Gregorio v. Rust-Oleum Corp.



















Filed 4/19/13 Gregorio v. Rust-Oleum Corp. CA4/3













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

ANNE GREGORIO, Plaintiff and Appellant, v. RUST-OLEUM CORPORATION, Defendant and Respondent.

G046533 (Super. Ct. No. 30-2007-00031378) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Kim Garlin Dunning, Judge. Reversed.

Kinkle, Rodiger and
Spriggs and Janine L. Highiet-Ivicevic for Plaintiff and Appellant.

Walsworth Franklin
Bevins & McCall, Karen M. Sullivan, Stephanie J. Rothberg and
Sadaf A. Nejat for Defendant and Respondent.

*
* *

Introduction

Anthony
Gregorio died of leukemia in 2007.
Anthony’s widow, Anne Gregorio,href="#_ftn1" name="_ftnref1" title="">[1]
contends Anthony developed leukemia as a result of work-related exposure to
chemical products, including, but not limited to, two specific products
manufactured by Rust-Oleum Corporation (Rust-Oleum). Rust-Oleum filed a motion for summary
judgment, arguing Anne could not prove Anthony’s exposure to Rust-Oleum’s
products; exposure is a necessary component of causation in a toxic tort
case. The trial court granted the
motion; Anne appeals.

We
conclude that the evidence Anne offered in opposition to the summary judgment motion
raised a triable issue of material fact as to Anthony’s exposure to the
Rust-Oleum products identified by Anne in the second amended complaint. We therefore reverse.

Statement of Facts and Procedural History

Anthony
worked as a tool and die maker and manager at Instrument Specialties Company,
Inc. (Instrument Specialties), from 1987 through 1997. From 1997 through 2005, Anthony worked as a
production manager for Interplex Nascal, Inc. (Interplex). From 2005 through 2006, he was a tool and die
department manager at Qualtek Manufacturing, Inc. (Qualtek). At each place of employment, Anthony
allegedly worked with and was exposed to chemical products containing
significant concentrations of benzene and other toxic chemicals. Anne alleged that, as a result of his
exposure to these chemicals, Anthony developed acute myelogenous leukemia. He died in July 2007.

Anne
and Christopher sued Rust-Oleum, among many other manufacturers of chemical
products, for negligence, strict
liability, fraudulent concealment, and breach of implied warranties. In the complaint, it was alleged that Anthony
had been exposed to Industrial Choice Aerosol—Topcoats, manufactured by
Rust-Oleum, as well as “other products to be determined during discovery.” The original complaint was filed in December
2007, and a first amended complaint was filed in August 2008. Christopher dismissed his claims against
Rust-Oleum, with prejudice, in January 2011.

In
a verified supplemental response to a joint product identification and exposure
fact sheet, Anne stated that Anthony had been exposed to Rust-Oleum’s
Industrial Choice Aerosol—Topcoats while working at Qualtek.

In
March 2011, Rust-Oleum filed a motion for summary judgment or, in the
alternative, summary adjudication. The
motion was originally scheduled for a hearing in June 2011. Pursuant to Anne’s request to conduct
additional discovery, the trial court continued the date for the hearing to
September 2011. In August, the court
granted another request to continue the summary judgment motion hearing to
October 2011, to allow Anne to conduct further discovery. The court also ordered Anne to file a second
amended complaint removing her claims for punitive damages, fraudulent
concealment, and breach of implied warranties, and removing reference to
dismissed defendants, by the end of August 2011.

On
August 31, 2011, Anne filed
her second amended complaint. The second
amended complaint added a new product manufactured by Rust‑Oleum—Industrial
Choice 1600—to which, Anne alleged, Anthony had been exposed, and which, Anne
further alleged, had proximately caused Anthony’s injuries. Nothing in the appellate record shows Anne
sought or obtained leave of court to amend the complaint to add a new product after
Rust-Oleum’s motion for summary judgment had been filed. By the same token, nothing in the appellate
record shows Rust-Oleum ever objected to the addition of new material facts to
the complaint while its motion was pending.
Therefore, we will treat the motion for summary judgment as being
directed at the second amended complaint.
In practical effect, this is the same approach used by the trial court
and the parties.

