McGonnell v. Kaiser Gypsum Co., Inc. (2002)

Our plain-English summary of McGonnell v. Kaiser Gypsum Co., Inc. (California Court of Appeal, April 30, 2002).

James McGonnell sued over asbestos exposure in 1997. After he died in 1999, his wife and two daughters pursued survival, loss of consortium and wrongful death claims, alleging asbestos-related lung cancer. He worked as a plumber and pipefitter and, from 1975 to 1999, as an engineer at a San Francisco medical center, where he cut into walls and encountered insulation and fireproofing. In his deposition he said he had never heard of Kaiser Gypsum and did not know of working with its products. He recalled seeing Kaiser Cement bags but not where. The trial court granted summary judgment to Kaiser Gypsum and Kaiser Cement. The Court of Appeal affirmed. It held the deposition was enough to shift the burden to the family. Their invoices and discovery responses showed only that Kaiser joint compound or plastic cement might have been delivered to the hospital in the 1970s, which left speculation that he might have encountered asbestos-containing material. The expert's late declaration lacked explanation or basis, and the court found no error on the continuance request.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: California Court of Appeal, 1st Appellate District, 4th Division
• Decided: April 30, 2002
• Citation: 120 Cal.Rptr.2d 23
• Docket: No. A095447
• Stage: Appeal from summary judgment
• State: California

Outcome. The Court of Appeal affirmed summary judgment for Kaiser Gypsum and Kaiser Cement, holding the plaintiffs, the family of James McGonnell, had not shown a triable issue that he was exposed to the defendants' asbestos-containing products.

What the court held. A defendant can shift the burden on summary judgment by showing through the plaintiff's deposition that he had no knowledge of exposure to its products, and the plaintiff must then produce non-speculative evidence of exposure to the defendant's asbestos-containing product; mere possibility and a conclusory expert opinion are not enough.

Issues decided: Causation, Wrongful Death and Survival, Expert Testimony, Trial Procedure and Discovery, Product Identification.

Why this case is relevant

The Court of Appeal affirmed summary judgment for Kaiser Gypsum and Kaiser Cement in a wrongful death case over asbestos-related lung cancer. It held that the worker's own deposition was enough to shift the burden to his family: he had never heard of Kaiser Gypsum and could not place any Kaiser product at his workplace. Invoices suggesting Kaiser products might have reached the hospital left only speculation. An expert declaration without basis or reasoning could not create a triable issue. In stating that exposure is a threshold issue on which the plaintiff bears the burden, the court relied on earlier decisions.

Later California Court of Appeal decisions frequently quote its line that if there has been no exposure, there is no causation, along with its statement of the plaintiff's burden. Others cite it for the routine summary judgment standard of review, for the point that mere possibility of exposure is not enough, and for rejecting baseless expert opinions. The Ninth Circuit and the Massachusetts Appeals Court cited it on speculative or conjectural exposure evidence. At least one later California court found it did not support summary judgment where testimony created triable issues of exposure.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• James McGonnell: lung cancer; died

Who	Work	Where	When	Products
James McGonnell	plumber/engineer/assistant chief engineer	California Pacific Medical Center (formerly Presbyterian Hospital), San Francisco, California	1975-1999	joint compound, insulating cement, Kaiser Gypsum joint compound, Kaiser Cement plastic cement

The defendants

• Kaiser Gypsum Company, Inc. (manufacturer)
• Kaiser Cement Corporation (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Rutherford v. Owens-Illinois, Inc. (California Supreme Court, 1997). The California Supreme Court reversed the Court of Appeal's judgment, which had ordered a new trial for Owens-Illinois. It held that the burden-shifting instruction was error but harmless, and that the tobacco company defense issue was controlled by Richards, so the plaintiffs' judgment against Owens-Illinois was not overturned.
• Lineaweaver v. Plant Insulation Co. (California Court of Appeal, 1st Appellate District, 1st Division, 1995). The Court of Appeal reversed the nonsuit for Plant Insulation as to Lineaweaver and remanded for retrial, but affirmed the nonsuit against King and Ward for insufficient evidence of exposure to Plant-supplied Pabco.
• Dumin v. Owens-Corning Fiberglas Corp. (California Court of Appeal, 1st Appellate District, 1st Division, 1994). The Court of Appeal affirmed the judgment for Owens-Corning Fiberglas, holding that the trial court correctly directed a verdict against Dumin on exposure to OCF Kaylo aboard the Pocono because the evidence was insufficient.

