David v. Slakey Brothers
Plaintiff and appellant Rebecca Lee David (Rebecca), individually and as successor-in-interest to James Lester David (James or decedent) (collectively, plaintiffs), appeals a judgment following a grant of summary judgment in favor of defendant and respondent Slakey Brothers, Inc. (Slakey).[1]
Plaintiffs contends the summary judgment must be reversed due to procedural and evidentiary errors, and in any event, the trial court erred in granting summary judgment due to the presence of triable issues of material fact.
By way of background, at the time of the summary judgment hearing, decedent lay dying of mesothelioma. We conclude the trial court abused its discretion in refusing to consider decedent’s opposing declaration on the ground it was unsigned, in that by the time of the hearing on the motion for summary judgment, the plaintiffs had submitted a signed copy of the opposing declaration. Further, decedent’s opposing declaration was sufficient to raise a triable issue of material fact as to whether decedent had been exposed to asbestos-containing products supplied by Slakey. Therefore, the judgment is reversed.
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