Filed 8/4/21 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

BETH HARRIS et al., Plaintiffs and Appellants, A153106 v. THOMAS DEE ENGINEERING (Alameda County CO., INC., Super. Ct. No. RG14725868) Defendant and Respondent.

In this asbestos case, Beth Harris and her children (Plaintiffs) appeal the trial court’s grant of summary judgment in favor of defendant Thomas Dee Engineering Company (Thomas Dee). We conclude that the trial court erred in its evaluation of an expert declaration submitted by Plaintiffs in opposition to Thomas Dee’s motion and that there is a triable issue whether Thomas Dee’s refractory work on a United States Navy ship exposed decedent Michael Harris to asbestos. Accordingly, we reverse the grant of summary judgment.1

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III.

The present appeal was stayed between February 2019 and April 2021 during Thomas Dee’s Chapter 11 bankruptcy proceeding.

BACKGROUND2 Mr. Harris was diagnosed with mesothelioma in March 2014. Two months later, he and his wife Beth Harris filed a personal injury complaint against numerous defendants alleging causes of action for negligence, strict liability, and loss of consortium. Mr. Harris passed away in October 2014. In July 2015, Mrs. Harris and her children amended the complaint to assert wrongful death and survival claims.

In June 2017, Thomas Dee moved for summary judgment on the issue of exposure. The motion stated, “This motion for summary judgment is made . . . on the grounds that the undisputed evidence establishes that plaintiffs are unable to establish the essential element of causation in that plaintiffs are unable to establish that plaintiffs’ decedent was exposed to asbestos by an act or omission of [Thomas] Dee as alleged in the complaint. Because plaintiffs will be unable to establish any causal connection between plaintiffs’ injuries and [Thomas] Dee’s claimed operations as a boiler refractory contractor, plaintiffs’ claims fail as a matter of law.” Thomas Dee also moved for summary adjudication on strict liability and punitive damages issues.

Plaintiffs’ claims arise out of Mr. Harris’s alleged exposure to asbestos while he served in the U.S. Navy, specifically during repairs aboard the U.S.S. San Jose at the Triple A Machine Shop in San Francisco during Fall 1973. From August 1973 to May 1974, Mr. Harris worked on the U.S.S. San Jose as a hull maintenance technician. Mr. Harris’s duties included maintaining and repairing the ship’s fire system, which ran through the entire ship. In addition to his daily shift working as a hull technician, Mr. Harris was responsible for “ ‘standing watch ’ ” four hours about every other 2Portions of this background summary are taken from this court’s decision in Triple A Machine Shop. day. His watch duties required him to “ ‘patrol every part of the ship’ ” to check for leaks and fires, among other things.

Thomas Dee is a contractor that works with “refractory brick, mortar and castable cement situated on the inside of boilers.” Thomas Dee performed repairs on boilers aboard the U.S.S. San Jose during the Fall 1973 repair period. The first part of the job required Thomas Dee to “ ‘tear out’ ” the existing insulation and refractory material. Plaintiffs’ expert opined that the “approximately 200 feet of insulation block removed from the three boilers . . . more likely than not contained asbestos.”

During the Fall 1973 repairs, Mr. Harris witnessed non-Navy personnel performing work aboard the ship. Mr. Harris testified he worked in the boiler room and also saw other people working in the boiler room. He did not see anyone working on the boilers.

William Ewing, a certified industrial hygienist, was Plaintiffs’ expert witness regarding asbestos exposure. In his deposition, he was asked about Mr. Harris’s testimony that he did not see any boiler work performed on the U.S.S. San Jose. Mr. Ewing testified, “If he wasn’t present when the work was done, then I don’t think there’d be any issue regarding any exposure.”

Despite that testimony, in a declaration submitted by Plaintiffs in opposition to the summary judgment motion, Mr. Ewing opined that Mr. Harris “did not need to be present at the exact time that the insulation block was being removed, swept up, and/or installed by Thomas [Dee] workers to be exposed.”