Later decisions citing this one

49 later decisions in our library cite this one. The 30 from the highest courts, newest first:

• Viale v. Foster Wheeler, LLC (U.S. Court of Appeals, Ninth Circuit, 2021). The Ninth Circuit affirmed summary judgment for Foster Wheeler and Exxon Mobil, rejecting the claims of Debbie Viale and Amber Jacobs for lack of evidence of exposure to Foster Wheeler products or Exxon-caused exposure.
• Ochoa v. Spx Cooling Technologies, Inc. (California Court of Appeal, 1st Appellate District, 1st Division, 2023). The Court of Appeal affirmed summary judgment for cooling tower makers BAC and SPX (Marley's successor) and against plaintiffs Jo Ann Ochoa and Arianna Huerta, finding no triable issue that Ochoa was exposed to asbestos from their towers.
• Benavidez v. Fluor Corp. (California Court of Appeal, 2nd Appellate District, 7th Division, 2021). The Court of Appeal reversed the summary judgment for Fluor Corporation and directed the trial court to deny Fluor's motion, so plaintiff Michael Benavidez won.
• Morgan v. JM Manufacturing Co., Inc. (California Court of Appeal, 2nd Appellate District, 1st Division, 2021). The Court of Appeal affirmed the compensatory judgment for the Morgans against J-M Manufacturing but reversed the $15,000,000 punitive damages award for lack of evidence about officers, directors or managing agents.
• Webb v. General Cable Corp. (California Court of Appeal, 1st Appellate District, 1st Division, 2021). The Court of Appeal reversed the jury verdict for plaintiffs Amos and Jeannie Webb against General Cable and directed the trial court to enter judgment for General Cable, because the evidence did not show Webb was exposed to asbestos in General Cable's products.
• Barr v. Parker-Hannifin Corp. (California Court of Appeal, 1st Appellate District, 3rd Division, 2020). The Court of Appeal affirmed the judgment for Barr's successor against Parker-Hannifin and Standard Motor Products, rejecting Standard's evidentiary challenges and Parker's challenges to the punitive damages award.
• Booker v. Imerys Talc America, Inc. (California Court of Appeal, 1st Appellate District, 3rd Division, 2020). The Court of Appeal affirmed the judgment for the Booker plaintiffs against Imerys Talc America, rejecting Imerys's challenges to the exposure evidence, the special verdict form and the finding that it had assumed Cyprus's pre-1992 liabilities.
• Collantes v. Elementis Chemicals, Inc. (California Court of Appeal, 2nd Appellate District, 7th Division, 2020). The Court of Appeal reversed the summary judgments for Union Carbide and Elementis, holding they had not shown that Collantes lacked sufficient evidence of exposure, and directed the trial court to deny their motions.
• Gibbons v. Johnson & Johnson Consumer (Laosd Asbestos Cases) (California Court of Appeal, 2nd District, Division 4, 2020). The Court of Appeal affirmed summary judgment for Johnson & Johnson Consumer Inc. against Ann Patrice Gibbons and James Randall Gibbons, holding they had not raised a triable issue that her talc products contained asbestos.
• Berg v. Colgate-Palmolive Company (California Court of Appeal, 1st Appellate District, 1st Division, 2019). The Court of Appeal affirmed summary judgment for Colgate-Palmolive, holding that Berg and his wife failed to show a triable issue on whether the Mennen shave talc he used contained asbestos.
• Friedman v. American Biltrite (In re Laosd Asbestos Cases) (California Court of Appeal, 2nd Appellate District, 4th Division, 2019). The Court of Appeal reversed the judgment entered for American Biltrite after a directed verdict, holding plaintiffs Robert and Carole Friedman presented sufficient exposure and causation evidence, and remanded for further proceedings.
• Trapp v. CertainTEED Corporation (California Court of Appeal, 6th Appellate District, 2018). The Court of Appeal reversed the summary judgments for CertainTeed and Calaveras on the negligence, premises liability and strict liability claims, but held both defendants entitled to summary adjudication on the warranty and retained-control claims, which the Trapp family had abandoned.
• Wittman v. Coty, Inc. (California Court of Appeal, 2nd Appellate District, 4th Division, 2018). The Court of Appeal affirmed summary judgment for Coty, Inc. against John and Barbara Wittman because they lacked evidence that Barbara was exposed to asbestos in Coty's face powder, and their expert's declaration was properly excluded for lack of chain of custody.
• Johnson v. ArvinMeritor, Inc. (California Court of Appeal, 1st Appellate District, 5th Division, 2017). The Court of Appeal affirmed summary judgment for ArvinMeritor, Maremont and Carlisle, so Johnson lost his claims against them.
• Johnson v. Dock (California Court of Appeal, 1st Appellate District, 1st Division, 2017). The Court of Appeal affirmed summary judgment for Moore Dry Dock, finding plaintiffs Richard and Marcella Johnson had no admissible evidence that Johnson was exposed to asbestos from the defendant's products.