Anne
requested a further continuance of the summary judgment motion hearing; the court
granted the request, setting the hearing for November 2011. On November
3, 2011, one day before filing her opposition to the summary
judgment motion, Anne served a second supplemental response to the joint
product identification and exposure fact sheet.
(The second supplemental response was not verified; Rust‑Oleum did
not raise any objection to either the lack of verification or the lateness of
the response.) In the second
supplemental response, Anne mentioned only Industrial Choice Aerosol—Topcoats
(not Industrial Choice 1600) as a Rust-Oleum product to which Anthony had been
exposed. The second supplemental
response stated that Anthony had been exposed to that product not only at
Qualtek, but also at Instrument Specialties and Interplex.

After
a hearing, the trial court granted Rust-Oleum’s motion for summary
judgment. Judgment was entered, and Anne
timely appealed.href="#_ftn2" name="_ftnref2"
title="">[2]




Discussion

I. >Standard of review

“A trial court properly grants summary
judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter
of law. [Citation.] We review the trial court’s
decision de novo, considering all of the evidence the parties offered in
connection with the motion (except that which the court properly excluded) and
the uncontradicted inferences the evidence reasonably supports. [Citation.]”
(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

Code of Civil Procedure section 437c,
subdivision (p)(2) provides:
“A defendant . . . has met his or her burden of
showing that a cause of action has no merit if that party has shown that one or
more elements of the cause of action, even if not separately pleaded, cannot be
established, or that there is a complete defense to that cause of action. Once the defendant . . . has
met that burden, the burden shifts to the
plaintiff . . . to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may
not rely upon the mere allegations or denials of its pleadings to show that a
triable issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists as to that
cause of action or a defense thereto.”

II. >The
trial court erred in concluding Anne failed to raise

a triable issue of material fact.

Rust-Oleum’s motion for summary judgment was
based on whether Anne could prove causation.
In a toxic tort case, such as this one, causation is an essential
element, whether the theory pled is negligence or strict liability. (Setliff
v. E. I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525,
1533-1534.) Before fully entering into
an analysis of causation, a plaintiff must establish exposure to the product he
or she contends caused the injury. (>Hunter v. Pacific Mechanical Corp.
(1995) 37 Cal.App.4th 1282, 1284.)
“If there has been no exposure, there is no causation.” (McGonnell
v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103.)

A. >Rust-Oleum’s motion for summary judgment
shifted the burden

of showing a triable issue of material fact on exposure.

Anne’s first amended complaint, as
supplemented by her first supplemental response to the joint product
identification and exposure fact sheet,
alleged that Anthony was exposed to Industrial Choice Aerosol—Topcoats
at Qualtek. In its motion for summary
judgment, Rust-Oleum successfully shifted the burden to Anne by offering
admissible evidence that Anthony was not exposed to Industrial Choice
Aerosol—Topcoats at Qualtek, as follows:

1. Anthony Fagnant, the chief executive officer
at Qualtek since 2000, testified at a deposition he had no information that any
Rust-Oleum products were used at Qualtek, or that Anthony would have been
exposed to any Rust-Oleum products while employed there.

2. Amber Sims, who briefly worked with Anthony
at Qualtek, testified at a deposition that she was not familiar with
Rust-Oleum, and had no knowledge that Anthony worked with or around any
Rust-Oleum products while employed by Qualtek, including, but not limited to, Industrial
Choice Aerosol—Topcoats.

3. Rust-Oleum had no records of any sales of its
products, including Industrial Choice Aerosol—Topcoats, to Qualtek.

4. Fagnant testified that Qualtek’s material
safety data sheets and inventory lists identifying Rust-Oleum products meant
only that such products were currently in use at Qualtek, but did not mean that
they were used at Qualtek in 2005 or 2006.