Instead, the removal of the asbestos-containing refractory materials from the boilers would have exposed Mr. Harris to asbestos whenever he was in the boiler room because asbestos fibers can remain suspended for up to 80 hours before settling out of the air and because the fibers can be continuously re- suspended through a phenomenon known as “re-entrainment.” Mr. Ewing stated, “This cycle of re-suspension is well-documented and is generally accepted in the industrial hygiene field. . . . There is near universal agreement that asbestos fibers persist in the environment almost indefinitely and thus can represent a continuous potential source of exposure when present in buildings or other enclosed spaces.”

In moving for summary judgment, Thomas Dee argued that, because Mr. Harris testified he did not see anyone working on the boilers, and, because Plaintiffs’ expert testified Mr. Harris would not have been exposed to asbestos if he was not present when the work was being done, summary judgment should be granted. On reply, it argued Mr. Ewing’s declaration about the re-entrainment phenomenon had to be disregarded because it contradicted his deposition testimony and because an expert may not testify to opinions not disclosed during his or her deposition.

Following a hearing, the trial court granted Thomas Dee’s motion for summary judgment. The court’s order states: “Plaintiffs’ discovery responses do not specify any facts suggesting that they can produce admissible evidence that [Mr. Harris] was in the boiler room in which the ship’s boilers were located, and where [Thomas] Dee would have performed its refractory work, while employees of [Thomas] Dee were manipulating asbestos-containing refractory materials, or at any specific time shortly after such work when such fibers might still be subject to exposure.” With respect to Mr. Ewing’s declaration, the court stated that it “rejects plaintiffs’ attempt to create a factual issue by offering [their expert’s] ‘re-entrainment’ theory, disclosed in his declaration submitted in opposition to the instant motion. The declaration offers a new, previously not disclosed opinion that is contradicted by his deposition testimony.” The court did not address Thomas Dee’s

summary adjudication issues, which were rendered moot by the grant of summary judgment.

The trial court entered judgment in favor of Thomas Dee. The present appeal followed.

DISCUSSION Plaintiffs argue that the trial court erred in refusing to give weight to their expert’s declaration and that the declaration demonstrates there is a triable issue whether Thomas Dee’s activities exposed Mr. Harris to asbestos.

We agree.

I. Governing Law and Standard of Review Summary judgment is appropriate “if 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).)3 “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law…. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fns. omitted (Aguilar).) In ruling on the motion, the court must draw all reasonable inferences from the evidence in the light most favorable to the opposing party. (Id. at p. 843.)

“The defendant is not required conclusively to negate an element of the plaintiff’s cause of action. The defendant need only show the plaintiff cannot establish at least one element of the cause of action, such as by showing the

II. The Trial Court Erred In Declining to Give Any Weight to Mr. Ewing’s Declaration As noted previously, the trial court “reject[ed] plaintiffs’ attempt to create a factual issue by offering” Mr. Ewing’s declaration in opposition to Thomas Dee’s summary judgment motion, because the re-entrainment theory of exposure was not disclosed in the expert’s earlier deposition and because it was in conflict with his deposition testimony.4 The trial court erred.

We first reject Thomas Dee’s contention that the trial court properly disregarded5 Mr. Ewing’s declaration because the re-entrainment theory of exposure was not disclosed in his deposition. Thomas Dee relies on the decision in Jones v. Moore (2000) 80 Cal.App.4th 557, which states, “When an

The D’Amico court explained its reasoning as follows: “As the law recognizes in other contexts [citation] admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (D’Amico, supra, 11 Cal.3d at p. 22.)

Thomas Dee asserts, “D’Amico stands firmly for the proposition that a declaration offered to directly controvert the declarant’s deposition testimony is inadmissible.” We disagree. In D’Amico, the California Supreme Court did not hold that declarations contradicting discovery responses must be “excluded.” Rather, the court stated only that such declarations may be insufficient to create a triable issue of fact. The trial court’s order in the present case is consistent with this understanding of D’Amico. Thus, the order does not state that the declaration is inadmissible. Instead, the trial court declined to give the declaration any weight in its analysis of whether there is a triable issue of fact as to exposure.