• Lyons v. Colgate-Palmolive Co. (California Court of Appeal, 1st Appellate District, 3rd Division, 2017). The Court of Appeal reversed the summary judgment for Colgate-Palmolive, finding that plaintiff Mary Lyons raised a triable issue on whether Cashmere Bouquet talc contained asbestos.
• Petitpas v. Ford Motor Company (California Court of Appeal, 2nd Appellate District, 4th Division, 2017). The Court of Appeal affirmed the judgment for Exxon Mobil, Ford and Rossmoor, rejecting plaintiffs' challenges to the summary adjudication for Exxon, the nonsuit for Rossmoor, the jury instructions on Ford, and the defense verdict for Exxon.
• Sandoval v. American Appliance Manufacturing Corp. (California Court of Appeal, 2nd Appellate District, 4th Division, 2017). The Court of Appeal reversed summary judgment and summary adjudication for AAMC on the Sandovals' negligence, strict liability, loss of consortium and punitive damages claims, affirmed as to the premises liability and warranty claims they had dismissed, and remanded.
• Turley v. Familian Corporation (California Court of Appeal, 1st Appellate District, 2nd Division, 2017). The Court of Appeal reversed the summary judgment for Familian Corporation and sent the case back, so the Turleys won the appeal and recovered their costs.
• Lepore v. Kelsey-Hayes Co. (California Court of Appeal, 1st Appellate District, 4th Division, 2016). The Court of Appeal reversed summary judgment for Ford, Navistar and Kelsey-Hayes, finding triable issues on whether Lepore was exposed to asbestos from their products, and affirmed summary judgment for Gibbs International.
• Untermann v. D. Zelinsky & Sons, Inc. (California Court of Appeal, 1st Appellate District, 4th Division, 2016). The Court of Appeal affirmed summary judgment for painting contractor D. Zelinsky & Sons, Inc., against plaintiff Desin (succeeded on appeal by his daughter Cheryl Untermann).
• Leidig v. Zenith Electronics LLC (California Court of Appeal, 2nd Appellate District, 4th Division, 2015). The Court of Appeal affirmed summary judgment for Zenith Electronics LLC and against the Leidig family, finding no triable issue that the decedent was exposed to asbestos from a Zenith product.
• Murat v. Exxon Mobil Corp. (California Court of Appeal, 2nd Appellate District, 4th Division, 2015). The Court of Appeal affirmed summary judgment for Exxon Mobil Corp. and SeaRiver Maritime, Inc., finding no triable issue that they breached a duty of care to Mr. Murat, and the daughters lost.
• Shiffer v. CBS Corporation (California Court of Appeal, 1st Appellate District, 1st Division, 2015). The Court of Appeal affirmed summary judgment for CBS Corporation (successor to Westinghouse) against plaintiffs James Shiffer and his wife, and upheld denial of their motions for reconsideration and a new trial.
• Ganoe v. Metalclad Insulation Corporation (California Court of Appeal, 2nd Appellate District, 3rd Division, 2014). The Court of Appeal reversed the summary judgment granted to Metalclad Insulation Corporation, ruling that Metalclad had not met its initial burden and that the plaintiffs had raised triable issues of fact, and awarded costs to the plaintiffs.
• Izell v. Union Carbide Corp. (California Court of Appeal, 2nd Appellate District, 3rd Division, 2014). The Court of Appeal affirmed the judgment for Bobbie and Helen Izell against Union Carbide, upholding the jury's liability and comparative-fault findings, the compensatory award as reduced to $6 million, and the $18 million punitive award.
• Izell v. Union Carbide Corporation (California Court of Appeal, 2nd Appellate District, 3rd Division, 2014). The Court of Appeal affirmed the judgment for Bobbie and Helen Izell against Union Carbide, upholding the liability finding, the fault allocation, the remitted $6 million compensatory award and the $18 million punitive award.
• Izell v. Union Carbide Corporation (California Court of Appeal, 2nd Appellate District, 3rd Division, 2014). The Court of Appeal affirmed the judgment for Bobbie and Helen Izell against Union Carbide, including the remitted $6 million compensatory award and the $18 million punitive award; one justice dissented in part on the punitive award.
• Lee v. Clark Reliance Corporation (California Court of Appeal, 2nd Appellate District, 3rd Division, 2013). The Court of Appeal affirmed summary judgment for Clark Reliance Corporation (successor to Jerguson Gage & Valve), rejecting plaintiff Mary Lee's appeal.
• Casey v. Perini Corporation (California Court of Appeal, 1st Appellate District, 4th Division, 2012). The Court of Appeal affirmed summary judgment for general contractor Perini Corporation against plaintiffs Patricia and John Casey, holding the trial court properly excluded plaintiffs' expert declaration and that plaintiffs offered only speculation about exposure.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

