Catiller v. Super.
Filed 5/30/13 Catiller v. Super. Ct. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
EDWARD CATILLER et al.,
Petitioners,
v.
THE SUPERIOR COURT
OF LOS ANGELES
COUNTY,
Respondent;
SCHNEIDER ELECTRIC USA, INC.,
Real
Party in Interest.
B248435
(Los
Angeles County
Super. Ct.
No. BC492719)
(JCCP No. 4674)
ORIGINAL
PROCEEDINGS in mandate. Emilie Harris
Elias, Judge. Petition granted.
Napoli Bern
Ripka Shkolnik & Associates LLP and Rebecca A. Cucu for Petitioners.
No appearance for Respondent.
K&L Gates LLP, Michele C. Barnes
and Zachariah D. Baker for Real Party in Interest.
Petitioners
Edward and Barbara Catiller (collectively plaintiffs)
filed this action against numerous defendants based on the contention that
Edward was exposed to asbestos while in the navy, which resulted in malignant
pleural mesothelioma, a terminal cancer.
During his navy career, Edward allegedly was exposed to asbestos
contained in Square D arc chutes, arc shields and electric switches
manufactured by real party in interest Schneider Electric USA, Inc. (SEI).
On
January 2, 2013, plaintiffs’
motion for trial preference was
granted. (Code Civ. Proc., § 36.)
On
March 11, 2013, plaintiffs
noticed the deposition of SEI’s most knowledgeable person regarding the
products that contained asbestos, the years they contained asbestos and the
quantitative percentage of asbestos contained in the products. The date of deposition was set as March 26, 2013.
SEI
did not timely provide its most knowledgeable person for deposition, thereby
depriving plaintiffs of the opportunity to obtain information necessary to the
action. Instead, SEI filed a motion for
summary judgment based on the contention that plaintiffs had no evidence that
the products used by Edward during his employment with SEI caused or
contributed to his mesothelioma.
On
April 9, 2013, plaintiffs
appeared ex parte seeking to compel the deposition of SEI’s most knowledgeable person. Counsel for SEI stated the only date on SEI
would produce the representative was Thursday, April 25, 2013, a date two weeks
after plaintiffs’ opposition to the summary judgment motion was due and three
days (including a weekend) before the motion was set for hearing on Monday,
April 29, 2013. The trial court allowed
this discovery delay irrespective of the date for the hearing on the motion for
summary judgment and imminent trial date, a ruling that deprived plaintiffs of
any meaningful opportunity to obtain the deposition transcript, review the
transcript, and prepare a substantive response to the
A plaintiff is
required to make only a (1) threshold exposure to a defendant’s
asbestos-containing products; and (2) a reasonable medical probability that a
particular exposure was a substantial factor that is, “more than negligible or
theoretical†in causing Edwards’s malignant pleural mesothelioma. (Rutherford
v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 975-978.)
Because of the
discovery delay, plaintiffs filed a motion for a continuance of the summary
judgment motion based on subdivision (h) of section 437c: “If it appears from the affidavits submitted
in opposition to a motion for summary judgment or summary adjudication or both
that facts essential to justify opposition may exist but cannot, for reasons
stated, then be presented, the court shall
deny the motion, or order a continuance
to permit affidavits to be obtained or discovery to be had or may make any
other order as may be just. The
application to continue the motion to obtain necessary discovery may also be
made by ex parte motion at any time on or before the date the opposition
response to the motion is due.†(Italics
added.)
On April 29, 2013,
the trial court inexplicably denied the motion for a continuance and granted
SEI’s motion for summary judgment, indicating plaintiffs should have somehow
obtained discovery at an earlier time and/or obtained a transcript of the
deposition after only one court day and
prepared substantive opposition to the summary judgment motion in order to
provide evidence to support the contention that SEI was partially responsible
for Edward’s exposure to asbestos.
The court
indicated that because the deposition of SEI’s most knowledgeable person had
taken place on Thursday, April 25,
2013, “You had time for opposition.†The court commented, “I think there is a
downside to everybody with regard to preference cases. Okay?
If you want them, you got then. I
give them to you when you ask for them.
