Lovelace v. Elementis Chemicals CA3

Filed 4/3/14 Lovelace v. Elementis Chemicals CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

JAMES A. LOVELACE,

Plaintiff and Appellant, C071503

v. (Super. Ct. No. 34201100104560CUASGDS) ELEMENTIS CHEMICALS, INC., as Successor in Interest, etc., et al.,

Defendants and Respondents.

After being diagnosed with mesothelioma, James A. Lovelace sued numerous corporate defendants based on asbestos exposure sustained during his years of plumbing and construction work. Lovelace’s operative complaint alleged his mesothelioma was caused by a number of products, including joint compounds manufactured by Georgia- Pacific LLC (Georgia-Pacific) and Kaiser Gypsum Company (Kaiser) and containing

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asbestos supplied by Elementis Chemical, Inc. (Elementis).1 Elementis moved for summary judgment by asserting Lovelace had no evidence to indicate Elementis supplied asbestos for any product to which Lovelace was exposed. Lovelace provided deposition testimony that he recalled seeing the Kaiser and Georgia-Pacific names on the joint compound containers he had used. Elementis objected to the evidence on grounds (1) Lovelace had not authenticated the documentary evidence purporting to show Elementis supplied the asbestos to Kaiser or Georgia-Pacific, and (2) Lovelace’s testimony about seeing the names of the manufacturers on the joint compound products was inadmissible hearsay. The trial court sustained both evidentiary objections and granted summary judgment in favor of Elementis. On appeal, Lovelace argues his deposition testimony identifying Kaiser and Georgia-Pacific products was not hearsay, fell within the “ancient document” exception to the hearsay rule, and belongs to a class of evidence for which a hearsay exception should be judicially created. Because Lovelace makes no argument regarding the alternative grounds on which the judgment granting summary judgment rests, we are compelled to affirm. DISCUSSION This court will not reverse a judgment for error by the trial court unless the appellant also demonstrates the error was prejudicial. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 (Cassim).) The California Supreme Court has explained, “Our state Constitution provides that ‘[n]o judgment shall be set aside, or new trial granted, in any cause, . . . for any error as to any matter of procedure, unless, after an examination of the