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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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;
DEXTER HYSOL AEROSPACE, LLC,
Real
Party in Interest.
B248439
(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.
Lewis Brisbois Bisgaard & Smith LLP,
Jeffry A. Miller, Arezoo Jamshidi, Caroline E. Chan and Arezou Khonsari 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 Hysol adhesives and sealants manufactured by real party in
interest Dexter Hysol Aerospace, LLC (DHA).
On
January 2, 2013, plaintiffs’
motion for trial preference was granted.
(Code Civ. Proc., § 36.)
name="_ftnref2" title="">[2] The trial was scheduled for May 1, 2013.
On
March 7, 2013, plaintiffs
noticed the deposition of DHA’s most knowledgeable person with the date of
deposition set as March 19, 2013.
DHA
failed to provide its most knowledgeable person to testify at deposition and
did not produce the requested documents, by this means depriving plaintiffs of the
opportunity to obtain evidence and material necessary to establish their
allegations.
Rather than timely
responding to the discovery requests, DHA filed a motion for summary judgment
based on the contention that plaintiffs had no evidence that the products
manufactured, sold, or provided by DHA caused or contributed to Edward’s
terminal mesothelioma.
Plaintiffs filed
an ex parte application to require production of documents and to compel
deposition of DHA’s most knowledgeable person.
In a series of ex parte
applications in which plaintiff sought a definite date for the deposition, and
DHA sought to delay the deposition, counsel for DHA stated the only date on
which DHA would produce its representative was Friday, April 26, 2013, a date
two weeks after plaintiffs’ opposition to the summary judgment motion was due
with only the weekend intervening before the date set for hearing on the motion
for summary judgment, Monday, April 29, 2013.
By this means,
plaintiffs were left without a reasonable time period to review the deposition
in a meaningful manner and prepare a substantive response to the motion for
summary judgment.
The trial court
permitted this delay in discovery irrespective of the date for the hearing on
DHA’s motion for summary judgment and the imminent trial date, set for
Wednesday, May 1, 2013.
Plaintiffs then
filed a motion to continue the motion for summary judgment 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
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.)
A
plaintiff must establish (1) threshold exposure to a defendant’s
asbestos-containing products; and (2) a reasonable medical probability that a
particular exposure was more than a “negligible or theoretical†factor in
causing his injury. (
(1997) 16 Cal.4th 953, 975-978.)
Plaintiffs provided evidence that DHA had purchased 523 pounds of
“asbestos, resin-grade asbestos†but, in the absence of complete discovery,
could not establish the manner in which DHA had used the asbestos after the
initial purchase.
Irrespective of
this evidence and DHA’s failure to cooperate in discovery, the trial court
without explanation denied the motion for a continuance and granted the motion
for summary judgment.
“ ‘[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 . . . .†( Ibid.; § 437c, subd. (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.†(
On April 29, 2013,
irrespective of defendant’s obstruction of plaintiffs’ timely efforts to obtain
necessary and relevant evidence, the trial court inexplicably granted DHA’s
motion for summary judgment, stating plaintiffs had not provided evidence to
support the contention that DHA was partially responsible for Edward’s exposure
to asbestos.
The court
indicated that because the deposition of DHA’s most knowledgeable person had
taken place on Friday, April 26, 2013, “You had time for opposition.†The court informed plaintiffs’ counsel she
could have expedited the transcript of a deposition that had taken place only
the one weekend before the hearing on the summary judgment motion and provided
it to the court prior to the hearing.
The court
commented, “You know what? I’m done. .
. I understand you want a
continuance. You cannot have a
continuance with your preference. . . .
If you want to get rid of your preference and you want to go out forever
for trial, fine. But otherwise you have
made a decision to go on short notice and we have to go on short notice. Because that is your right and that is what
you’ve chosen to do.â€
Despite the trial
court’s comments, the fact that plaintiffs are entitled to trial preference
pursuant to section 36
name="_ftnref3" title="">[3]
and have a preferential trial date based on Edward’s health
adverse summary judgment particularly where, as here, the primary cause of the
delay in discovery was DHA’s delay in providing its most knowledgeable person
for deposition.
On May 6, 2013, we
notified the trial court and the parties of our conclusion that the trial court
had erred in its denial of plaintiffs’ request for a continuance and the
granting of the motion for summary judgment (Lewis v. Superior Court
(1999) 19 Cal.4th 1232; Palma v.
U.S. Industrial Fasteners, Inc.
(1984) 36 Cal.3d 171) and directed the trial court to comply with the
procedure established in Brown, Winfield
& Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, and
reconsider the order. The trial court
failed to comply with the course of action set forth in Brown.
We have received
opposition and a reply brief from the parties.
Having
complied with all procedural requirements (Palma
v. U.S. 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. We
therefore conclude this is an appropriate case for issuance of a peremptory
The petition for
writ of mandate is granted.
Let a
peremptory writ of mandate issue directing the respondent court 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 DHA’s most knowledgeable person into the opposition; (3) set
a five-day period for DHA 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 immediately
proceed to trial.
Plaintiffs 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]
interest of clarity and for convenience, first names of the plaintiffs will be
used when referenced as individuals.
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€
