Opinion
B301664
06-21-2021
MICHAEL BENAVIDEZ, Plaintiff and Appellant, v. FLUOR CORPORATION, Defendant and Respondent.
Brayton Purcell, Gilbert L. Purcell, Richard M. Grant and Gary L. Brayton for Plaintiff and Appellant. Berkes Crane Robinson & Seal, Steven M. Crane, Barbara S. Hodous and Carmen Santana for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC662028, Maurice A. Leiter, Judge. Reversed and remanded with directions.
Brayton Purcell, Gilbert L. Purcell, Richard M. Grant and Gary L. Brayton for Plaintiff and Appellant.
Berkes Crane Robinson & Seal, Steven M. Crane, Barbara S. Hodous and Carmen Santana for Defendant and Respondent.
McCORMICK, J.[*]
INTRODUCTION
Michael Benavidez appeals from the judgment entered after the trial court granted Fluor Corporation's summary judgment motion on the ground that Benavidez's evidence did not show a triable issue of material fact regarding his alleged exposure to asbestos attributable to Fluor. Benavidez argues the trial court erred in finding that Benavidez's deposition testimony did not demonstrate a triable issue of fact, and erred in overruling Benavidez's objections to a Fluor declaration. We agree Benavidez's deposition testimony creates triable issues of material fact regarding his exposure to Fluor-attributable asbestos. We accordingly reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. The Complaint
Benavidez sued Fluor and others for harm allegedly suffered as the result of exposure to asbestos over many years as a sheet metal worker. Benavidez alleges Fluor used asbestos-containing insulation, products, and other building materials at an Anheuser-Busch facility in Van Nuys, California in the 1970's, which released toxic substances into the air and caused Benavidez to develop an asbestos-related illness. The complaint alleges one negligence cause of action against Fluor.
B. Benavidez's Discovery Responses
Benavidez responded to a standard set of interrogatories propounded to all asbestos case plaintiffs. In his verified responses, Benavidez stated that when he worked for A & A Associates in the 1970's, he worked at the Anheuser-Busch Brewery in Van Nuys, California for “6 months on and off” and “in the cooling section where he removed asbestos pipe insulation” and “installed pipes and ovens.” Benavidez stated that he “worked in close proximity to pipefitters employed by Fluor Corporation and C. Norman Peterson (Dillingham Construction, N.A. Inc.) removing and replacing asbestos gaskets.”
In his responses to Fluor's special interrogatories seeking “each and every fact” supporting Benavidez's contention “Fluor is liable to you as alleged in your complaint, ” Benavidez again stated that while working for A & A Associates in the 1970's, he worked at the Anheuser-Busch Brewery in Van Nuys, California for “6 months on and off.” Benavidez stated that he “worked in close proximity to Fluor employees who were disturbing asbestos-containing products in his presence. [Benavidez] recognized the Fluor employees by their trucks.” He further responded: “Fluor pipefitters worked in close proximity to [Benavidez] at the above sites. These Fluor pipefitters removed and installed asbestos-containing gasket material on high-pressure, high-temperature systems. The Fluor pipefitters scraped off and removed existing asbestos-containing gasket material from valves, which released dust into the air. The removal of these gaskets by Fluor involved scraping old gaskets with scrapers and wire brushes, a process that created very dusty conditions. The Fluor pipefitters then cut and installed replacement asbestos-containing gasket material to install in these valves. Afterwards, Fluor laborers cleaned and swept up the resulting debris, which re-suspended the dust into the air that [Benavidez] inhaled as a consequence. The sweeping and cleaning up of asbestos-containing products by Fluor further re-suspended asbestos fibers into the air, which [Benavidez] inhaled without warnings, precautions, or respiratory protection, and which contributed to [Benavidez's] asbestos-related injuries and damages. [¶] All of this disturbance caused a significant amount of visible dust and fibers to be released into the air. The dust from the asbestos-containing products settled on everything in the surrounding area, including on the ground, tools, materials, and equipment. [¶] The disturbance of asbestos-containing products by Fluor employees caused asbestos fibers to be released into the ambient air, which [Benavidez] then inhaled, causing injuries to [Benavidez's] lungs and body, resulting in damage to [Benavidez]. [¶] [Benavidez's] medical experts will opine and testify at trial that [Benavidez's] exposure to asbestos due to defendant contributed to and was a substantial factor in the development of [Benavidez's] asbestos-related diseases, including asbestosis and pleural disease.”