You could have done more discovery and then gotten it. That’s all I can tell you.â€
Irrespective of
the respondent’s court statements, a plaintiff who is entitled to trial
preference for reasons of health (§ 36) also is entitled to the mandatory
continuance provided in subdivision (h) of section 437c. This is the rule, especially where, as here,
the delay was caused in large part by a defendant’s discovery delay.
The manner in
which the trial court handled the discovery requests, the request for
continuance, and the motion for summary judgment deprived plaintiffs of a
viable opportunity to make the threshold showing of the possibility Edward’s
malignant pleural mesothelioma resulted, in part, from products manufactured by
SEI. It is obvious that the delay of
discovery was caused by SEI’s failure to cooperate in discovery. We disagree with the trial court’s language
indicating that plaintiffs’ were at fault in the delay of the deposition of
SEI’s most knowledgeable person until only one court day before the hearing on
the motion for summary judgment.
name="_ftnref3" title="">[3]
“ ‘[A] summary
judgment is a drastic measure which deprives the losing party of trial on the
merits.’ †(Bahl v. Bank of America (2001) 89 Cal.App.4th
389, 395.) “To mitigate summary
judgment’s harshness, the statute’s drafters included a provision making
continuances—which are normally a matter within the broad discretion of trial
courts—virtually mandated . . . .†(
(h).)
Where the opposing
party submits an adequate affidavit showing that essential facts
timely, the court must either deny
summary judgment or grant a
continuance. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) The Legislature’s inclusion of the words
be liberally granted.†(
The fact that
plaintiffs have a preferential trial date
based on Edward’s health should not result in an adverse summary judgment where
the delay in discovery was caused by SEI’s failure timely to provide its most
knowledgeable person for deposition. The
trial court’s actions in this matter are a manifest abuse of its discretion,
leaving plaintiffs insufficient time to review the deposition testimony and
prepare a substantive response to SEI’s motion for summary judgment.
On May 6, 2013, we
notified the trial court and all parties of our preliminary decision to grant a
peremptory writ of mandate in the first instance (Lewis v. Superior Court
(1999) 19 Cal.4th 1232; Palma v.
U.S. Industrial Fasteners, Inc.
(1984) 36 Cal.3d 171), and gave the trial court an opportunity to
change and correct its order in compliance with the course of action set forth
in Brown, Winfield & Canzoneri, Inc.
v. Superior Court (2010) 47 Cal.4th 1233. The time specified in the May 6, 2013 notice has expired and the
trial court has taken no action to comply with the procedures established in
We have received
both opposition to the issuance of a peremptory writ of mandate and a reply
brief.
Having
complied with all procedural requirements (
Industrial Fasteners, Inc., supra,
36 Cal.3d 171), and having determined that plaintiffs’ “entitlement to relief
is so obvious that no purpose could reasonably be served by plenary
consideration of the issue . . . .†(Ng v.
Superior Court (1992) 4 Cal.4th 29, 35), we conclude the trial court abused
its discretion both in denying the request for continuance and in granting the
motion for summary judgment.
The petition for
writ of mandate is granted.
The trial court is directed
to: (1) vacate the order granting
summary judgment; (2) provide plaintiffs a 10-day period to prepare a
substantive response to the summary judgment motion and allow plaintiffs to
incorporate the deposition of SEI’s most knowledgeable person into the
opposition; (3) set a five-day period for SEI to file and personally serve any
further briefing supporting its motion; (4) set a date for hearing the motion
for summary judgment within 10 days thereafter, and (5) if the motion is denied
proceed to trial on the earliest possible date.
Plaintiff shall
recover all costs of this proceeding.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
Acting P. J.
ALDRICH, J.
HEESEMAN, J.
name="_ftn1" title="">[1]
the plaintiffs are referenced as individuals, first names will be used in the
interest of clarity and convenience.
title="">[2]
references are to the Code of Civil Procedure.
Subdivision (a)(2) of section 36 provides for trial preference
where: “The health of the party is such
that a preference is necessary to prevent prejudicing the party’s interest in
the litigation.â€
Subdivision (d) of section 36
further provides: “In its discretion,
the court may also grant a motion for preference that is accompanied by clear
and convincing medical documentation that concludes that one of the parties
suffers from an illness or condition raising substantial medical doubt of
survival of that party beyond six months, and that satisfies the court that the
interests of justice will be served by granting the preference.â€
