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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              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.

                                             _________________________



                                                             6
       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.



1
       When the plaintiffs are referenced as individuals, first names will be used in the
interest of clarity and convenience.
2
       Statutory references are to the Code of Civil Procedure. Subdivision (a)(2) of
section 36 provides for trial preference where: “The health of the party is such that a
preference is necessary to prevent prejudicing the party’s interest in the litigation.”

        Subdivision (d) of section 36 further provides: “In its discretion, the court may
also grant a motion for preference that is accompanied by clear and convincing medical
documentation that concludes that one of the parties suffers from an illness or condition
raising substantial medical doubt of survival of that party beyond six months, and that
satisfies the court that the interests of justice will be served by granting the preference.”
       On April 9, 2013, plaintiffs appeared ex parte seeking to compel the deposition of
SEI’s most knowledgeable person. Counsel for SEI stated the only date on SEI would
produce the representative was Thursday, April 25, 2013, a date two weeks after
plaintiffs’ opposition to the summary judgment motion was due and three days (including
a weekend) before the motion was set for hearing on Monday, April 29, 2013. The trial
court allowed this discovery delay irrespective of the date for the hearing on the motion
for summary judgment and imminent trial date, a ruling that deprived plaintiffs of any
meaningful opportunity to obtain the deposition transcript, review the transcript, and
prepare a substantive response to the motion for summary judgment.
       A plaintiff is required to make only a (1) threshold exposure to a defendant’s
asbestos-containing products; and (2) a reasonable medical probability that a particular
exposure was a substantial factor that is, “more than negligible or theoretical” in causing
Edwards’s malignant pleural mesothelioma. (Rutherford v. Owens-Illinois, Inc. (1997)
16 Cal.4th 953, 975-978.)
       Because of the discovery delay, plaintiffs filed a motion for a continuance of the
summary judgment motion based on subdivision (h) of section 437c: “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. The application to continue the motion to obtain necessary discovery may
also be made by ex parte motion at any time on or before the date the opposition response
to the motion is due.” (Italics added.)
       On April 29, 2013, the trial court inexplicably denied the motion for a continuance
and granted SEI’s motion for summary judgment, indicating plaintiffs should have
somehow obtained discovery at an earlier time and/or obtained a transcript of the
deposition after only one court day and prepared substantive opposition to the summary
judgment motion in order to provide evidence to support the contention that SEI was
partially responsible for Edward’s exposure to asbestos.
       The court indicated that because the deposition of SEI’s most knowledgeable
person had taken place on Thursday, April 25, 2013, “You had time for opposition.” The
court commented, “I think there is a downside to everybody with regard to preference
cases. Okay? If you want them, you got then. I give them to you when you ask for
them. You could have done more discovery and then gotten it. That’s all I can tell you.”
       Irrespective of the respondent’s court statements, 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. This is the rule, especially where, as here,
the delay was caused in large part by a defendant’s discovery delay.
       The manner in which the trial court handled the discovery requests, the request for
continuance, and the motion for summary judgment deprived plaintiffs of a viable
opportunity to make the threshold showing of the possibility Edward’s malignant pleural
mesothelioma resulted, in part, from products manufactured by SEI. It is obvious that the
delay of discovery was caused by SEI’s failure to cooperate in discovery. We disagree
with the trial court’s language indicating that plaintiffs’ were at fault in the delay of the
deposition of SEI’s most knowledgeable person until only one court day before the
hearing on the motion for summary judgment.3
       “ ‘[A] summary judgment is a drastic measure which deprives the losing party of
trial on the merits.’ ” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) “To
mitigate summary judgment’s harshness, the statute’s drafters included a provision
making continuances—which are normally a matter within the broad discretion of trial
courts—virtually mandated . . . .” (Ibid.; Code Civ. Proc., § 437c, subd. (h).)
       Where the opposing party submits an adequate affidavit showing that essential
facts may exist but cannot be presented timely, the court must either deny summary
judgment or grant a continuance. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) The
Legislature’s inclusion of the words “may” and “shall” leaves “little room for doubt that

3
       SEI’s contention that plaintiffs should have prepared substantive opposition and a
separate statement of material facts is without merit or viability under the circumstances
present here.
such continuances are to be liberally granted.” (Bahl v. Bank of America, supra,
89 Cal.App.4th at p. 395.)
       The fact that plaintiffs have a preferential trial date4 based on Edward’s health
should not result in an adverse summary judgment where the delay in discovery was
caused by SEI’s failure timely to provide its most knowledgeable person for deposition.
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.
       On May 6, 2013, we notified the trial court and all parties of our preliminary
decision to grant a peremptory writ of mandate in the first instance (Lewis v. Superior
Court (1999) 19 Cal.4th 1232; Palma v. U.S. Industrial Fasteners, Inc. (1984)
36 Cal.3d 171), and gave the trial court an opportunity to change and correct its order in
compliance with the course of action set forth in Brown, Winfield & Canzoneri, Inc. v.
Superior Court (2010) 47 Cal.4th 1233. The time specified in the May 6, 2013 notice has
expired and the trial court has taken no action to comply with the procedures established
in Brown.
       We have received both opposition to the issuance of a peremptory writ of mandate
and a reply brief.
       Having complied with all procedural requirements (Palma v. U.S. Industrial
Fasteners, Inc., supra, 36 Cal.3d 171), and having determined that plaintiffs’
“entitlement to relief is so obvious that no purpose could reasonably be served by plenary
consideration of the issue . . . .” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35), we




4
       Subdivision (f) of section 36 provides: “Upon the granting of such a motion for
preference, the court shall set the matter for trial not more than 120 days from that date
and there shall be no continuance beyond 120 days from the granting of the motion for
preference except for physical disability of a party or a party’s attorney, or upon a
showing of good cause stated in the record. Any continuance shall be for no more than
15 days and no more than one continuance for physical disability may be granted to any
party.” (Italics added.)
conclude the trial court abused its discretion both in denying the request for continuance
and in granting the motion for summary judgment.
       The petition for writ of mandate is granted.
       DISPOSITION
       The trial court is directed to: (1) vacate the order granting summary judgment;
(2) provide plaintiffs a 10-day period to prepare a substantive response to the summary
judgment motion and allow plaintiffs to incorporate the deposition of SEI’s most
knowledgeable person into the opposition; (3) set a five-day period for SEI to file and
personally serve any further briefing supporting its motion; (4) set a date for hearing the
motion for summary judgment within 10 days thereafter, and (5) if the motion is denied
proceed to trial on the earliest possible date.
       Plaintiff shall recover all costs of this proceeding.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                   CROSKEY, Acting P. J.




              ALDRICH, J.




              HEESEMAN, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article 6, section 6 of the California Constitution.