The record does not contain a verification of Benavidez's responses to Fluor's special interrogatories. Benavidez stated in the trial court that he verified the responses. Fluor does not appear to dispute that Benavidez verified the responses and, moreover, Fluor submitted the responses in support of its summary judgment motion, and relied on them to argue that the trial court should grant summary judgment in Fluor's favor.
C. Benavidez's Deposition Testimony
Defendants deposed Benavidez in March and June 2018. Benavidez testified he worked on jobs at the Anheuser-Busch facility in Van Nuys on two separate occasions while employed by A & A Associates. Benavidez could not recall if he worked at the Anheuser-Busch facility in the 1970's or the 1980's; he testified “[i]t could have been both.”
Defendants deposed Benavidez over 12 days between March and October 2018. The March 2018 deposition was his second session and the June 2018 deposition was his seventh session.
At his March 2018 deposition, in response to a question asking him to identify “individuals that you might have seen present at the [Anheuser-Busch] facility even though they weren't on your crew” during his first job at the Anheuser-Busch site, Benavidez stated: “I saw Fluor. I saw Metalclad, if I remember right. There were electricians putting in electrical panels. I know Fluor Peterson.... There were some other companies there I do not recall.” Benavidez identified the trades present during his first job at the Anheuser-Busch facility as “electricians, welders, fitters, millwrights, plumbers. If I recall right, I think they were putting sprinkler systems in that area.” Regarding his first job at the site, Benavidez testified he “believe[d]” Fluor employed the electricians working on the job, and he “ha[d] no idea” who employed the pipefitters.
At his June 2018 deposition, Benavidez testified he could not recall whether he had previously testified Fluor employed the electricians at the Anheuser-Busch facility. Benavidez testified at the June 2018 deposition that Fluor was the pipefitting contractor at the Anheuser-Busch facility during his first job at the site.
During his first job at the Anheuser-Busch facility, Benavidez saw Fluor workers at the site “probably every day [he] was there” and “on a daily basis.” The Fluor workers “were installing pipes.... They were installing basically 8-inch black iron pipes.” Benavidez was sometimes “within 20 feet of” the Fluor workers as they installed pipes, and “at times... closer than that to them, ” as close as five feet. The last time Benavidez saw Fluor workers at the site was “the last day [he] worked at that facility.”
Benavidez recognized the Fluor workers by their “white helmets” and the “emblem on their hat[s].” The Fluor workers wore a “safety helmet with the word ‘Fluor' on the helmet, the front of it, ” and Benavidez “believe[d] it was also on the back.” “Fluor” was written on the helmets in black.
During his second job at the Anheuser-Busch facility, Benavidez saw Fluor workers “probably the first day [he] was there, ” but he was “not clear on that.” He did not recall the specific month or year he worked at the Anheuser-Busch facility the second time, but he “recall[ed] their [Fluor] helmets around [him] almost every day.”
During the second job, Benavidez saw Fluor employees “installing what appeared to be black iron pipe. [It] [c]ould have been cast iron pipes. [I] seen them cutting, welding.” Benavidez did not know where the pipes on which the Fluor employees were working went, and he did not know what ran through the pipes.
Benavidez knew Fluor employed the workers he saw during the second job because “Fluor had their toolboxes in the general area.” He knew they were Fluor toolboxes by “the name on the box”; the lettering was black, “maybe six inches, ” and spelled “Fluor.” Benavidez reiterated that he knew Fluor employees were working at the Anheuser-Busch site because he had “seen their helmets and [had] seen their toolboxes.” He also saw “superintendents with Fluor helmets on”; the superintendents had “blue helmets” and clipboards.
