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Gatton v. A.P. Green Services Inc.6/8/1998
CERTIFIED FOR PUBLICATION
Plaintiffs in this wrongful death action are the widow and heirs of decedent Jerald A. Gatton (Gatton), who died in April 1995 from mesothelioma caused by occupational exposure to asbestos. Plaintiffs sued various companies, including A.P. Green Services, Inc. (Green), an engineering and contracting firm known as Bigelow-Liptak Corporation (Bigelow-Liptak) until it ceased doing business in 1986. This is plaintiffs' appeal from a judgment in favor of Green after summary judgment. The key question presented is, was there a triable issue that Bigelow-Liptak caused Gatton's exposure to asbestos? We will agree with the trial court's "no" answer and, rejecting language in Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142, affirm without reaching other issues.
Background
The complaint alleges, as against Green, negligence, strict liability, enterprise liability and false representation, but there is no need to distinguish between the theories. The summary judgment motion placed at issue the common factual element of whether alleged asbestos exposure during Gatton's work beginning in 1980 at the Pinole Point Steel Company galvanizing plant (Pinole Point) in Richmond was caused by Green. The motion, noticed after discovery and 20 months after the complaint's filing, urged that there was no such connection.
In opposition to the motion, plaintiffs offered excerpts from two depositions. One was from Henry Woodrow, taken in 1986 as part of discovery in Woodrow's personal injury action against Johns-Manville Corporation and others. Plaintiffs here represented that Woodrow had worked for Bigelow-Liptak from 1963 to 1977, and their excerpt consisted of two pages in which he described work he had done at a "galvanizing plant" at Point Pinole. He said he could not recall the name of the plant, only that it was the subsidiary of a shipyard in San Francisco. He had done boiler work for some six days, " earing out and installing," and had handled "block insulation" and "wet and dry asbestos." He said "Yes" when asked if those materials were "manufactured by A.P. Green[.]" In its reply, Green objected to the deposition as hearsay inadmissible under Evidence Code section 1292 because Bigelow-Liptak had not been a party and because no party had an interest and motive similar to its own. Plaintiffs did not show Woodrow was unavailable; in fact, they conceded at the hearing that he was alive.
The other excerpt was from a deposition Gatton gave in late 1994, also not in this case but in an earlier action against his employer-an action which according to the pleadings produced a jury verdict in his favor and against Owens-Corning Fiberglas Corporation and American Honda Motor Company, Inc., just weeks before he died. Bigelow-Liptak had not been a party to that suit either, and so Green objected to the deposition as well, based on hearsay and lack of any party's similar interest and motive.
Gatton's deposition did not refer to Green or Bigelow-Liptak but recounted his work generally at Pinole Point from 1980 through 1990. He had begun as a laborer and worker at the 250,000-square-foot facility housing the galvanizing line, but he quickly moved on to qualifier, off-site project administrator and, finally, outside salesman before leaving the company. The plant had a galvanizing furnace five stories tall, an "open fire furnace" 50 feet high, and two boilers located in their own room adjacent to the production plant. During his eight months as a qualifier, Gatton would sometimes have to open the top or bottom of the galvanizing furnace in order to retrieve broken strips of the steel being fed through it. This stirred up dust and debri
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