Gerlach v. Goodman Lumber Co. CA1/1

Filed 7/27/16 Gerlach v. Goodman Lumber Co. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

ANDREA GERLACH et al., Plaintiffs and Appellants, A144642 v. GOODMAN LUMBER COMPANY, (San Francisco City & County Super. Ct. No. CGC-14-276241) Defendant and Respondent.

Jerry Charlifue (Charlifue) and his wife, Christine Charlifue, filed this asbestos- related personal injury action against Goodman Lumber Company (Goodman) after Charlifue was diagnosed with mesothelioma. Plaintiffs1 now appeal the trial court’s grant of summary judgment in favor of Goodman. Plaintiffs argue the trial court erred in striking various evidence submitted in opposition to summary judgment. They also assert they raised a triable issue of fact as to whether Goodman exposed Charlifue to an asbestos-containing joint compound.2 We agree and reverse. I. BACKGROUND Charlifue worked as a taper and painter for U.S. Taping Company (U.S. Taping) between 1972 and 1978. As a taper, Charlifue’s job was to smooth out walls and ceilings

1 Charlifue passed away during the pendency of this appeal and Andrea Gerlach, his successor in interest, has been substituted as an appellant. We refer to Charlifue, Christine Charlifue, and Gerlach, collectively, as plaintiffs. 2 Plaintiffs also appeal the trial court’s denial of their motion for a new trial. As we find summary judgment was improperly granted, we need not and do not reach the issue.

where drywall had been hung. In doing so, Charlifue would apply a joint compound to the drywall and later sand the compound between coats. For the first three or four years, Charlifue worked with a dry powdered joint compound that he mixed with water. Pouring the powdered mixture released dust, which Charlifue would later clean up with a broom. Plaintiffs assert these joint compounds contained asbestos, and that they were purchased from Goodman. In or around 1976, Charlifue began working with premixed joint compounds. In 2014, after Charlifue was diagnosed with mesothelioma, plaintiffs filed this personal injury action against Goodman. Goodman moved for summary judgment on several grounds, including that plaintiffs’ discovery responses showed they could not prove Charlifue was exposed to an asbestos-containing product supplied by Goodman. According to Goodman, Charlifue admitted he could not identify any brand of joint compound he purchased from Goodman between 1973 and 1976. Goodman also asserted Charlifue did not see the word “asbestos” on any packaging, and he had no knowledge of whether the joint compound products contained asbestos. In opposing summary judgment, plaintiffs submitted Charlifue’s deposition testimony, in which he recalled purchasing various brands of joint compound from Goodman, including those manufactured by Kaiser Gypsum Company (Kaiser Gypsum) and United States Gypsum Company (US Gypsum or USG). Charlifue remembered first going to Goodman during his first year working at US Taping, and he often went more than once a week. While there, he would usually pick up at least 20 bags of joint compound, which were 25 to 35 pounds each. As Goodman points out, Charlifue’s testimony was sometimes vague as to time. For example, at one point, Charlifue stated he did not have a specific recollection of going to Goodman in 1972, but he was “sure” he did. At another point, Charlifue stated: “As the years went by, which is about maybe two or three years down the road, . . . then I started remembering that, yes, it was USG and Kaiser Gypsum that we started using.” Charlifue also admitted to purchasing joint compound from other retailers, but asserted “most of our materials came out of