5. Richard Wilcox, who worked with Anthony at
Interplex from 1999 through 2005, testified at a deposition that he could not
recall any Rust-Oleum products being used at Interplex, could not recall
Anthony using any Rust-Oleum products at Interplex, and had never heard of
Industrial Choice Aerosol—Topcoats.

6. Debra Yost, the head of human resources for
the successor in interest to Instrument Specialties, testified as the person
most knowledgeable at Instrument Specialties.
Yost had no knowledge of which companies supplied chemical products to
Instrument Specialties while Anthony was employed there, nor was she able to
identify anyone who would have that information.

B. Anne
successfully showed a triable issue of material fact on exposure.

As
noted ante, the second amended
complaint added a new Rust-Oleum product as an alleged cause of Anthony’s
injuries—Industrial Choice 1600.
Additionally, the second supplemental response to the joint product
identification and exposure fact sheet added Instrument Specialties and
Interplex as sites where Anthony was allegedly exposed to the chemicals causing
his injuries. Rust-Oleum did not object
to Anne’s amendment of the complaint or to the joint product identification and
exposure fact sheet filed after the motion for summary judgment.

As
explained in detail post, the
deposition testimony of Richard Shearer, offered by Anne in opposition to the
motion for summary judgment, was sufficient to raise a triable issue of
material fact as to Anthony’s exposure to Rust-Oleum products while working at
Instrument Specialties. For purposes of
this opinion, we need not consider the deposition testimony of Scott Drouin,
who worked with Anthony at Interplex, or the declaration of Michael Williams,
who worked at Qualtek, but who may have worked there only after Anthony had
left the company. For this reason, we
need not address the separate issue raised by Anne on appeal that the trial
court erred by excluding the Williams declaration on grounds of relevance,
speculation, lack of foundation, and immateriality.

Shearer
worked with Anthony at Instrument Specialties from 1993 through 1996. Shearer identified Rust-Oleum products used
at Industrial Specialties. Shearer
personally saw Anthony use Rust‑Oleum products during his employment at
Instrument Specialties to “paint[] the size of the dies themselves so we can
identify the customer, who the die went to, and the product line.” Shearer could not be more precise about the
specific Rust-Oleum products to which Anthony was exposed.

The
question we face is whether Anne raised a triable issue of material fact
through Shearer’s testimony that he personally observed Anthony using
Rust-Oleum products in the course of his work at Instrument Specialties,
although Shearer could not identify either Industrial Choice Aerosol—Topcoats
or Industrial Choice 1600 as the specific product Anthony used. We conclude she did so.

Rust-Oleum
contends that the trial court sustained one or more of its objections to the
testimony of Shearer. In this regard,
the minute order reads as follows:
“Based on depositions conducted while this motion was pending (witnesses
Shearer and Drouin), plaintiff failed to produce admissible evidence that would
create a triable issue of material fact as to decedent’s exposure to moving
party’s product.” We disagree with
Rust-Oleum’s interpretation of the minute order. The minute order does not state that the
testimony of Shearer and Drouin was inadmissible; to the contrary, it states
that even if that testimony is considered, Anne has not produced admissible
evidence to create a triable issue of material fact. Our conclusion is bolstered because (1) the
minute order sustained objections to the Williams declaration, which shows the
court knew how to clearly sustain objections to evidence when it chose to do
so, and (2) the court did not use the proposed order regarding Rust-Oleum’s
evidentiary objections, which would have shown clearly which portions of
Shearer’s testimony were being excluded and why. Code of Civil Procedure section 437c,
subdivision (c) provides that the trial court must consider all evidence
offered by the parties, except evidence to which an objection has been >made and sustained. (See Reid
v. Google, Inc. (2010) 50 Cal.4th 512, 526.) And, on appeal, this court must conclude the
trial court considered all evidence to which an objection was not specifically
sustained. (Id. at pp. 526-527.)
Therefore, we reject Rust‑Oleum’s contention that we must not
consider Shearer’s testimony because the trial court sustained one or more
objections to it.

