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Johnson v. Cahill Contractors4/25/2005
son in March 2001. Gilson stated in the deposition that: (1) he worked at the Tishman Building during its construction in 1971 for six to nine months and then returned to work there again after a year or two; (2) he believed Cahill was the general contractor during his first stint at the Tishman Building because his boss introduced him to the site superintendent who he understood to be a Cahill employee; and (3) he did not recall who the general contractor was during his second stint at the Tishman Building.
In its reply papers, Cahill objected to the Gilson testimony on two grounds. First, Cahill asserted that Johnson had deliberately failed to disclose Gilson as a material witness in pretrial discovery. Cahill maintained that this constituted a willful discovery abuse by Johnson that warranted exclusion of Gilson's testimony. Second, Cahill argued that Gilson's deposition testimony was inadmissible hearsay under Evidence Code section 1291, subdivision (a), in that there was no showing that Gilson was unavailable as a witness.
At the hearing on Cahill's motion, the trial court stated that it was sustaining Cahill's objection to the Gilson testimony on the ground that Gilson should have been disclosed as a witness. The trial court did not address Cahill's hearsay objection to the testimony and Cahill made no request for a ruling on that objection at the hearing. The trial court thereafter granted Cahill's motion for summary judgment, holding that Johnson had failed to provide any admissible evidence that he was exposed to asbestos through Cahill's conduct. The order granting summary judgment stated that Gilson "offered only unspecific and inadmissible testimony pertaining to [Cahill]."
Johnson timely appealed from the ensuing judgment.
II. DISCUSSION
On appeal, Johnson contends that Cahill failed to meet its initial burden of negating that it was the general contractor for the Tishman Building when Johnson worked there. Johnson maintains that he had no burden whatsoever to demonstrate a triable issue of material fact in response to Cahill's motion, and that he is therefore entitled to a reversal of the summary judgment entered against him irrespective of the admissibility or sufficiency of the Gilson evidence. Alternatively, assuming Cahill did in fact meet its initial burden of producing evidence, Johnson maintains that the trial court erred in finding the Gilson deposition transcript inadmissible. According to Johnson, Gilson's testimony should have been admitted and, if admitted, would have established the existence of a triable issue of material fact with respect to Cahill's liability for Johnson's injuries.
A. Standard and Scope of Review
In evaluating the correctness of a ruling granting summary judgment under Code of Civil Procedure section 437c, we review the record before the trial court de novo. Because such a ruling involves pure questions of law, we must independently reassess the legal significance and effect of the papers presented by the parties in connection with the motion. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513 (Saldana).)
In doing so, we engage in the same three-step analysis required of the trial court: " ` "First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond . . . . [ ] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor. . . . [ ] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable,
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