WILLHITE, J. —
For approximately 24 years, Lario Melendrez worked for defendant and respondent Ameron International Corporation, where he was exposed to asbestos in the manufacture of Ameron's Bondstrand pipe products. In 2011, he died of asbestos-related mesothelioma. His survivors,
In these consolidated appeals, plaintiffs first challenge the grant of summary judgment, asserting that workers' compensation does not cover Melendrez's injury to the extent his exposure to asbestos was from working with Bondstrand pipe on his own time at home (case No. B256928). Second, plaintiffs challenge the trial court's award of expert fees pursuant to Code of Civil Procedure section 998 (case No. B259423).
Melendrez worked for Ameron and its predecessors from approximately 1961 to 1985, performing various tasks in the manufacture of Ameron's Bondstrand pipe. The pipe, which was designed to transport extremely corrosive materials, contained asbestos, and Melendrez was exposed to asbestos from the manufacturing process in the course of his employment with Ameron.
The plant where Melendrez worked allowed employees to take home reject Bondstrand pipe if they received a permission slip signed by a supervisor. In the 1970's, Melendrez began taking pipe home. According to Melendrez, he took pipe home "every day that [he] could," using it to make flowerpots and part of a patio.
Melendrez's employment with Ameron ended in 1985 when the plant moved to Texas. In December 2010, he was diagnosed with malignant mesothelioma caused by exposure to asbestos. He died in 2011, survived by plaintiffs — his wife and four adult children.
Plaintiffs contend that the trial court erred in relying on workers' compensation exclusivity to grant summary judgment. According to plaintiffs, to establish an affirmative defense of workers' compensation exclusivity, Ameron was required to show that Melendrez's separate exposure to asbestos while working with Ameron's scrap pipe at home met the conditions of workers' compensation coverage: i.e., that the exposure arose out of and in the course of Melendrez's employment. Plaintiffs argue that Ameron failed to meet this burden, because in using the pipe at home Melendrez was not performing any service growing out of or incidental to his employment. Thus, the contribution to his mesothelioma caused by his home exposure to asbestos is not covered by workers' compensation.
"A defendant moving for summary judgment must show either (1) that one or more elements of the plaintiff's cause of action cannot be established, or
"We review the trial court's summary judgment rulings de novo. [Citation.] `"In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally, construing [his] evidentiary submission while strictly scrutinizing [the defendant's] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." [Citation.]' [Citation.]" (Ganoe v. Metalclad Insulation Corp. (2014) 227 Cal.App.4th 1577, 1582 [174 Cal.Rptr.3d 787].)
"Whether an employee's injury arose out of and in the course of [his] employment is generally a question of fact to be determined in light of the circumstances of the particular case. [Citations.]" (Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 353 [115 Cal.Rptr.2d 503].) "When there is no real dispute as to the facts, the question of whether an injury was suffered in the course of employment is one of law, and a purported finding of fact on that question is not binding on an appellate court. [Citations.]" (City of Los Angeles v. Workers' Comp. Appeals Bd. (2007) 157 Cal.App.4th 78, 83 [68 Cal.Rptr.3d 343].)
In the present case, a triable issue of fact exists whether Melendrez's exposure to asbestos at home arose out of and in the course of his employment with Ameron. But, as we explain, that factual issue is not material to the viability of Ameron's defense of workers' compensation exclusivity. On the record here, that defense is established as a matter of law.
Particularly instructive is the Supreme Court's decision in McAllister v. Workers' Comp. App. Bd. (1968) 69 Cal.2d 408 [71 Cal.Rptr. 697, 445 P.2d 313] (McAllister), discussed in South Coast Framing, supra, 61 Cal.4th at page 301 as an example of the expansive concept of contributing cause in the workers' compensation context. In McAllister, the employee worked as a fireman for 32 years, and died of lung cancer. His wife applied for workers' compensation benefits, and produced expert testimony that the employee's inhalation of smoke in his duties as a fireman caused his death. (69 Cal.2d at p. 411.) The trial referee awarded benefits, but the appeals board annulled the award. On the wife's petition for review, the Supreme Court annulled the appeals board decision.
As here relevant, the court rejected the appeals board's conclusion that to prove her husband's death was caused by his employment, the wife was required to show "the exact amount of each type of smoke inhaled, and the precise danger to decedent from such inhalation. Of course, such a detailed account would have been desirable, but it was not a prerequisite to recovery.
