Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County, David L. Minning, Judge, Los Angeles County Super. Ct. No. BC323721
Waters & Kraus, Paul C. Cook and Michael B. Gurien for Plaintiff and Appellant.
Kazan, McClain, Abrams, Fernandez, Lyons, Farrise & Greenwood and Steven Kazan as Amicus Curiae on behalf of Plaintiff and Appellant.
Thelen Reid Brown Raysman & Steiner, Daven G. Lowhurst and Paul V. Lankford for Defendant and Respondent Ford Motor Company.
Jackson & Wallace, Gabriel A. Jackson, Todd M. Thacker and Christine A. Huntoon for Defendant and Respondent Merck & Co., Inc.
Shook, Hardy & Bacon and Kevin Underhill as Amici Curiae on behalf of Defendants and Respondents.
WOODS, J.
SUMMARY
Alleging she had been diagnosed with mesothelioma as a result of her exposure to asbestos, a California resident (since 1956) who had lived in New Jersey until 1951 filed a complaint for damages, asserting a premises liability cause of action against two defendants who owned properties in New Jersey where her father and brother worked with asbestos as employees of an independent contractor hired by the defendants. Among other things, the plaintiff had laundered her father’s and brother’s asbestos-covered work clothes in the family’s New Jersey home. The trial court granted summary judgment for one defendant (Ford Motor Company) on the ground that the New Jersey statute of repose barred the action and for the other defendant (Merck & Co., Inc.) on the ground that the defendant owed no duty to this plaintiff who had never been to the work site. Because summary judgment was not properly granted as to either defendant, we reverse and remand with directions.
FACTUAL AND PROCEDURAL SYNOPSIS
In her October 2004 complaint, Eileen Honer alleged (among other things) that for a period of many years, her father (Joseph Mara) and brother (Joseph Mara, Jr.) worked as insulators at job sites including the Merck facility in Rahway, New Jersey, and at the Lincoln-Mercury plant in Metuchen, New Jersey. As a result, they were exposed to asbestos-containing products which caused their clothing, bodies, vehicles and tools to be contaminated with great quantities of respirable asbestos fibers. Honer then breathed these asbestos fibers because of her direct and indirect contact with her father and brother themselves as well as their clothes, vehicles, tools and general surroundings. In July 2004, Honer alleged, she was diagnosed with mesothelioma caused by her exposure to asbestos-containing products.
According to Honer’s complaint, Merck and Ford (among others) caused the release of respirable asbestos fibers by their own workers as well as various contractors on Merck and Ford premises. At all times, these defendants knew or should have known of the danger and unreasonable risk of harm these conditions created for Honer and others similarly exposed. Further, at all times, these defendants also controlled the premises where Honer’s family members worked. Although Merck and Ford owed Honer a duty to exercise reasonable care in the management of their premises, they caused the release of dangerous quantities of toxic asbestos fibers into the ambient air by their own workers and various contractors.
These defendants’ negligent conduct included the failures to warn of, suppress, ventilate and remove asbestos and other toxic dusts, to provide adequate breathing protection, to inspect and test the air and to provide medical monitoring. They breached non-delegable duties to maintain safe premises, to provide safe workplaces and to warn of dangerous conditions. In addition, they breached multiple ordinances, statutes and other governmental regulations (including various provisions Honer listed in her complaint) in this regard.
According to evidence Merck presented in support of its motion for summary judgment, Honer was born and raised in New Jersey. Until she turned 18 and joined the Air Force in 1951, she assisted with household chores, including washing the clothes her father (Joseph Mara) and brother (Joseph Mara, Jr.) wore to work as insulators. They worked with asbestos-containing insulation “almost daily” and would come home covered in asbestos dust. Honer would shake the clothes out and the heavy asbestos dust would cause her to cough. It would also clog up the holes in the washing machine and would have to be cleaned out for the washing machine to drain.
Honer moved to California in 1956 and lived in California from that date forward.