During the second job at the Anheuser-Busch facility, Benavidez worked “within 5 feet to 20” feet of Fluor workers. He testified he “could have been” within five feet of Fluor workers “numerous times during the day... probably ten times [during the day].... [He] was close most of the time to them.” Benavidez could not recall the names of any Fluor workers at the site.
Benavidez also saw Fluor trucks at the site “probably on a daily basis.” He saw Fluor trucks at the Anheuser-Busch facility “when I would get there in the mornings and then in the evenings when I would be leaving.” The truck doors had Fluor nameplates, with “Fluor” written in black block letters, “probably four-and-a-half inch lettering.”
Benavidez knew the Fluor workers used materials containing asbestos because he had “seen asbestos material with the colors... that [he] worked with in the past.” Fluor's counsel asked Benavidez if he had any other basis for believing “the materials that Fluor workers were working with contained asbestos”; Benavidez replied, “From being around materials that were on the job. I have seen it prior.”
D. The Summary Judgment Motion, the Opposition, and the Reply
Fluor moved for summary judgment on the basis that Benavidez “cannot establish liability against Fluor as a matter of law” because Benavidez “has no evidence to establish that he was exposed to asbestos for which Fluor is responsible.” Fluor argued summary judgment should be granted because “there is no evidence” Benavidez “was exposed to asbestos attributable to Fluor, nor can [Benavidez] obtain any evidence that he was ever exposed to any asbestos-containing products attributable to Fluor.”
In support of its motion, Fluor submitted Benavidez's responses to the standard set of interrogatories, his responses to Fluor's written discovery, and excerpts from Benavidez's March and June 2018 depositions. Fluor also submitted a declaration from Robert Lief, a Fluor employee since 1972 and Fluor's custodian of records. Lief stated that “all records stored by Fluor... are maintained pursuant to Fluor's document retention policy and are originals or copies of documents created at or near the time the events which are the subject of said documents occurred.” Lief directed a “thorough and extensive index search of all available company documents for records reflecting construction work performed by Fluor Corporation at Anheuser-Busch Brewery (Budweiser) in Van Nuys, California during the years from 1975 through 1977.” The search did not locate “any engineering, procurement, or construction work performed by Fluor” at the Anheuser-Busch site “at any point in time.”
Fluor's counsel told Benavidez at his June 2018 deposition that Fluor had no records of ever working at the Anheuser-Busch site, and asked Benavidez if it was “still [his] recollection that [he] saw Fluor workers there?” Benavidez responded, “Yes.”
Fluor argued Benavidez's discovery responses were “devoid of any ‘specific facts' to establish that he was exposed to asbestos for which Fluor is allegedly responsible.” Fluor asserted Benavidez's deposition testimony was “varied and inconsistent” because Benavidez testified in March 2018 that Fluor employed electricians, but testified in June 2018 that Fluor employed pipefitters. Fluor also argued Benavidez inconsistently testified he worked at the Anheuser-Busch facility in the 1980's, but stated in his discovery responses that he worked at the site in the 1970's; Benavidez could not identify the month or year in which he saw Fluor employees at the Anheuser-Busch facility during his second job at the site; and Benavidez could not identify any witnesses other than himself to support his cause of action against Fluor. Fluor further contended Benavidez “cannot reasonably ever” prove he was exposed to Fluor-attributable asbestos because Fluor “affirmatively established” through the Lief declaration that Fluor never worked at the Anheuser-Busch site.
Benavidez argued in opposition that his discovery responses and his deposition testimony created triable issues of material fact about his alleged exposure to asbestos by Fluor. Benavidez also objected to the Lief declaration.