120 Cal.Rptr.2d 23 (2002)

98 Cal.App.4th 1098

Jane McGONNELL, Individually and as Successor in Interest, etc., etal., Plaintiffs and Appellants,

v.

KAISER GYPSUM COMPANY, INC., etal., Defendants and Respondents.

No. A095447.

April 30, 2002.

Court of Appeal, First District, Division Four.

[*25] Brayton & Purcell, Alan R. Brayton, Gilbert L. Purcell, Novato, Diane L. Abraham, for plaintiffs and appellants. Jackson & Wallace LLP, John R. Wallace, James R. Colgan, Gabriel Jackson, San Francisco, for defendants and respondents.

[*24] REARDON, Acting P.J.

The decedent in this wrongful death action allegedly died of asbestos-related lung cancer. Testimony taken before his death showed decedent had no knowledge of exposure to products manufactured by defendants Kaiser Gypsum Company, Inc., (Kaiser Gypsum) and Kaiser Cement Corporation (Kaiser Cement). The trial court found no triable issue of fact regarding decedent's exposure to defendants' products, and no evidence decedent had been exposed to asbestos-containing products manufactured by defendants. The court granted summary judgment in favor of both Kaiser Gypsum and Kaiser Cement.

Plaintiffs contend defendants failed to make a prima facie showing of the nonexistence of any triable fact. Alternatively, plaintiffs contend they produced substantial evidence showing triable issues of material fact. We disagree on both counts and affirm the judgment.

BACKGROUND

James McGonnell (McGonnell) filed a complaint for personal injuries resulting from asbestos exposure in 1997. (Super.Ct. S.F. City and County, No. 989625.) Following his death in 1999, plaintiffs, his wife and two daughters, filed an amended complaint for survival, loss of consortium, and wrongful death. (Super.Ct. No. 996639.) They alleged McGonnell had been exposed to asbestos-containing products at various locations over many years, which caused severe injuries including lung cancer. The exposure occurred as McGonnell performed his duties as a plumber and pipefitter. The complaint listed his last job as plumber/engineer/assistant chief engineer at California Pacific Medical Center (California Pacific) in San Francisco, from 1975 to 1999. The complaint named numerous defendants, including Kaiser Gypsum and Kaiser Cement. McGonnell was deposed before his death. He testified that he worked in every single building at the California Pacific medical complex (formerly known as Presbyterian Hospital). Generally, his duties consisted of maintenance and repair of the plumbing in the various buildings. During the course of his duties he would regularly cut through or cut out walls to perform work behind the walls, where he would encounter insulation and fireproofing materials.