The court also rejected the argument the employee's history as a heavy smoker (a pack a day for 42 years) precluded an award of benefits. "We cannot doubt that the more smoke decedent inhaled — from whatever source — the greater the danger of his contracting lung cancer. His smoking increased that danger, just as did his employment. Given the present state of medical knowledge, we cannot say whether it was the employment or the cigarettes which `actually' caused the disease; we can only recognize that both contributed substantially to the likelihood of his contracting lung cancer. As we noted, however, in Employers etc. Ins. Co. v. Industrial Acc. Com. (1953) 41 Cal.2d 676, 680 [263 P.2d 4], the decedent's employment need only be a `contributing cause' of his injury. And in Bethlehem Steel Co. v. Industrial Acc. Com. [(1943)] 21 Cal.2d 742, 744 [135 P.2d 153], we pointed out a particular instance of this principle when we stated that it was enough that `the employee's risk of contracting the disease by virtue of the employment must be materially greater than that of the general public.' Thus in Bethlehem we allowed an award to an employee who contracted a contagious eye disease, since he had shown that the disease was more common at his place of employment than among the public. [¶] Although decedent's smoking may have been inadvisable, respondents offer no reason to believe that the likelihood of contracting lung cancer from the smoking was so great that the danger could not have been materially increased by exposure to the smoke produced by burning buildings." (McAllister, supra, 69 Cal.2d at pp. 418-419.)
In the present case, under the reasoning of McAllister, Melendrez's mesothelioma is covered by workers' compensation. It is undisputed that a substantial contributing cause of Melendrez's disease was his exposure to asbestos from the manufacture of Ameron's Bondstrand pipe in the course of and arising out of his employment with Ameron. Although Melendrez was also exposed to asbestos from working with scrap pipe at home, that exposure does not create a separate injury outside workers' compensation coverage that is compensable in tort law. Indeed, plaintiffs offered no evidence to show the extent to which Melendrez's home exposure to asbestos contributed to his mesothelioma separate and apart from his workplace exposure. The most that can be said is that his home exposure likely contributed to the disease along with his workplace exposure. But under workers' compensation principles, the contribution of his home exposure does not create a divisible, separate
Here, any injury that Melendrez suffered from working with Bondstrand pipe at home (that injury being an unknown contribution to his mesothelioma) was "`collateral to or derivative of'" the injury he suffered at work (the same mesothelioma also caused by his working with Bondstrand pipe), and thus any injury suffered from home exposure to asbestos is "compensable by the exclusive remedies of the [Workers' Compensation Act]." (Vacanti, supra, 24 Cal.4th at p. 813.) Plaintiffs' tort action thus "is barred under the derivative injury and workers' compensation exclusivity rules. [Citations.]" (LeFiell, supra, 55 Cal.4th at p. 289.)
To argue that Melendrez's exposure to asbestos at home creates a separate injury beyond the reach of workers' compensation plaintiffs rely on two
In Ralphs, the employee went on disability leave due to an industrial injury to his finger. Later, he was laid off while on disability leave, causing him to lose his medical benefits. He had earlier been diagnosed with cancer. Without his prior medical benefits, he depleted his family savings paying for treatment. He hoped to be reinstated with benefits, but instead he received a telephone call at home from his employer which offered only a part-time position without benefits. According to an expert medical opinion, the stress of the call triggered a fatal heart attack. (Ralphs, supra, 58 Cal.App.4th at p. 650.)
The employee's wife sought workers' compensation benefits for the employee's surviving minors. Accepting the expert opinion that the employer's telephone call caused the heart attack, a workers' compensation judge found that the heart attack arose out of and occurred during the course of employment and awarded benefits. The Workers' Compensation Appeals Board upheld the award. The employer petitioned the Court of Appeal to annul the award, challenging only the finding that the heart attack occurred in the course of employment. (Ralphs, supra, 58 Cal.App.4th at pp. 651-652.) The Court of Appeal agreed: "When he was injured, [the employee] was off duty, at home, and spending time with his family on a Sunday evening. He was engaged in no special errand or activity for [the employer]. It would be a stretch of the imagination to say that answering his home phone was an act in the course of [his] employment ...." (Id. at p. 652.)
In Mason, an employee of a water park entered the park to complete his shift after the park was closed. In contravention of the park's policy prohibiting after-hours employee use of the water slides, he asked someone to turn on a water slide and then rode down. He suffered injuries rendering him a paraplegic. (Mason, supra, 117 Cal.App.4th at pp. 825, 828.) The employee sued the water park for negligence. (Id. at p. 826.) In finding the employer negligent, the jury found that the employee's injury did not arise out of or in the course of his employment. (Ibid.) However, the trial court granted the employer's motion for judgment notwithstanding the verdict and alternatively a new trial on the ground that the undisputed evidence showed the negligence action was barred by workers' compensation exclusivity. (Id. at pp. 826, 830.)