Citing Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222 (Casey), Fluor argued in reply that Benavidez's allegedly factually deficient discovery responses shifted the summary judgment burden to Benavidez to show a triable issue of fact regarding his exposure to Fluor-attributable asbestos. Citing Davis v. Foster Wheeler Energy Corp. (2012) 205 Cal.App.4th 731 (Davis), Fluor argued the trial court should disregard all of Benavidez's deposition testimony, which Fluor contended was internally contradictory, and find that Benavidez could not demonstrate a triable issue of fact.
E. The Trial Court's Ruling
At the outset of the summary judgment motion hearing, the trial court stated its tentative decision to grant Fluor's motion because Fluor had “shift[ed] the burden by showing the plaintiff has no evidence establishing exposure by the plaintiff to... a product containing asbestos directly attributable to Fluor.” The court overruled Benavidez's objections to the Lief declaration.
After hearing argument and observing that Benavidez “relies very heavily on [his] deposition testimony, ” the court ruled “this [case] is analogous to the Davis case [Davis, supra, 205 Cal.App.4th 731] and the Casey case [Casey, supra, 206 Cal.App.4th 1222], ” and “[s]o I'm going to grant the motion for summary judgment.” The court's order states: “Defendant has shifted the burden. Plaintiffs [sic] fail to cite evidence showing that Plaintiff was exposed to asbestos from any products sold or distributed by Fluor. [¶] Plaintiff's objections to the Declaration of Robert Lief... are overruled.” The court entered judgment in Fluor's favor.
Benavidez timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
When asserting “a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant's defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause' of his injury, i.e., a substantial factor in bringing about the injury.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982-983; accord, Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 979 (Turley).) “In short, there are two elements to plaintiffs' claims: (1) ‘some threshold exposure,' and (2) ‘legal cause.'” (Turley, at p. 979.) “‘[I]f there has been no exposure, there is no causation.'” (Petitpas v. Ford Motor Co. (2017) 13 Cal.App.5th 261, 289; see Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 969; McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103 (McGonnell).)
Summary judgment is properly granted only when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) Where, as here, a defendant moves for summary judgment arguing the plaintiff cannot establish exposure, the defendant meets “its initial burden of production by making a prima facie showing that [the] plaintiff does not have, and cannot obtain, evidence necessary to show exposure” to the defendant's asbestos or asbestos-containing product. (Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 594 (Collin); see Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, 1116 [“[t]o meet its initial burden in moving for summary judgment, a defendant must present evidence that either ‘conclusively negate[s] an element of the plaintiff's cause of action' or ‘show[s] that the plaintiff does not possess, and cannot reasonably obtain,' evidence necessary to establish at least one element of the cause of action”].) If the defendant meets this burden, “the burden shift[s] to the plaintiff to establish a triable issue of material fact regarding exposure.” (Collin, at p. 589; see Henderson, at p. 1116 [“[o]nce the defendant satisfies its initial burden, ‘the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action'”].) “The quality of evidence of exposure must be sufficient ‘to allow the trier of fact to find... in favor of the party opposing the motion for summary judgment.'” (Casey, supra, 206 Cal.App.4th at p. 1237; see Collin, at p. 595; McGonnell, supra, 98 Cal.App.4th at p. 1105.) “At the very least, the plaintiff must provide ‘circumstantial evidence sufficient to support a reasonable inference' [citation] that the ‘defendant's asbestos products or activities were present at plaintiff's work site.'” (Casey, at p. 1237.)
All further statutory references are to the Code of Civil Procedure.
We review a trial court's ruling granting summary judgment de novo. (Samara v. Matar (2018) 5 Cal.5th 322, 338.) We consider “‘“‘“all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.”' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”'” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.) Similarly, ‘“any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.'” (Ghazarian v. Magellan Health, Inc. (2020) 53 Cal.App.5th 171, 182; see Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.)