McGonnell testified that he had never heard of a company called Kaiser Gypsum. As far as he knew, he had never worked with Kaiser Gypsum products, or near others using Kaiser Gypsum products. He had heard of Kaiser Cement Company and seen bags of cement with that name on it, but he could not recall where he had seen the bags.

Based on this information from McGonnell's deposition, Kaiser Gypsum and Kaiser Cement moved for summary judgment. [*26] They asserted there was no evidence McGonnell had had any contact with their products, and, therefore, no evidence their products caused his injuries.

In response, plaintiffs offered invoices that showed products manufactured by Kaiser Gypsum might have been delivered to California Medical Center in the 1970's and possibly used in building additions or renovations. They also produced

discovery responses from Kaiser Gypsum that showed its principal business was manufacturing and marketing gypsum plaster, gypsum lath, and gypsum wallboard. According to the discovery responses, none of these products contained asbestos. Kaiser Gypsum, however, also manufactured various compounds for installing and finishing wallboard that did contain asbestos. Kaiser Gypsum ceased to use asbestos in these products in the early to mid-1970's.

Plaintiffs also offered discovery responses from Kaiser Cement that showed its principal business was the manufacture and sale of portland cement. Portland cement does not contain asbestos. Kaiser Cement did make two products that contained asbestos—"plastic cement" and "masonry cement." Kaiser Cement ceased using asbestos in the manufacture of plastic cement in Northern California in 1973, and in Southern California in 1976. Plaintiffs offered evidence that plastic cement might have been used in construction at California Pacific in the late 1970's.

Finally, plaintiffs presented declarations from an expert who opined that McGonnell had been exposed to asbestos while performing his duties at California Pacific, and that asbestos-containing products from Kaiser "were used in the construction" of California Pacific during the 1970's.

The trial court found no triable issue of fact regarding McGonnell's exposure to asbestos-containing products from Kaiser Gypsum or Kaiser Cement. The court granted the motion for summary judgment and entered judgment against plaintiffs. Plaintiffs appeal.

DISCUSSION

A. Standard of Review

On an appeal from an order granting summary judgment, we independently examine the record to determine whether there are any triable issues of material fact. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) In performing our review, we view the evidence in the light most favorable to plaintiffs as the losing parties, resolving any evidentiary doubts or ambiguities in their favor. (Id. at p. 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) A defendant moving for summary judgment has met his or her burden of showing a cause of action has no merit if the defendant can showo one or more elements of the plaintiffs cause of action cannot be established. (Code Civ. Proc, § 437c, subd. (o )(2).) In such a case, the defendant bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar).) If the defendant carries the burden of production, the burden shifts to the plaintiff to make his or her own prima facie showing of the existence of a triable issue of fact. (Ibid.) "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. [Fn. omitted.]" (Ibid.)

B. Form of Summary Judgment Motion

Plaintiffs initially argue the motion for summary judgment was procedurally [*27] defective in that it was jointly brought by Kaiser Gypsum and Kaiser Cement. But plaintiffs did not object on this ground below, they have not shown any prejudice from the joint motion, and they have not cited any authority holding that defendants represented by the same counsel and relying on the same evidence and arguments cannot bring a joint motion for summary judgment. Plaintiffs have waived any objection to the content or form of the summary judgment motion. (See Haskell v. Carli (1987) 195 Cal. App.3d 124, 129, 240 Cal.Rptr. 439.)

C. Shift of Burden to Plaintiffs

A threshold issue in asbestos litigation is exposure to the defendant's product. The plaintiff bears the burden of proof on this issue. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 975-976, 67 Cal.Rptr.2d 16, 941 P.2d 1203; Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415-1416, 37 Cal.Rptr.2d 902.) If there has been no exposure, there is no causation. (Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655, 33 Cal.Rptr.2d 702.) Plaintiffs may prove causation in an asbestos case by demonstrating that the plaintiffs or decedent's exposure to defendant's asbestos-

containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer. (Rutherford, supra, at pp. 976-977, 67 Cal. Rptr.2d 16, 941 P.2d 1203.)