Beginning in September 1945, for about a year, Honer’s brother and father worked at Merck’s chemical/pharmaceutical facility in Rahway, New Jersey. Working for Charles Wood, an insulation contractor, they reported directly to the Merck facility to insulate pipe work and equipment, including pumps and valves, and worked with asbestos-containing products.
Merck argued it was entitled to summary judgment on Honer’s premises liability cause of action because (1) a premises owner is not liable for the torts of a subcontractor or a subcontractor’s employees and (2) Merck owed Honer no duty of care as it did not supervise or control the requisite details of the insulation work and there was no evidence that Merck knew or should have known in 1945 that asbestos fibers might cling to a subcontractor’s employee’s clothes when he went home from work and cause injury to someone in his home.
Merck cited to evidence including the following: Honer never visited her father’s and brother’s job site. No one from Merck provided either of them with tools or materials. A Merck inspector came around to tell them what was going on and checked their work; Merck had them redo their work on at least one occasion. On several occasions, Honer’s father and brother worked alongside Merck’s insulators who were also working with asbestos-containing materials in the same general area. (Merck employed its own insulators.) It was Merck’s policy to keep their premises clean so the insulators swept their area daily.
Honer presented evidence including the declaration of Edwin Holstein, M.D., discussing what was known and knowable from the medical and industrial hygiene literature regarding the hazards of asbestos exposure at the time Honer’s family members worked at Merck. He discussed and referenced literature recommending segregation of work place exposure from the household, removing work clothes at the work place, providing lockers and changing and washing facilities, and otherwise minimizing the taking home of industrial toxins. For example, in the 1930s, E.R.A. Merewether and C.W. Price authored the Report on the Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry and specifically concluded that inhaling asbestos dust could cause fatal disease and that preventive measures should be undertaken to minimize risk, including “education of the individual to a sane appreciation of the risk.” By 1943, Holstein said, the literature was already documenting the risk of “take home” exposures to workplace toxins; the United States Public Health Service addressed the topic in a manual recommending employers provide and launder work clothes and provide adequate shower facilities and the opportunity to change clothes. Honer also presented evidence that Merck had advertised in multiple publications addressing this topic.
The trial court granted Merck’s motion for summary judgment “[b]ased upon the moving papers and the arguments of counsel . . . .”
As to the premises liability cause of action, Ford moved for summary judgment or adjudication on several grounds, including the ground that, if the court found that Ford exercised control over her father’s or brother’s work sufficient to create liability for negligent exercise of retained control over the work of employees of their contractors, the New Jersey statute of repose would bar her action. After taking the matter under submission, the trial court granted Ford’s motion on this ground.
Honer did not oppose Ford’s motion on the six other causes of action asserted in her complaint.
The order also stated: “Because the Court finds the Plaintiff’s claims are barred by the New Jersey statute of repose, it does not reach the merits of Ford’s arguments relating to whether or not such a duty was established by Plaintiff.”
Honer appeals.
DISCUSSION
I. The Trial Court Erred in Granting Summary Judgment as to Ford.
In arguing that the New Jersey statute of repose barred Honer’s cause of action,
Ford cited Giest v. Sequoia Ventures, Inc. (2000) 83 Cal.App.4th 300. As the Giest court stated, “Many states have adopted ‘borrowing statutes’ in order to prevent forum shopping by plaintiffs.” (Id. at p. 303.) Code of Civil Procedure section 361 provides: “When a cause of action has arisen in another state, or in a foreign country, and by the laws thereof an action thereon cannot be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state, and who has held the cause of action from the time it accrued.” (Italics added.)
New Jersey Statute 2A:14-1.1, applying to actions against owner-builders of real property improvements, provides as follows: “No action, whether in contract, in tort or otherwise, to recover damages for any deficiency in the design, planning, surveying, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall serve as a bar to all such actions, both governmental and private, but shall not apply to actions against any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.”