B. Benavidez Demonstrated Triable Issues of Material Fact Regarding His Alleged Exposure to Fluor-attributable Asbestos
1. Casey and Davis
In Casey, supra, 206 Cal.App.4th 1222 a plumber-pipefitter and his spouse sued Perini Corporation and others alleging the plumber-pipefitter (Casey) developed mesothelioma from exposure to asbestos at several jobsites, including three managed by Perini. In response to an interrogatory asking the plaintiffs to identify “‘each fact'” supporting their contention Perini had exposed Casey to asbestos or asbestos-containing products, the plaintiffs stated Perini workers “‘disturb[ed]... asbestos-containing overspray on the ceiling and cause[d] it to fall down on everyone in proximity, '” and “‘Perini laborers would clean up and sweep up the asbestos-containing dust and debris in [Casey's] presence.'” (Id. at pp. 1229-1230, italics omitted.) The response further stated: “‘[Casey's] expert will testify that sweeping asbestos-containing plastering materials caused asbestos-containing dust to become airborne. [Casey's] expert will also testify that disturbing asbestos-containing overspray caused asbestos-containing dust to become airborne. As a direct result of defendant's conduct, [Casey] necessarily breathed in asbestos-containing dust.'” (Id. at p. 1230.)
The court found this interrogatory “answer was insufficient to support a claim” because “[i]t contains little more than general allegations against Perini and does not state specific facts showing that Casey was actually exposed to asbestos and/or asbestos-containing products due to Perini's activities.” (Casey, supra, 206 Cal.App.4th at p. 1230.) “Rather, this answer assumes, without any evidentiary support, that the dust and debris allegedly disturbed by Perini workers contained asbestos.” (Ibid.) By submitting the plaintiffs' “factually devoid” discovery responses, Perini shifted the burden to the plaintiffs to establish a triable issue of fact regarding causation, which the court held the plaintiffs did not do because their expert's declaration was speculative, and Casey's deposition testimony established only that “at some point Casey might have worked at jobsites where asbestos-containing products might have been used.” (Id. at p. 1239.)
Casey admitted “he did not know what materials contained asbestos and what materials did not.” (Casey, supra, 206 Cal.App.4th at p. 1229.) Further, “Casey's deposition made clear that he had no knowledge about whether any of the products that others used or disturbed in his presence contained asbestos. Specifically, he was unable to give a definitive answer when asked if he had any information or knowledge that he was exposed to asbestos through the activities or inaction of Perini. His answer was as follows: ‘Well, I got what I got. I got it someplace and I got it from dust.... So if it wasn't on this job, it was on one of the jobs. You know, was it in that dust, I'm not an expert.'” (Ibid.)
In Davis, supra, 205 Cal.App.4th 731 the plaintiffs sued Foster Wheeler Energy Corporation and others alleging their late husband and father (Davis) developed mesothelioma from exposure to asbestos and asbestos-containing products while working at a chemical plant. Foster Wheeler moved for summary judgment on the grounds it did not manufacture, sell, or distribute any asbestos-containing product, and Davis had not been exposed to asbestos from any Foster Wheeler product.
The plaintiffs argued Davis was exposed to asbestos dust when Foster Wheeler employees stripped asbestos-containing insulation from the outside of boilers during twice-a-year maintenance work. The plaintiffs submitted deposition testimony from one of Davis's coworkers, Claude Chabot, that Foster Wheeler contractors worked on three Foster Wheeler boilers. Chabot recognized the contractors as Foster Wheeler contractors from the “FW” on their hats, and he saw the contractors at the chemical plant twice a year, each time for two weeks. (Davis, supra, 205 Cal.App.4th at p. 734.) Chabot testified “he was sure that Foster Wheeler contractors were removing the insulation” from the boilers. (Id. at p. 735.)
Foster Wheeler submitted other deposition testimony from Chabot in which he said he had “‘no information or knowledge that [the] contractor [he] associated with Foster Wheeler either removed or installed any insulation on the exteriors of any furnaces or boilers'” at the plant. (Davis, supra, 205 Cal.App.4th at p. 735.) The trial court granted summary judgment for Foster Wheeler, concluding “‘no reasonable jury considering this opposing testimony [from Chabot] would conclude that the [Foster Wheeler] workers are the workers who removed the asbestos insulation around the Foster Wheeler boilers.'” (Ibid.)