The Court of Appeal reversed, concluding that substantial evidence supported the jury's finding the injuries did not arise out of or in the course of employment: "Substantial evidence showed that he [the employee] was not
As our discussion of Ralphs and Mason demonstrates, each involved an injury which fell entirely outside the conditions of workers' compensation coverage. Neither decision purports to speak to the situation here, in which the employee contracts a single disease which, because it has an industrial cause, is covered by workers' compensation, even though it also has a contributing, nonindustrial cause. Plaintiffs have offered no authority to support severing such an injury in two — one covered by workers' compensation, and the other not — based on the contributing causes. Indeed, such a splitting of Melendrez's disease would contravene the purpose of the exclusive remedy rule, which "`conveys the legislative intent that "the work-connected injury engender[] a single remedy against the employer, exclusively cognizable by the compensation agency." [Citation.]'" (LeFiell, supra, 55 Cal.4th at p. 284.)
For all of the above reasons, we conclude as a matter of law that workers' compensation exclusivity bars plaintiffs' lawsuit. Therefore, the trial court properly granted summary judgment.
"Code of Civil Procedure section 998, subdivision (c)(1) provides: `If an offer [of compromise] made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer.' Costs awardable under this subdivision include `costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.' [Citations.]" (Najah v. Scottsdale Ins. Co. (2014) 230 Cal.App.4th 125, 143 [178 Cal.Rptr.3d 400] (Najah).)
On August 3, 2012, approximately two months prior to trial and six weeks after filing its motion for summary judgment, Ameron made an offer to compromise under section 998, offering a mutual waiver of costs and fees in exchange for a dismissal with prejudice of all of plaintiffs' claims against Ameron. Each of the plaintiffs objected to the offer, stating that the offer was "invalid, ineffective and unenforceable because [the] offer is premature as both fact and expert discovery are on-going. No fact and expert depositions have taken place.... As of the date of this objection, Plaintiff has not had the opportunity to notice, or conduct the depositions of any of the remaining Defendants' Persons Most Knowledgeable .... As such, this offer is premature and not made in good faith, and is therefore a token offer which is ineffective and unenforceable."
On August 20, 2012, Ameron served its designation of expert witnesses. One of the experts was Steve Long of Forensic Analytical Consulting Services, an industrial hygiene expert with experience in asbestos abatement. Long was expected to testify about an abatement project undertaken at Melendrez's home, which involved surveying the items, removing testing samples from the items, testing the samples for asbestos, and removal or abatement of the items.
On August 30, 2012, the case was stayed pending the appellate court's determination of a writ petition filed by plaintiffs on an unrelated discovery issue against a different defendant. (See Melendrez v. Superior Court (2013) 215 Cal.App.4th 1343 [156 Cal.Rptr.3d 335].) The court granted the petition for writ of mandate in April 2013. (Id. at p. 1358.)
In November 2012, Forensic Analytical issued a report indicating that 35 pipes at Melendrez's home contained asbestos and approximately 175 more
The trial court granted Ameron's summary judgment motion on April 10, 2014. Ameron filed a memorandum of costs in the amount of $142,401.25 for costs and expert witness fees. Ameron sought a total of $130,334 in expert fees, consisting of $107,719 to Forensic Analytical for the survey, abatement planning, testing and analyzing of samples at Melendrez's home; $3,000 as an expert retainer fee to Dr. John E. Craighead; and $19,615 "for abatement and canopy demolition services provided by Castlerock at the Melendrez property."
Plaintiffs filed a motion to tax the expert fees. Plaintiffs argued that Ameron was not entitled to recover costs related to the survey and abatement of asbestos on the Melendrez property, arguing that such costs were not allowed under section 1033.5. Plaintiffs further argued that the costs of abatement were not derivative of or necessary to the litigation because there was no dispute that the pipe came from Ameron, and the pipe needed to be removed regardless of whether Melendrez developed mesothelioma or plaintiffs filed a wrongful death action. Plaintiffs further argued that expert witness costs are not allowable unless ordered by the court pursuant to section 1033.5, subdivision (b)(1). Finally, plaintiffs contended that Ameron had not made a reasonable pretrial settlement offer under section 998.
