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Johnson v. Cahill Contractors4/25/2005
son named Cahill as a defendant on September 5, 2002. Cahill brought its summary judgment motion nearly a year later, on the last possible date to do so before trial. In response to the motion, Johnson made no claim that he needed additional time for discovery or that his attempts to take discovery from Cahill had been frustrated. In fact, Johnson produced no evidence that he had propounded a single discovery request to Cahill, or to any third party, seeking evidence that Cahill was the general contractor during construction of the Tishman Building. Although Johnson maintains that Cahill was in the best position to establish or refute that point, he fails to explain why he could not have used the discovery process to obtain the same records and information that Cahill maintained on the subject.
On this record, the burden shifted to Johnson to produce evidence demonstrating a triable issue of material fact as to whether Cahill was the general contractor during the time period when he worked on the Tishman construction project.
C. Cahill's Objections to Johnson's Evidence
Johnson contends that: (1) the trial court improperly excluded the Gilson testimony on the ground that he had willfully failed to disclose Gilson as a witness on the Tishman Building worksite; and (2) Cahill waived its alternative hearsay objection to the Gilson deposition by failing to request a ruling on that objection at the hearing on its summary judgment motion. We agree with both contentions.
In opposition to Cahill's motion, Johnson sought to introduce a nine-page excerpt from the transcript of Henry Gilson's deposition. Gilson's deposition had been taken in March 2001 in Gilson's own asbestos personal injury case against multiple defendants, including Cahill. Cahill objected to admission of the Gilson transcript in part on the grounds that Johnson had willfully abused the discovery process by failing to identify Gilson as a potential witness against Cahill. The factual basis for this claim was as follows: (1) Mr. Gilson had been represented at the deposition by the Brayton Purcell law firm, the same firm that represents Johnson in this action; (2) in the discovery proceedings in this case, Johnson identified Gilson as someone he worked with at the Bank of America building from 1977 to 1978; and (3) during his deposition and in response to interrogatories, Johnson named other persons he worked with at the Tishman Building in 1973-1974, but he did not identify Gilson as such a person.
From these facts, Cahill asked the trial court to infer that Johnson and his attorneys knew Gilson was a material witness with regard to Johnson's claims against Cahill, yet willfully omitted to identify Gilson as a witness in discovery. Cahill asks this court to find that the trial court therefore acted within its discretion in excluding Gilson's deposition as a penalty for such alleged discovery abuse. In our view, the facts do not support an inference of willful discovery abuse, and the trial court should not have excluded the Gilson deposition on that basis.
The identical issue arose in a recent case decided by Division Two of this court, Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315 (Biles). Biles was also an asbestos personal injury case. (Id. at p. 1319.) The defendant moved for summary judgment and the plaintiff responded in part with a declaration by a co-worker. (Ibid.) The trial court excluded the co-worker's declaration on the ground that the co-worker had not been identified in answer to an earlier interrogatory seeking the names of persons who had knowledge of plaintiff's asbestos exposure on defendant's premises. (Ibid.) The appellate court reversed, finding that the
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