On appeal the plaintiffs argued Chabot's testimony was ambiguous and created a triable issue of fact as to whether Foster Wheeler workers removed asbestos-containing insulation from the boilers. The plaintiffs asserted the jury should resolve any ambiguities in Chabot's testimony. The court held Chabot's “testimony is not ambiguous, but is contradictory, ” and Chabot's “internally contradictory testimony” did not create a triable issue of fact. (Davis, supra, 205 Cal.App.4th at p. 736.)
2. Benavidez's deposition testimony creates triable issues of material fact
The only issue Fluor raised in its summary judgment motion was Benavidez's alleged lack of exposure to Fluor-attributable asbestos. Fluor did not argue that any asbestos exposure that occurred did not contribute to Benavidez's disease, nor did Fluor submit an expert declaration purporting to establish a lack of legal causation. Our analysis is thus confined to whether Benavidez's evidence “establish[ed] some threshold exposure to asbestos-containing products attributable to” Fluor. (Casey, supra, 206 Cal.App.4th at p. 1236; see ibid. [“In the instant case... the issue of medical causation-the sufficiency of the exposure-is not presently before the court, as that issue was never raised in Perini's motion for summary judgment.”].)
The trial court found Benavidez's evidence “analogous to [that in] the Davis case and the Casey case, ” ruled that Fluor shifted the summary judgment burden to Benavidez, and concluded Benavidez “fail[ed] to cite evidence showing that [he] was exposed to asbestos from any products sold or distributed by Fluor.” From the trial court's brief comments and order, we infer that the trial court relied on Casey to find that Benavidez's discovery responses satisfied Fluor's initial burden of production, and applied Davis to conclude that Benavidez's deposition testimony did not create a triable issue of fact.
Benavidez testified at his March 2018 deposition that during his first job at the Anheuser-Busch facility, Fluor employed electricians working at the site. Benavidez said he had “no idea” who employed the pipefitters. He testified differently at his June 2018 deposition; he said that Fluor employed pipefitters during his first job at the Anheuser-Busch site. Citing Davis, Fluor argues the trial court properly discounted all of Benavidez's deposition testimony because Benavidez testified inconsistently about the job duties of the Fluor workers during his first job at the Anheuser-Busch site.
Davis does not support, much less require, disregarding Benavidez's deposition testimony. In Davis, Chabot testified Foster Wheeler contractors removed asbestos-containing insulation from three boilers. Chabot also said the opposite-that he had “‘no information or knowledge'” Foster Wheeler contractors removed insulation from any boilers. (Davis, supra, 205 Cal.App.4th at p. 735.) Chabot's testimony was the plaintiffs' only evidence supporting their central and necessary contention that Foster Wheeler exposed Davis to asbestos-containing insulation. Chabot's admission that he had “‘no information or knowledge'” supporting that claim rendered the plaintiffs unable to prove their causes of action, all of which required them to prove Foster Wheeler exposed Davis to asbestos.
Benavidez's inconsistent testimony about the job duties of the Fluor workers at the Anheuser-Busch facility during his first job at the site is not analogous to Chabot's testimony. Under either version of Benavidez's testimony, Fluor workers were present at the Anheuser-Busch facility when Benavidez worked there. While Benavidez's discrepant testimony about the Fluor jobs may affect his credibility as a witness, the testimony does not conclusively demonstrate he cannot prove an element of his negligence cause of action. Benavidez's inconsistent description of the Fluor jobs does not warrant disregarding all of his deposition testimony on summary judgment. (See Santillan v. Roman Catholic Bishop of Fresno (2008) 163 Cal.App.4th 4, 12 [“evidentiary doubts or ambiguities are ordinarily resolved in favor of the party opposing summary judgment”].)