The trial court granted in part and denied in part plaintiffs' motion to tax. The court agreed with plaintiffs that the asbestos abatement costs were not recoverable under section 1033.5. The court also agreed that they were not recoverable as expert witness fees because the court did not order them. (§ 1033.5, subd. (b)(1).) Nonetheless, the court rejected plaintiffs' argument that Ameron's abatement costs were unrecoverable under section 998. The court found that Ameron's section 998 settlement offer was reasonable because "it was made (1) close to trial following completion of a significant portion of discovery, including, but not limited to, multiple depositions, and (2) during the pendency of an ultimately successful summary judgment motion based on the workers' compensation exclusivity rule." The court thus held that Ameron was entitled to recover some of its costs, taxing the amount for abatement services provided by Castlerock Environmental and reducing the amount charged by Forensic Analytical by $30,000 "to account for unrecoverable abatement-related expenses." The court noted that Forensic Analytical's invoices were "somewhat vague as to the charges that relate specifically to abatement planning and actual abatement," but the court "believe[d] $30,000.00 is a reasonable estimate of the total value of such charges." The court thus awarded Ameron $80,719 in expert witness fees.
Plaintiffs contend that Ameron's settlement offer was not reasonable because at the time Ameron made the offer, plaintiffs did not know the value of the waiver of costs. Instead, they believed that their wrongful death action was viable because Melendrez died of asbestos-caused mesothelioma; he brought asbestos-containing pipes home from work; Ameron did not dispute
In Najah, the defendant served an offer to settle for $30,000 under section 998. The plaintiffs did not accept, and after trial, judgment was entered in the defendant's favor. The defendant filed a memorandum of costs seeking $86,022.84, including over $40,000 in expert witness expenses. (Najah, supra, 230 Cal.App.4th at p. 133.) The trial court denied the plaintiffs' motion to tax costs, finding that the offer was made in good faith and that the plaintiffs had failed to show the expenses were unreasonable or unnecessary to the conduct of the litigation. On appeal, the plaintiffs argued that the offer to compromise was unreasonable in light of the evidence, which at the time of the offer indicated damages of $500,000. We affirmed, reasoning that "nothing precluded the trial court from concluding that the $30,000 offer was reasonable based on the determination — with which we agree — that [the defendant] had no liability." (Najah, supra, 230 Cal.App.4th at p. 144.)
As in Najah, the defendant in this case obtained a judgment more favorable than its settlement offer, resulting in a presumption that the offer was reasonable. (Najah, supra, 230 Cal.App.4th at pp. 143-144.) The burden thus was on plaintiffs to establish "unreasonableness or lack of good faith." (Bates, supra, 204 Cal.App.4th at p. 221.) We conclude that plaintiffs have failed to meet their burden.
Plaintiffs rely on Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63 [169 Cal.Rptr. 66], in which the defendant's $2,500 offer to settle a complaint seeking $10 million in damages was found to be unreasonable for purposes of section 998. The appellate court found that the trial court "had ample reason to find that the offer was not reasonable" even though the defendant's liability "was tenuous indeed." (112 Cal.App.3d at p. 63.) The court reasoned that in light of "the enormous exposure" the defendant faced, the trial court "could find that [the defendant] had no expectation that its offer would be accepted. From this it follows that the sole purpose of the offer was to make [the defendant] eligible for the recovery of large expert witness fees at no real risk." (Ibid.)
Similarly, in Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102 [30 Cal.Rptr.2d 486] (Santantonio), the appellate court concluded the defendants' $100,000 offer was not unreasonable or unrealistic, even though the plaintiff claimed $900,000 in damages. (Id. at p. 118.) The court reasoned that the "[d]efendants contended that they had no liability to [the plaintiff] at all, and the jury ultimately agreed." (Ibid.)
As in Adams and Santantonio, Ameron's offer should be evaluated not only in comparison to the amount of damages plaintiffs sought, but in light of their likelihood to prevail. Although plaintiffs may have believed they were likely to prevail, it is apparent that plaintiffs were cognizant of the applicability of the workers' compensation exclusivity rule. In their complaint, plaintiffs pleaded allegations pertinent to the dual capacity exception to the exclusivity rule, alleging that Melendrez obtained Ameron's asbestos-containing products from an independent third party who obtained the product from Ameron for valuable consideration.