The McGonnell deposition excerpt supporting defendants' summary judgment motion showed McGonnell had no knowledge of any exposure to Kaiser products, let alone any Kaiser products that contained asbestos.[1] Plaintiffs argue this evidence was insufficient to shift the burden to them to demonstrate the existence of triable issues of fact. Plaintiffs believe defendants simply argued there was a lack of evidence of exposure without making the required prima facie evidentiary showing.

McGonnell's deposition excerpt is precisely the type of evidence specified by the Code of Civil Procedure (§ 437c, subd. (b)) and our Supreme Court (Aguilar, supra, 25 Cal.4th at p. 855, 107 Cal.Rptr.2d 841, 24 P.3d 493) as proper evidence to support a summary judgment motion. That evidence showed plaintiffs could not establish an element of their case— causation.

McGonnell was one of the best persons, if not the best person, to identify the various products and substances to which he had been exposed during his employment. At his deposition he was able to identify the kinds of materials he worked with, and the brand names of some of the products he had used. He even remembered working with Sheetrock and joint compounds from U.S. Gypsum. His failure to place any Kaiser products at his place of employment shifted the burden to plaintiffs to produce some circumstantial evidence to establish exposure to Kaiser products.

Plaintiffs suggest that we follow Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 81 Cal.Rptr.2d 360, an asbestos exposure case in which summary judgment was reversed on appeal. In Scheiding, a general contractor defendant supported its summary judgment motion with a declaration from counsel stating that the plaintiff did not mention the defendant in discovery. (Id. at p. 67, 81 [*28] Cal.Rptr.2d 360.) But, as the appellate court noted, the plaintiff had not been asked at his deposition whether he had worked at any jobsite where the general contractor was present. In fact the general contractor asked no questions at the deposition and conducted no other discovery. (Ibid.) Here, McGonnell was specifically asked about Kaiser Gypsum and Kaiser Cement. Scheiding is inapposite.

D. Plaintiffs' Evidence

Plaintiffs submitted their own McGonnell deposition excerpts, which showed McGonnell would cut into walls and disturb building materials. Unfortunately for plaintiffs, they had little evidence that McGonnell disturbed Kaiser products, and virtually no evidence he had disturbed Kaiser products containing asbestos.

Viewed in its best light, plaintiffs' evidence suggests that Kaiser Cement products might have been used once on a construction project at California Pacific. There is no evidence, however, that these products contained asbestos at the time of their use. Deposition excerpts from a contractor and building materials supplier showed Kaiser Cement plastic (stucco) cement might have been delivered for use on a project at California Pacific in the late 1970's. The building materials supplier was unsure of when he delivered the plastic cement, but he finally decided it was "more towards the end of the '70s," although he conceded it was just a guess. Plaintiffs' other evidence (discovery responses) showed Kaiser Cement stopped manufacturing plastic cement containing asbestos in Northern California in 1973, and in Southern California in 1976. Further, as defendants point out, plastic cement is applied to exterior walls for a stucco finish, and there was no evidence McGonnell worked with or around stucco.

With respect to Kaiser Gypsum products, plaintiffs had Kaiser Gypsum invoices showing the sale of wallboard and joint compound to a contractor in 1972. There are indications on the invoices that the materials were for a project at California Pacific. Plaintiffs' other evidence showed Kaiser Gypsum did not use asbestos in its wallboard, but that the joint compound could have contained asbestos.[2] Although the joint compound was delivered to the contractor a few years before McGonnell began his employment at California Pacific, it is at least within the realm of possibility that McGonnell encountered a wall with Kaiser joint compound during his 24 years of employment at California Pacific. Does this possibility create a triable issue of fact? We think not. It is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment. (Aguilar, supra, 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) All that exists in this case is speculation that at some time McGonnell might have cut into a wall that might have contained Kaiser joint compound

that might have contained asbestos. The evidence creates only "a dwindling stream of probabilities that narrow into conjecture." (Lineaweaver v. Plant Insulation Co., supra, 31 Cal. App.4th at p. 1421, 37 Cal.Rptr.2d 902.) Arguably better evidentiary showings in Lineaweaver (id. at pp. 1420-1421, 37 Cal. Rptr.2d 902), and Dumin v. Owens-Corning Fiberglas Corp., supra, 28 Cal.App.4th [*29] at pages 655-656, 33 Cal.Rptr.2d 702, resulted in nonsuits or directed verdicts that were affirmed on appeal. (Compare Lineaweaver, supra, at p. 1420, 37 Cal. Rptr.2d 902 [nonsuit reversed as to another plaintiff who established the defendant's product was definitely at his worksite and sufficiently prevalent to warrant an inference of exposure after more than 30 years of working with and around asbestos at a refinery].) It is proper to grant a summary judgment to avoid a trial that would be "rendered `useless' by nonsuit or directed verdict or similar device." (Aguilar, supra, at p. 855, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