Rust-Oleum’s
objections to Shearer’s testimony, however, are preserved on appeal. (Reid
v. Google, supra, 50 Cal.4th at p. 534.) Rust-Oleum argues on appeal (as it did in the
trial court) that Shearer’s testimony was irrelevant, vague, speculative, and
lacking in foundation because Shearer could not identify the specific
Rust-Oleum product that he had observed Anthony using, and Shearer was
unfamiliar with the Industrial Choice Aerosol—Topcoats and Industrial Choice
1600 products. We reject Rust‑Oleum’s
evidentiary arguments. Those arguments
address whether the evidence creates a triable issue of material fact, not its
admissibility.

Rust-Oleum
contends that Shearer was not able to identify the specific Rust-Oleum product
or products used at Instrument Specialties from pictures shown to him at his
deposition, and specifically that he could not identify a picture of a can of
Industrial Choice 1600. The evidence
contained in the appellate record does not support Rust-Oleum’s argument,
however. At the second session of
Shearer’s deposition, Rust‑Oleum’s counsel questioned Shearer as follows:

“Q. You’ve heard of a company called Rust-Oleum
Corporation?

“A. Yes, I have.

“Q. Have you ever personally used Rust-Oleum?

“A. Yes, I have.

“Q. Have you personally used the product?

“A. Yes.

“Q. Did you ever use any Rust-Oleum products when
you worked at Instrument Specialties?

“A. I didn’t, no.

“Q. Did you ever see anybody else who worked at
Instrument Specialties ever use a Rust-Oleum product?

“A. Yes.

“Q. And what product did you see used?

“A. Spray can.

“Q. Aside from a spray can, did you ever see any
other Rust-Oleum products used at Instrument Specialties?

“A. No, I did not.

“Q. And did you ever see Mr. Gregorio ever use
the Rust-Oleum spray can?

“A. Yes.

“Q. What do you mean by Rust-Oleum spray can?

“A. Spray paint.

“Q. Did you actually ever see the actual
container of the Rust-Oleum spray paint?

“A. Yes, I did.

“Q. . . . [¶] When did you see Mr.
Gregorio use Rust-Oleum spray paint?

“A. Probably weekly.

“Q. When’s the first time that you remember
seeing him use Rust-Oleum spray paint?

“A. During the first week he was there. It was standard procedure.

“Q. What do you mean by it was standard
procedure?

“A. One of the identifications we used for our
tools was we painted the tools the color of the customer. All our customers were color coded.

“Q. And when you say ‘tools,’ what do you mean by
tools?

“A. Stamping dies.

“Q. So do you have a specific recollection of any
time that you actually saw Mr. Gregorio using Rust-Oleum spray paint?

“A. Yes.

“Q. When was that?

“A. When he was building a new die.

“Q. And building a new die would depend on
different projects and different customers that you had?

“A. Yeah.
The customer requirements were our requirements. Our customers had different colors, and if
the customer paid for it, we painted their color on there so we could identify
their tools. If it was our tool, we
painted it red. That was our color.

“Q. Did you ever actually see the actual can of
Rust-Oleum spray paint that Mr. Gregorio was using?

“A. Yes.

“Q. Can you describe what it looked like?

“A. Oh, jeez.
White with the Rust-Oleum logo on the front of it, red and orange or red
and yellow I guess is what it is, with the name Rust-Oleum on the front and the
color cap and some boilerplate in the back of the can. I guess there were safety—how to use it,
things like that.

“Q. Where was the red and yellow located on the
can?

“A. On the cap.
And I think—you mean on the can?
It was part of the ‘O,’ if I remember correctly, in Rust-Oleum.

“Q. And what did the Rust-Oleum—what color was
that, that lettering Rust-Oleum?

“A. I believe it was black.