In Giest, supra, 83 Cal.App.4th at page 303, the plaintiffs attempted to argue that section 361 should only apply where plaintiffs have sued in a particular forum for the sole purpose of avoiding a limitation period which has lapsed in another state, but they had chosen California in order to obtain complete recovery because at least seven defendants were not amenable to service in the state of Montana. The Giest court rejected this attempt, stating: “By its terms section 361 applies whenever a cause of action arises in another state and would be stale in that state, unless the holder of the cause of action is a California citizen who has held the cause from the time of accrual.” (Ibid., initial italics in original, further italics added.) This exception was discussed no further in Giest as it apparently did not apply to the Giest plaintiffs, but it was expressly recognized nevertheless.
Here, however, Ford never disputed that Honer was a California resident (long) before she was diagnosed with mesothelioma and filed her complaint. Therefore, “[b]y its terms,” section 361 does not operate to bar Honer’s cause of action. Accordingly, its (and the trial court’s reliance) on Giest, supra, 83 Cal.App.4th 300, is misplaced. Application of the New Jersey statute of repose is the only argument Ford advances on appeal, and we find its further arguments raised in the trial court abandoned. As this was an unsound basis for summary adjudication, the trial court’s order and entry of judgment in this regard must be reversed.
According to Honer, she was exposed to asbestos from the Ford facility in the 1947-1948 timeframe. We note that Ford’s “person most knowledgeable” on industrial hygiene issues (Dr. Larry Roslinski) admitted, among other things, that in the 1930s, the Report on the Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry by E.R.A. Merewether and C.W. Price was widely known in the industrial community; Merewether and Price had specifically concluded that inhaling asbestos dust could cause fatal disease and that preventive measures should be undertaken to minimize risk, including “education of the individual to a sane appreciation of the risk.” According to Roslinski, Ford had memberships in various industrial hygiene organizations and established an industrial hygiene department in the 1930s. He further admitted members of this department “should have” been aware of materials known or knowable in the industrial hygiene community if they were “up to speed.”
Ford also argues that under choice of law principles, the government impairment test favors the application of New Jersey’s statute of repose. Even applying the government impairment test as urged by Ford, we still must find that summary judgment was improperly entered in this situation. While Ford argues New Jersey’s interest in regulating and protecting its own businesses is of prime consideration, we note that Code of Civil Procedure section 361 establishes the California legislature’s determination that protection of California residents is paramount in this context, and Honer, a resident since 1956, was plainly a California resident at the time her cause of action accrued.
II. Merck Was Not Entitled to Summary Judgment.
Code of Civil Procedure section 437c, subdivision (p)(2), provides: “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. . . .”
Honer’s complaint specifically alleged injury as a result of “household” exposure through her father’s and brother’s work at a Merck facility. Merck essentially ignored the nature of Honer’s allegations, citing instead to evidence that Honer herself did not visit the Merck facility. Merck argued that there was no evidence it knew or should have known that asbestos fibers brought home on Honer’s family members’ clothes posed any risk as of the relevant 1940s timeframe; significantly, however, it made no mention in its separate statement of any evidence in this regard while Honer presented the Holstein declaration and related evidence. Further, leaving to one side the fact that Honer was a third party and not an employee of an independent contractor hired by Merck, as to the issue of its control over the work performed by Honer’s brother and father, Merck’s own evidence was equivocal on this issue and also suggested an active role by Merck’s own employees in connection with the asbestos-related work. The parties have submitted supplemental briefing to address cases from other jurisdictions involving significantly different records. In this case, the only case before us, what it comes down to is this: on this record, Merck was not entitled to judgment as a matter of law. It follows that Merck’s summary judgment motion was improperly granted.
Merck filed a motion to strike Honer’s reply brief to the extent she has argued Merck’s failure to meet its burden on summary judgment. According to Merck, she has waived the issue. We disagree and deny this motion.
DISPOSITION
The orders granting summary judgment and judgments are reversed and this matter is remanded to the trial court with directions to enter new and different orders denying the motions for summary judgment and placing this matter back on the civil active list. Appellant shall recover her costs on appeal.
We concur: PERLUSS, P.J., JOHNSON, J.