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Johnson v. Cahill Contractors4/25/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
The trial court entered summary judgment in favor of defendant Cahill Contractors, Inc. (Cahill) in this asbestos personal injury suit brought by plaintiff Victor Johnson. The trial court found that there was no triable issue of material fact with respect to whether Cahill was the general contractor on a construction project Johnson worked on in the early 1970's in which Johnson alleged that he was exposed to asbestos. Johnson contends the trial court erred by excluding, as a discovery sanction against him, the deposition testimony of a third party on this issue, taken in another case. Although we find that this ground for excluding the evidence was improper, and that Cahill waived its alternative hearsay objection to its admission, we affirm the judgment in favor of Cahill because the excluded testimony was insufficient to raise a triable issue of material fact.
I. BACKGROUND
On August 24, 2001, Johnson sued numerous defendants alleging injury due to exposure to asbestos over a 40-year career as a steamfitter. On September 5, 2002, Johnson filed an amendment to his complaint naming Cahill as a Doe defendant, and alleging that Cahill was liable for Johnson's exposure to asbestos in 1973 to 1974, while he worked on the Tishman Building construction project in San Francisco.
When his deposition was taken on August 1, 2002, Johnson could not recall whether the general contractor on the Tishman Building project was Cahill or another entity: "I don't recall if it was Cahill or Williams & Burrows. There were some high-rises going on at that time. It was working on different jobsites easy to get them confused. [ ] . . . [ ] I don't recall the exact name, no."
On October 31, 2002, Johnson responded to a special interrogatory propounded by Cahill asking him to specify the dates on and locations at which he claimed to have worked in close proximity either to Cahill employees or to products installed by Cahill employees. Johnson stated that in 1973 to 1974, while employed by Powers Regulator Company as a steamfitter, he was exposed to asbestos at the Tishman Building and the general contractor on the job was "either CAHILL or WILLIAMS & BURROWS, but plaintiff at this time does not specifically recall."
In supplemental responses provided on June 8, 2003 to Standard Asbestos Case Interrogatories seeking Johnson's entire work history on jobsites where he claimed exposure to asbestos, Johnson reiterated that he could not recall whether Cahill or Williams & Burrows was the general contractor on the Tishman Building site in the 1973-1974 period when Johnson worked there.
On April 17, 2003, the case was set for trial to commence on December 15, 2003. On August 28, 2003, Cahill served and filed a motion for summary judgment asserting that Johnson had failed to produce evidence in discovery implicating Cahill as being responsible for his exposure to asbestos while working at the Tishman Building in 1973 to 1974. This was the last date before trial on which the motion could be served in order to be timely heard. (See Code Civ. Proc., ยง 437c, subd. (a) [summary judgment motion must be served 75 days before hearing date and must be heard no later than 30 days before trial].)
In opposition to Cahill's motion, Johnson submitted deposition testimony given in another case by Henry Gil
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