Benavidez gave different testimony about the Fluor jobs at his second and seventh deposition sessions. This is not a case where a witness submitted a declaration in opposition to a summary judgment motion purporting to impeach the witness's prior deposition admission. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 [“‘[w]here... there is a clear and unequivocal admission by the plaintiff, himself, in his deposition'” and the plaintiff contradicts that admission in a subsequent declaration, “‘we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact'”].)
In addition, Benavidez's testimony about his second job at the Anheuser-Busch facility creates triable issues of fact regarding his exposure to Fluor-attributable asbestos during that job. Benavidez consistently testified Fluor pipefitters worked at the Anheuser-Busch facility during his second job at the site. While he did not recall the specific month or year he worked at the Anheuser-Busch facility the second time, Benavidez “recall[ed] their [Fluor] helmets around me almost every day.”
Fluor's contention that Benavidez's deposition testimony should be disregarded because Benavidez could not recall the specific month or year he worked at the Anheuser-Busch facility the second time is contrary to law. (See Turley, supra, 18 Cal.App.5th at p. 985 [“to establish exposure in an asbestos case a plaintiff has no obligation to prove a specific exposure to a specific product on a specific date or time”]; Collin, supra, 228 Cal.App.4th at p. 595 [“[p]laintiff must prove the fact, not the date, of exposure”].)
Benavidez testified that during the second job he saw Fluor employees working on and cutting pipes. He saw Fluor workers “installing what appeared to be black iron pipe. [It] [c]ould have been cast iron pipes. [I] seen them cutting, welding.” Benavidez knew Fluor employed the workers he saw during the second job because “Fluor had their toolboxes in the general area.” He knew they were Fluor toolboxes by “the name on the box, ” which spelled “Fluor.”
Benavidez testified that during his second job at the Anheuser-Busch facility, he worked in close proximity to Fluor workers on a regular basis. He worked “within 5 feet to 20” feet of Fluor workers, and he “could have been” within five feet of Fluor workers “numerous times during the day... probably ten times [during the day].” He “was close most of the time to them.”
Benavidez also testified that he knew the Fluor workers used materials containing asbestos because he recognized asbestos from his prior work experience. Benavidez had “seen asbestos material with the colors... that [he] worked with in the past.” (See Mullen v. Armstrong World Industries, Inc. (1988) 200 Cal.App.3d 250, 256 [“asbestos is a generic designation possessing a rainbow-like diversity”]; Curtis v. ABB Inc. (9th Cir. 2015) 622 Fed.Appx. 661, 662 [district court erred in granting summary judgment for defendant based on lack of exposure to asbestos where plaintiff testified “he could visually identify the Defendants' products, and the asbestos in their electrical components by their color and swirl designs”].) Benavidez reiterated that he knew “the materials... the Fluor workers were working with contained asbestos... [f]rom being around materials that were on the job. I have seen it prior.” In sum, Benavidez testified that he regularly worked near Fluor workers at the Anheuser-Busch facility whom Benavidez saw using materials he recognized as containing asbestos. That testimony creates triable issues of material fact regarding Benavidez's exposure to Fluor-attributable asbestos. (See Turley, supra, 18 Cal.App.5th at p. 985 [“[T]o establish exposure in an asbestos case... it is sufficient to establish ‘that defendant's product was definitely at [the plaintiff's] work site and that it was sufficiently prevalent to warrant an inference that plaintiff was exposed to it' during his work there.”].)
Benavidez also argues the trial court erred by overruling his objections to the Lief declaration submitted in support of Fluor's summary judgment motion. Even considering Lief's statements that a “search of available company documents” did not locate any documents showing Fluor employees worked at the Anheuser-Busch site, Benavidez's deposition testimony creates triable issues of fact regarding Fluor's presence at the Anheuser-Busch site. We thus need not address Benavidez's argument that the trial court should not have overruled his objections to the declaration.
DISPOSITION
The judgment in favor of Fluor is reversed. The superior court is directed to vacate its order granting Fluor's motion for summary judgment and to enter a new order denying the motion. Benavidez shall recover his costs on appeal.
We concur: SEGAL, Acting P. J., FEUER, J.
[*]Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.