Catiller v. Super. Ct. CA2/3

California Court of Appeal May 30, 2013 No. B248435Unpublished

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Holding. The trial court abused its discretion by denying a continuance of a summary judgment motion and granting said motion when the defendant's own discovery delays prevented the plaintiffs from obtaining essential evidence needed to oppose the motion.

Issues

Whether a trial court abuses its discretion by denying a continuance under Code of Civil Procedure section 437c, subdivision (h) when discovery delays caused by the moving party prevent the opposing party from preparing a substantive response.
Whether a plaintiff entitled to trial preference due to health is precluded from receiving a mandatory continuance to oppose a summary judgment motion.

Disposition. granted

Quotations verified verbatim against the opinion

“a plaintiff who is entitled to trial preference for reasons of health (§ 36) also is entitled to the mandatory continuance provided in subdivision (h) of section 437c.”

“The trial court’s actions in this matter are a manifest abuse of its discretion, leaving plaintiffs insufficient time to review the deposition testimony and prepare a substantive response to SEI’s motion for summary judgment.”

Filed 5/30/13 Catiller v. Super. Ct. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

EDWARD CATILLER et al., B248435

Petitioners, (Los Angeles County Super. Ct. No. BC492719) v. (JCCP No. 4674)

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

SCHNEIDER ELECTRIC USA, INC.,

Real Party in Interest.

ORIGINAL PROCEEDINGS in mandate. Emilie Harris Elias, Judge. Petition granted.

Napoli Bern Ripka Shkolnik & Associates LLP and Rebecca A. Cucu for Petitioners. No appearance for Respondent. K&L Gates LLP, Michele C. Barnes and Zachariah D. Baker for Real Party in Interest.

_________________________

Petitioners Edward and Barbara Catiller (collectively plaintiffs)1 filed this action against numerous defendants based on the contention that Edward was exposed to asbestos while in the navy, which resulted in malignant pleural mesothelioma, a terminal cancer. During his navy career, Edward allegedly was exposed to asbestos contained in Square D arc chutes, arc shields and electric switches manufactured by real party in interest Schneider Electric USA, Inc. (SEI). On January 2, 2013, plaintiffs’ motion for trial preference was granted. (Code Civ. Proc., § 36.)2 Trial was scheduled to begin on May 1, 2013. On March 11, 2013, plaintiffs noticed the deposition of SEI’s most knowledgeable person regarding the products that contained asbestos, the years they contained asbestos and the quantitative percentage of asbestos contained in the products. The date of deposition was set as March 26, 2013. SEI did not timely provide its most knowledgeable person for deposition, thereby depriving plaintiffs of the opportunity to obtain information necessary to the action. Instead, SEI filed a motion for summary judgment based on the contention that plaintiffs had no evidence that the products used by Edward during his employment with SEI caused or contributed to his mesothelioma.

Catiller v. Super. Ct. CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

SCHNEIDER ELECTRIC USA, INC.,

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

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