Turley v. Familian Corp.
18 Cal. App. 5th 969
| Cal. Ct. App. 5th | 2017Background
- Plaintiffs Keith and Joy Turley sued multiple defendants for asbestos-related disease allegedly caused by exposures while Keith worked at PG&E; Familian Corporation was later named as a Doe and answered.
- Familian moved for summary judgment arguing plaintiffs had no evidence Turley was exposed to asbestos from any Familian product; Familian relied on plaintiffs' discovery responses and deposition excerpts from some witnesses.
- Plaintiffs opposed with, among other things, a declaration from Paul Scott (a former PG&E warehouseman) stating he ordered, received, and distributed Familian-supplied asbestos-containing gaskets in the Willows district and observed Turley near gasket replacements.
- After the opposition, the court ordered Scott deposed; Familian used portions of his deposition in its reply and later submitted a certified transcript; the trial court found the deposition "conclusively negates" Scott's declaration and disregarded the declaration under D'Amico, then granted summary judgment for Familian.
- The Court of Appeal reversed, holding Scott’s declaration and deposition, taken together, created triable issues on exposure and that the trial court misapplied D'Amico and improperly rejected evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs presented triable evidence of exposure to Familian-supplied asbestos products | Scott’s declaration and deposition show Familian asbestos gaskets were at worksite, were frequently supplied, and Turley was present during gasket changes | Familian argued plaintiffs lacked evidence of exposure to Familian products; deposition excerpts showed Scott could only speculate about specific Familian-supplied asbestos gaskets | Held for plaintiffs: Scott’s testimony (declaration + deposition) created triable issues of fact as to exposure; summary judgment improper |
| Whether the trial court properly disregarded Scott’s declaration under D’Amico because it conflicted with his deposition | Turley: D'Amico doesn’t apply (declaration preceded deposition); even if it did, deposition did not clearly and unequivocally contradict declaration | Familian: deposition contradicted declaration so the later declaration should be disregarded | Held: D'Amico inapplicable/misapplied—no clear, unambiguous contradiction; trial court erred in excluding the declaration |
| Whether defendant’s reply submissions (deposition excerpts) were properly considered | Turley: late deposition evidence in reply deprived plaintiffs of opportunity to respond and cannot justify summary judgment | Familian: relied on deposition excerpts to rebut declaration | Held: even assuming reply evidence was considered, the substance did not eliminate triable issues; reviewing court exercised de novo review and found error |
| Proper standard of review for evidentiary rulings on summary judgment | Turley: summary judgment reviewed de novo; evidentiary rulings should not defeat triable issues | Familian: evidentiary rulings reviewed for abuse of discretion | Held: court reviewed de novo (or found abuse of discretion) and concluded trial court erred legally and factually |
Key Cases Cited
- D'Amico v. Board of Medical Examiners, 11 Cal.3d 1 (1974) (rule permitting courts to disregard later declarations that clearly and unequivocally contradict prior sworn discovery testimony)
- Lineaweaver v. Plant Insulation Co., 31 Cal.App.4th 1409 (1995) (circumstantial evidence that a defendant's product was present and prevalent at a worksite can support an inference of exposure)
- Webb v. Special Electric Co., Inc., 63 Cal.4th 167 (2016) (evidence that a supplier’s asbestos was present contemporaneously with plaintiff’s exposures can suffice for causation/exposure)
- Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953 (1997) (threshold exposure and substantial-factor causation principles in asbestos cases)
- Visueta v. General Motors Corp., 234 Cal.App.3d 1609 (1991) (application of D'Amico-type rule to contradictory sworn statements)
- Scalf v. D.B. Log Homes, Inc., 128 Cal.App.4th 1510 (2005) (limitations on using post-deposition declarations to defeat summary judgment where they contradict deposition)
- McGonnell v. Kaiser Gypsum Co., 98 Cal.App.4th 1098 (2002) (affirming summary judgment where testimony provided only speculation about exposure)
- Dumin v. Owens-Corning Fiberglas Corp., 28 Cal.App.4th 650 (1994) (insufficient evidence of exposure where product presence and prevalence were not established)
- Reid v. Google, Inc., 50 Cal.4th 512 (2010) (ambiguities in evidence are for trial, not summary judgment)
- Nazir v. United Airlines, Inc., 178 Cal.App.4th 243 (2009) (de novo review principles for summary judgment)