Plaintiffs ask us to consider the declarations they submitted from their expert, a certified industrial hygienist. In the first declaration, the expert opines that McGonnell more likely than not was exposed to significant levels of airborne asbestos while working at California Pacific. Although the expert refers to the invoices discussed above, nowhere in his declaration does the expert tie Kaiser Gypsum or Kaiser Cement to the airborne asbestos at California Pacific.

Perhaps realizing that flaw, plaintiffs submitted a supplemental declaration from this expert on the day of the summary judgment hearing. In this brief four-paragraph document, the expert opined that it was more likely than not Kaiser Gypsum and Kaiser Cement asbestos-containing products were used at California Pacific in the 1970's and that McGonnell had been exposed to them. He provided little explanation or reasoning for his conclusion. He purported to base his opinion on a review of the materials submitted in opposition to the motion for summary judgment, plus "job specifications reflecting the proposed use of asbestos-containing plastic cement, wallboard and topping compound specified for use in the new construction of the Pacific Presbyterian Medical Center in the early 1970s."

The expert's supplemental declaration raises more questions than it answers: Where are these job specifications? Do they actually name Kaiser products containing asbestos? How does he know the Kaiser products contained asbestos? An expert's speculations do not rise to the status of contradictory evidence, and a court is not bound by expert opinion that is speculative or conjectural. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 777, 107 Cal.Rptr.2d 617, 23 P.3d 1143; Exxon Corp. v. Superior Court (1997) 51 Cal.App.4th 1672, 1683, 60 Cal.Rptr.2d 195.) Plaintiffs cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation, or reasoning. (See Golden Eagle Refinery Co. v. Associated Internal Ins. Co. (2001) 85 Cal.App.4th 1300, 1315, 102 Cal.Rptr.2d 834.) The trial court properly granted defendants' motion for summary judgment.

E. Plaintiffs' Request for a Continuance

In their opposition to the summary judgment motion, plaintiffs requested a continuance in order to obtain additional evidence from one Daniel Marconi of Marconi Plastering. According to a declaration from plaintiffs' counsel, she intended to prepare a declaration after she received information from Marconi. On the day of the summary judgment hearing, plaintiffs filed the declaration of Kenneth Marconi. Neither Kaiser Cement nor Kaiser Gypsum are mentioned in the declaration. Nothing stated in the declaration would lead one to conclude McGonnell was exposed to asbestos-containing products manufactured by Kaiser Cement or Kaiser Gypsum.

[*30] Although plaintiffs contend the trial court improperly denied their request for a continuance (see Code Civ. Proc, § 437c, subd. (h)),[3] they do not identify what additional evidence they would have gathered had a continuance been granted. They appear to have obtained the declaration they sought. They did not claim otherwise at the hearing on the summary judgment motion, nor did they request any additional time to gather evidence. It does not appear that the trial court in fact denied their request for a continuance. Plaintiffs have failed to show any error.

DISPOSITION

The judgment is affirmed.

We concur: SEPULVEDA and RIVERA, JJ.

[1] Defendants also introduced portions of plaintiff Jane McGonnell's deposition testimony in which she professed no knowledge as to whether her husband had worked with any Kaiser products.

[2] Plaintiffs claim the wallboard shown in the invoices was a special type called Null-A-Fire wallboard, which they claim contained asbestos. But they had no evidence of that fact and Kaiser Gypsum's discovery responses denied Null-A-Fire contained asbestos. [3] Code of Civil Procedure section 437c, subdivision (h) provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just."

Sources

• The opinion on Google Scholar
• California asbestos laws
• California asbestos exposure sites