Properly understood, D’Amico does not state a rule regarding the admissibility of evidence; instead, the case provides guidance in determining whether a declaration that contradicts prior discovery responses is sufficient to create a triable issue of fact.7 This is relevant to our standard of review: “The existence of a triable issue of fact is a legal question that we review de novo.” (Brome v. The Department of the California Highway Patrol (2020) 44 Cal.App.5th 786, 794; see also Saelzler, supra, 25 Cal.4th at p. 768.)

Accordingly, regardless of the appropriate standard of review of evidentiary rulings on summary judgment, we review de novo the trial court’s conclusion that, under D’Amico, Mr. Ewing’s declaration was insufficient to establish a triable issue of fact.8 To this limited extent we disagree with statements in prior published cases that may be read to suggest D’Amico states a rule regarding the admissibility of evidence. (See, e.g., Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 983 (Turley) [stating, “applying D’Amico properly, courts have held that the court may exclude the evidence where the declaration and the discovery responses are ‘contradictory and mutually exclusive’ ”]; Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 143-144 (Ahn) [referring to the trial court’s “evidentiary” ruling in “excluding the declaration”]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120 [“most of plaintiff’s declaration is inadmissible”].)

It is instructive to compare the present case with Jacobs v. Fire Ins.

Exchange (1995) 36 Cal.App.4th 1258, which did apply D’Amico to disregard an expert’s opinion that contradicted prior deposition testimony.11 That case

“Summary judgment is proper only if all the papers submitted on the motion show there are no genuine issues of material fact requiring a trial.” (Ahn, supra, 223 Cal.App.4th at pp. 145–146.) In the present case, Mr. Ewing’s declaration showed there was in fact a triable issue as to exposure under the re-entrainment theory, even if he neglected to mention that phenomenon during his deposition. Accordingly, unlike in Jacobs, the trial court was not presented with a declaration that flatly contradicted deposition testimony and provided no basis to conclude that the opinion expressed in the declaration was actually the valid one. D’Amico does not require a court to give no weight to a declaration “where there is a ‘reasonable explanation for the discrepancy’ or ‘countenance ignoring other credible evidence that contradicts or explains that party’s answers or otherwise demonstrates there are genuine issues of factual dispute.’ ” (Mackey, supra, 31 Cal.App.5th at p. 658; see also Ahn, at pp. 144–145 [“Courts have consistently refused to apply the present appeal, we assume D’Amico properly can be applied to give no weight to a declaration by a non-party in appropriate circumstances. the D’Amico rule . . . when [other] evidence adduced on the motion credibly explains or contradicts a party’s earlier admissions.”]; Mason, supra, 228 Cal.App.3d at pp. 545–546 [declining to “ignore” plaintiff’s declaration under D’Amico where “the trier of fact could reasonably conclude that the initial interrogatory response was . . . a simple mistake”].)

In the present case, it is for the ultimate factfinder to decide what weight to give Mr. Ewing’s testimony regarding the re-entrainment theory in light of his deposition testimony.12 But the trial court erred in refusing, under D’Amico, to give the declaration any weight.

III. The Ewing Declaration Creates a Triable Issue Whether Thomas Dee’s Work Exposed Mr. Harris to Asbestos “In the context of asbestos litigation, a plaintiff must demonstrate exposure to a defendant’s product and biological processes from the exposure which result in disease. . . . [T]he proper analysis is to ask whether the plaintiff has proven exposure to a defendant’s product, of whatever duration, so that exposure is a possible factor in causing the disease and then to evaluate whether the exposure was a substantial factor.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415–1416.) In the present case, Thomas Dee moved for summary judgment on the issue of exposure; accordingly, we do not address whether any exposure was a substantial factor in bringing about Mr. Harris’s mesothelioma. (See Johnson v. ArvinMeritor, Inc. (2017) 9 Cal.App.5th 234, 240 (Johnson).) Proof of exposure requires “circumstantial evidence . . . sufficient to support a reasonable inference of