Plaintiffs argue that the value of the waiver of costs was not apparent to them at the time of the offer because they did not know Ameron would designate Steve Long as an expert witness and they did not know Ameron had incurred $130,000 in costs. However, in June 2012, two months prior to the offer, counsel for Ameron sent plaintiffs' counsel a letter stating that Ameron's "removal/testing specialist Steve Long" had "recently learned ... that a number of the subject `pipe' elements located at the Melendrez home are actually providing structural support to portions of the house's roof and that of a storage shed," thus complicating the process of removal and testing. The letter went on to provide a timeline and description of the work to be done by Forensic Analytical, including "survey and sampling of subject pipe materials," tests for the presence of asbestos, and disposal of pipes found to contain asbestos. Plaintiffs thus were aware that Ameron had hired Steve Long and Forensic Analytical to survey, remove, and test the pipes for asbestos. Given this fact, and Ameron's reliance on the workers' compensation exclusivity rule, plaintiffs had "access to the facts that influenced the defendant's determination that the offer was reasonable." (Adams, supra, 199 Cal.App.4th at p. 1485.)
The trial court found the offer to be reasonable because it was made after a significant portion of discovery had been conducted and because Ameron succeeded on its summary judgment motion. Plaintiffs have failed to meet their burden of establishing that the offer was unreasonable. The amount of the offer in comparison to the potential recovery, plaintiffs' belief in the viability of their claim, and their alleged lack of awareness regarding the value of the waiver of costs do not establish that the trial court abused its discretion in finding the offer to be reasonable. (See Najah, supra, 230 Cal.App.4th at p. 145 ["[A]lthough potential damages were extensive, given the reasonable possibility that liability did not exist, the trial court did not abuse its discretion in determining that [the defendant's] offer was reasonable."]; Santantonio, supra, 25 Cal.App.4th at p. 118 [$100,000 offer not unreasonable despite $900,000 claim in damages because defendants contended they had no liability and the jury agreed].)
Plaintiffs contend that the costs incurred to survey and test the pipes on Melendrez's property were not necessary and reasonable for trial because they were abatement costs, not expert witness costs. We disagree. Ameron contends that it hired Forensic Analytical in order to establish that Melendrez's exposure to asbestos at home was minimal and thus was not a substantial factor in the development of his mesothelioma. Although plaintiffs are correct that there was no dispute that the pipes came from Ameron, Ameron needed to determine the amount and locations of the pipe on Melendrez's property in order to establish its defense that his exposure at home was not a substantial factor in causing his mesothelioma. The work performed by Forensic Analytical to remove and test the pipe on Melendrez's property therefore was
Although plaintiffs take issue with the trial court's estimate of $30,000 in abatement costs, plaintiffs do not provide evidence to establish that the court's estimate constituted an abuse of discretion. Plaintiffs contend that items listed on Forensic Analytical's bill, such as "project administration," "site inspection," "travel time," and "other vague descriptions of tasks related to abatement" established that Forensic Analytical's costs related to abatement and thus were not expert witness fees. However, these descriptions do not establish that Forensic Analytical's activities related solely to asbestos abatement. Had the trial court not granted Ameron's summary judgment motion, part of its defense would have been to establish that the amount of asbestos at Melendrez's home was minimal. It is not clear that Forensic Analytical's activities related to abatement rather than trial preparation by determining the amount of asbestos at Melendrez's home. (See Adams, supra, 199 Cal.App.4th at p. 1487 ["Whether an item listed on the memorandum was reasonably necessary is a question of fact to be decided by the trial court. [Citation.]"].)
Plaintiffs further rely on the fact that the costs incurred by Ameron in retaining Forensic Analytical related to the amount of asbestos exposure Melendrez faced at home and thus did not relate to the workers' compensation exclusivity ground on which it ultimately prevailed. However, plaintiffs cite no authority for the proposition that expert witness fees are not recoverable if the defendant obtains judgment in its favor based on an issue other than that for which the expert was retained. The statute does not include such a requirement, stating only that the court "may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant." (§ 998, subd. (c)(1).) In fact, "[a]lthough the statute refers to expert witnesses, courts have recognized that `section 998 ... covers the cost of experts who aid in the preparation of the case for trial, even if they do not actually testify.' [Citation.]" (Bates, supra, 204 Cal.App.4th at p. 222.)
"We will reverse the trial court's determination only if we find that `in light of all the evidence viewed most favorably in support of the trial court, no judge could have reasonably reached a similar result.' [Citation.]" (Bates, supra, 204 Cal.App.4th at p. 221.) We affirm the trial court's order granting in part and denying in part plaintiffs' motion to tax costs and ordering an award of Ameron's expert witness fees.
The judgment in case No. B256928 is affirmed. The order in case No. B259423 is affirmed. The parties shall bear their own costs on appeal.
Epstein, P. J., and Manella, J., concurred.