Davis v. M.Slayen & Assocs
Filed 9/8/06 Davis v. M.Slayen & Assocs. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
SAM M. DAVIS, JR.,
Plaintiff and Appellant, A112305
v. (San Francisco Co.
Super. Ct. No. 416635)
M. SLAYEN & ASSOCIATES, INC.,
Defendant and Respondent.
______________________________________/
Appellant Sam M. Davis, Jr., filed a complaint against respondent M. Slayen & Associates, Inc., (M. Slayen) seeking damages for injuries he sustained as the result of his exposure to asbestos. M. Slayen filed a motion for summary judgment arguing it was entitled to prevail, as a matter of law, because appellant could not establish causation. The trial court agreed and granted the motion. Appellant now appeals. We will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant worked for many years as a seaman, first for the United States Navy and then for the Military Sealift Command.
In January 2003, appellant filed a personal injury complaint in the San Francisco Superior Court against M. Slayen and numerous others alleging they had exposed him to asbestos.
San Francisco has adopted special rules that govern asbestos litigation. (See generally Volkswagen of America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 698-699.) Those rules require a plaintiff who has filed an asbestos complaint to answer a series of standard interrogatories. In general, those interrogatories require a plaintiff to explain how and when he was exposed to asbestos. Appellant complied with San Francisco's rules and filed his responses to the standard interrogatories. Those responses failed to mention M. Slayen at all.
Noting this omission, M. Slayen filed a motion for summary judgment. It argued it was entitled to prevail, as a matter of law, because appellant's interrogatory responses failed to show appellant had worked with or around any asbestos-containing products which were manufactured, supplied, distributed or installed by M. Slayen. Thus there was no evidence it had exposed him to asbestos. M. Slayen buttressed its argument with an excerpt from appellant's deposition in which he stated he had never heard of the company.
Appellant opposed M. Slayen's motion arguing it had not satisfied its burden of proof. To the extent M. Slayen had satisfied its burden, appellant argued its motion should be denied because M. Slayen performed asbestos work on a Naval Destroyer, the U.S.S. Turner Joy, between 1974 and 1975, and appellant served on that same ship between 1979 and 1980. To bridge the five-year gap, appellant presented evidence from an industrial hygienist, Kenneth Cohen, who stated that asbestos fibers released during M. Slayen's work would have remained on the ship for an â€
