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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
et has failed to show any basis for reversal of the order denying reconsideration.
D. Building 183
Aerojet contends the trial court erroneously inferred that chlorinated solvent TCE from a malfunctioning heat transfer system at Building 183 did not reach the ground. Aerojet says it offered deposition testimony that TCE was suddenly and accidentally released when vacuum chambers at Building 183 malfunctioned in the early 1960's, and that similar malfunctions occurred 10 to 15 times over a period of two to three years, despite efforts to repair the problem. Each time the system malfunctioned, it spewed several gallons of TCE onto the roof of the building. Aerojet says the liquid ran down the roof to the gutters, then down the downspout to the ground. Aerojet says a former employee, Albert Murphy, recalled the concrete runout at the foot of the downspout was wet from the TCE runoff, and the edge of the runout, which abutted the bare grass, was wet.
However, our review of the pages of the record cited by Aerojet shows that Mr. Murphy testified in deposition that "TCE evaporates pretty rapidly" and:
"THE WITNESS: aw a wet spot on concrete probably six inches wide, a couple of feet long maybe.
"BY MR. KELLY:
"Q: So your recollection is that it was on concrete as opposed to being on bare surface?
"A: At the end of the concrete was ground, dirt.
"Q: Did you see the liquid on the dirt as well?
"A: It was grass.
"Q: Did you see the liquid collect there?
"A: No."
Thus, the record does not support Aerojet's assertion that it produced evidence supporting an inference that the TCE reached the ground.
The trial court said Aerojet's witness "saw liquid which he believed contained TCE (based on its odor) on a concrete runout connected to the downspout. He did not, however, see any such liquid on the ground at the end of the runout. [Fn. providing citation to evidence omitted.] Aerojet has offered no evidence that would demonstrate that TCE actually spilled from the runout onto the ground, for example, by showing that the area at the end of the runout is, in fact, contaminated with TCE. Without any such evidence, Aerojet's contention that a sudden and accidental event occurred that discharged TCE into the environment is nothing more than speculation and cannot raise an issue of fact."
We conclude Aerojet's argument that the trial court made an erroneous inference regarding the TCE is without merit. Aerojet's evidence did not support an inference that TCE reached the ground. Moreover, while opposing evidence is liberally construed, evidence constituting mere speculation will not defeat summary judgment. Evidence regarding purported sudden and accidental releases of pollution "which do no more than offer conclusory assertions or speculation regarding any causal link between the purported releases and claimed damages, insufficient to defeat summary adjudication." (Travelers, supra, 63 Cal.App.4th at p. 1462.) "`An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.' (Evid. Code, ยง 600, subd. (b), emphasis added.) An inference is more than a surmise or a conjecture. [Citations.] An inference cannot be based on mere possibilities; it must be based on probabilities. [Citations.]" (Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 800.)
Aerojet suggests by way of comparison that if a homeowner hoses down his driveway, and the driveway is wet all the way to the end where the concrete touches the adjoining gras
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