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Anderson v. Metalclad Insulation Corp.5/19/1999
must show either, (1) that one or more elements of the plaintiff's cause of action cannot be established, "or [(2)] that there is a complete defense to that cause of action." (§ 437c, subd. (o)(2), italics added.) The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is heavier than the burden to show one or more elements of the plaintiff's cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff's cause of action, or offering evidence, such as vague or insufficient discovery responses, that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case (see Certain Underwriter at Lloyd's of London v. Superior Court (1997) 56 Cal.App.4th 952, 958-959), "the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense" (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858, italics added; accord, Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830-831). The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 1543.) If the defendant does not meet this burden, the motion must be denied. Only if the defendant meets this burden, does the "the burden shift to plaintiff to show an issue of fact concerning at least one element of the defense." (Bacon v. Southern Cal. Edison Co., supra, at p. 858.)
Section 340.2 provides, in part:
"(a) In any civil action for injury or illness based upon exposure to asbestos, the time for the commencement of the action shall be the later of the following:
"(1) Within one year after the date the plaintiff first suffered disability.
"(2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure.
"(b) `Disability' as used in subdivision (a) means the loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation."
This special statute was enacted in recognition of the long period of time which may elapse before serious asbestos-related disease develops, and allows a plaintiff who knows of his or her asbestos-related illness to nevertheless delay bringing an action until disability from work occurs. (Darden v. General Motors Corp., supra, 40 Cal.App.4th at p. 354.)
Some courts have held, however, that if a plaintiff knows he or she has an asbestos related injury , and elects to file a personal injury lawsuit, the one-year period is triggered, even if plaintiff is not yet disabled. (Darden v. General Motors Corp., supra, 40 Cal.App.4th at p. 356; Barr v. ACandS, Inc., supra, 57 Cal.App.4th at pp. 1049-1053.)
Anderson does not dispute that he did not submit any evidence that he was not disabled more than one year before the complaint was filed. Although Anderson and the court refer to Anderson's interrogatory answer cited in plaintiff's separate statement, suggesting it was submitted to the court, it is not attached to his separate statement in the record on appeal. In any event, the court apparently concluded that the interrogatory answer was not admissible evidence when offered by the responding party in his favor. (§ 2030, subd. (n).)
Prior to the hearing upon the motion, it was, however, unnecessary for Anderson to present any evidence to create a triable issue of fact on the question whether, and when, he was disabled, because the legal theory of Metalclad's moti
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