“Q. Do you remember any other writing on the can
of Rust-Oleum spray paint?

“A. The boilerplate in the back of it and then,
you know, the size or the volume of the can.
I’m sure there was some other things on there, but I distinctly remember
their Rust-Oleum logo on there, which is the rust and big ‘O’ and then leum on
there. [¶] . . . [¶]

“Q. Do you remember—you called it
boilerplate. Do you remember what any of
that language said?

“A. No.

“Q. Do you know what size can that you saw?

“A. No.

“Q. Do you remember any other colors, symbols or
writing other than what you’ve already just testified to with regard to the
Rust-Oleum spray paint?

“A. They’ve changed their colors and labels since
then, but I don’t remember anything else about that.

“Q. [¶] . . . [¶] Do you know
what color Rust-Oleum spray paints Mr. Gregorio used?

“A. I would say prevalent was red. The next biggest customer was yellow. So he used that. We had blue, green, purple. We even had pink, white and orange. I think those are the colors he used.

“Q. Do you know if any other brands or
manufacturers’ spray paint was used at Instrument Specialties during the time
that you worked there?

“A. No. Because we used Rust-Oleum because it was used
for metal.”

At
the fourth session of Shearer’s deposition, the following colloquy occurred
between Rust-Oleum’s counsel and Shearer:

“Q. . . . Are you familiar with a
product called Industrial Choice Aerosol Topcoats?

“A. No, I am not.

“Q. Okay.
Now, can you turn to F. Just
going back to the Industrial Choice Aerosol Topcoat, you have no information
that Mr. Gregorio worked with or around that product; is that correct?

“A. That doesn’t sound familiar to me.

“Q. Now, can you turn to F-43?

“A. Okay.

“Q. You marked this product as a product you were
familiar with from Instrument Specialties; is that correct?

“A. Yeah, Rust-Oleum.

“Q. And you just marked this product because you
were familiar with the name Rust-Oleum, not because you were familiar with that
particular product; is that correct?

“A. I assumed it was paint.

“Q. So is that correct that you only marked this
because you’re familiar with Rust-Oleum; correct?

“A. Yes.

“Q. Not the product itself?

“A. Yes.

“Q. And so you have no information as to what
this product is; is that correct?

“A. That’s correct.

“Q. And you have no information that Mr. Gregorio
worked with or around this specific product; is that correct?

“A. That’s correct.”

The
document that was marked as exhibit F, which apparently had pictures of various
products on it, is not included in the appellate record. We therefore have no way of knowing whether
the picture to which Shearer referred in this excerpt is a picture of Industrial
Choice 1600, Industrial Choice Aerosol—Topcoats, or something else
entirely. Further, we have no way of
knowing whether Shearer ever had in front of him a picture of Industrial Choice
1600 or Industrial Choice Aerosol—Topcoats.
Although Shearer was shown a series of pictures of various products at
an earlier session of his deposition (the pictures were marked collectively as
exhibit D), the thumbnail pictures of what appear to be Rust-Oleum products are
not legible; we cannot determine which Rust‑Oleum products are featured
and which are not.href="#_ftn3" name="_ftnref3"
title="">[3]

Even
aside from the absence of exhibit F and the problems of illegibility, we do not
read Shearer’s deposition testimony, in context, as stating unequivocally that
Anthony was not exposed to either of the subject Rust-Oleum products. Shearer’s testimony, in context, supports
Anne’s contention that Anthony was exposed to Rust‑Oleum spray can paint
at Instrument Specialties.

Therefore,
we conclude that Anne raised a triable issue of material fact as to Anthony’s
exposure to either Industrial Choice 1600 or Industrial Choice Aerosol—Topcoats
while employed at Instrument Specialties.
The trial court erred in granting Rust‑Oleum’s motion for summary
judgment.



Disposition

The
judgment is reversed. Appellant to recover
costs on appeal.







FYBEL,
J.



WE CONCUR:







MOORE, ACTING P. J.







THOMPSON, J.