibid.) In contrast, here, Charlifue testified he
remembered first going to Goodman to purchase joint compound in 1972, and Ewing
opined any joint compound supplied by Goodman prior to 1976 would have contained
asbestos.
For these reasons, we conclude the trial court erred in granting summary judgment
in favor of Goodman.
III. DISPOSITION
The judgment is reversed with directions to the trial court to vacate the order
granting summary judgment. Plaintiffs are entitled to recover costs on appeal.
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_________________________
Margulies, J.
We concur:
_________________________
Humes, P.J.
_________________________
Banke, J.
A144642
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