Assuming without deciding that this evidence was sufficient to shift the burden to Plaintiffs (see Aguilar, supra, 25 Cal.4th at p. 850), the evidence presented in opposition to the motion creates a triable issue whether Thomas Dee exposed Mr. Harris to asbestos. First, Plaintiffs demonstrated there was a triable issue whether the refractory material removed by Thomas Dee contained asbestos. Specifically, Mr. Ewing’s declaration stated that a bid estimate sheet prepared by Thomas Dee for brickwork repairs to three boilers on the U.S.S. San Jose referred to the removal of “approximately 200 feet of insulation block.” And he opined that the “insulation block to be removed from the three boilers more likely than not contained asbestos.” Thomas Dee

13We disagree with Plaintiffs’ contention that the plaintiff in an asbestos case merely has to prove a possibility of exposure. Instead, as this court explained in Johnson, supra, 9 Cal.App.5th at p. 245, the plaintiff must prove a probability of exposure. points to deposition testimony in which Mr. Ewing admitted he was not sure whether the material contained asbestos, but that testimony is not inconsistent with his averment that it likely did contain asbestos, based on his “review[] [of] safety and industrial hygiene literature concerning the use of asbestos[-]containing insulation block at worksites such as shipyards, ships and industrial applications” and his review of interrogatory responses from “insulation block manufacturers.”

Next, as Thomas Dee apparently does not dispute, Plaintiffs presented evidence Mr. Harris worked in the boiler room in his capacity as a hull maintenance technician, in addition to being in the boiler room on watch.

Under the re-entrainment theory of exposure, that gives rise to a reasonable inference of exposure, even absent evidence that Mr. Harris was present when Thomas Dee was removing refractory material from the boilers. As explained in Mr. Ewing’s declaration, “There is near universal agreement that asbestos fibers persist in the environment almost indefinitely and thus can represent a continuous potential source of exposure when present in buildings or other enclosed spaces.”

Thomas Dee argues that Plaintiffs cannot prove exposure if there is no evidence that Mr. Harris was present when Thomas Dee was removing refractory material from the boilers. Thus, Thomas Dee contends, “the decedent’s testimony creates the inference that there was no boiler work ongoing when he was present. Importantly, [Plaintiffs’] certified industrial hygienist, William Ewing stated at deposition [that] if decedent was not present when work was performed, he would not have been exposed to asbestos.” However, because Mr. Ewing’s declaration regarding the re-

entrainment theory of exposure must be considered in determining whether there is a triable issue, Thomas Dee’s argument fails.14 Viewed in the light most favorable to Plaintiffs (Aguilar, supra, 25 Cal.4th at p. 843), the evidence supports a reasonable inference that Thomas Dee workers disturbed asbestos-containing materials as part of their repair work on the U.S.S. San Jose in Fall 1973, and that Mr. Harris was exposed to it due to re-entrainment of the asbestos fibers. It is, of course, for the jury to decide whether the evidence of exposure is sufficient to prevail at trial, but at summary judgment we must resolve “ ‘any evidentiary doubts or ambiguities in plaintiff’s favor.’ ” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100; see also Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [“ ‘Any doubts about the propriety of summary judgment . . . are generally resolved against granting the motion, because that allows the future development of the case and avoids errors.’ ”].)

DISPOSITION We reverse the order granting summary judgment in favor of Thomas Dee. Plaintiffs are entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

14Thomas Dee requests that this court also consider 21 other evidentiary objections it presented below that it asserts the trial court did not reach.

However, “[I]t is not appropriate to incorporate by reference, into a brief, points and authorities contained in trial court papers, even if such papers are made a part of the appellate record.” (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2; accord York v. City of Los Angeles (2019) 33 Cal.App.5th 1178, 1188, fn. 4.) Thomas Dee also moved below for summary adjudication on two issues, but the company has made no request of this court with respect to those issues on appeal.

_______________________ SIMONS, ACTING P.J.

We concur:

____________________________ BURNS, J.

____________________________ RODRIGUEZ, J.*

A153106

* Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Alameda County Superior Court, Case No. RG14725868 Trial Judge: The Honorable Brad Seligman The Arkin Law Firm, Sharon J. Arkin; Levin Simes LLP, William Levin and Timothy Pearce, for Plaintiffs and Appellants.

WFBM, LLP, Michael T. McCall, Margaret F. Mahaffey, and Anne C. Gritzer, for Defendant and Respondent.