Summary of August 20, 2014 conference report for civil cases
The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, August 20, 2014. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.
Review Granted
Kesner v. Superior Court (Pneumo Abex LLC), S219534—Review Granted—August 20, 2014
This case presents the following question: Do employers owe a duty to family members of employees in asbestos take-home exposure cases?
The plaintiff’s uncle was an employee of Pneumo Abex, where he came into contact with manufacturing processes that allegedly left asbestos dust on his clothing. Plaintiff did not live with his uncle but, during a six-year period, was a frequent visitor to his uncle’s house. Later, plaintiff was diagnosed with peritoneal mesothelioma, which he attributed to spending time with his uncle. Plaintiff sued Pneumo Abex, alleging negligence and other causes of action. Pneumo Abex moved for nonsuit, relying on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, and asserting that it owed no duty to plaintiff for exposure to asbestos through contact with an employee where that exposure did not take place at Abex’s facilities. The trial court agreed and granted the nonsuit motion.
In a published opinion, Kesner v. Superior Court (2014) 226 Cal.App.4th 251, the Court of Appeal, First District, Division Three, reversed. The court ruled that the likelihood of causing harm to a person with recurring and non-incidental contact with an employee is sufficiently foreseeable to bring a family member within the scope of those to whom the employer owes a duty of care. [Horvitz & Levy represents real party in interest Pneumo Abex LLC in this case.]
Haver v. BNSF Railway Co., S219919—Review Granted—August 20, 2014
This case presents the following question: Do employers owe a duty to family members of employees in asbestos take-home exposure cases?
Plaintiffs’ decedent’s former husband was an employee of the predecessor to BNSF Railway Company and was exposed to products and equipment containing asbestos. The asbestos adhered to his work clothing and plaintiffs’ decedent claimed to have been secondarily exposed through her direct and indirect contact with him at their home. The decedent suffered permanent injuries including throat cancer and progressive lung disease from which she died. Subsequently, her heirs brought a wrongful death suit against BNSF. Relying on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, BNSF demurred, asserting that it owed no duty of care to avoid exposing the decedent to asbestos. The trial court agreed and sustained the demurrer without leave to amend.
In a published opinion, Haver v. BNSF Railway Co. (2014) 226 Cal.App.4th 1104, the Court of Appeal, Second District, Division Five, affirmed. Plaintiffs asserted that Campbell was not controlling because it was (1) distinguishable from the present case, and (2) incorrectly decided. The court rejected both of those contentions. The court went on to reiterate the rule established in Campbell: premises owners owe no duty to protect family members of workers on their premises from secondary exposure to asbestos used during the course of the property owners’ business.
Review Denied (with dissenting justices)
None.
Depublished
In re Felicity S., S219627—Depublished—August 20,2014
This case presented the following issue: Should a minor’s appellate counsel be subject to public admonishment where counsel (1) failed to address the reasons the First District Appellate Project (FDAP) sought her appointment, (2) filed an unhelpful brief on behalf of the minor, and (3) altered the minor’s position on appeal without the consent of the minor’s guardian ad litem?
The minor’s appellate counsel was appointed by the Court of Appeal during a custody hearing where the court adjudged the minor a dependent of the court in preparation for removing her from her mother’s home. At the trial level, the minor’s trial counsel, also appointed as her guardian ad litem, took the position that the minor should be removed from her mother’s home.
However, on appeal, the minor’s appellate counsel took the opposite position, stating in her combined brief that the minor communicated a desire to return under her mother’s care. Consequently, counsel for the minor’s mother filed no response to the combined brief since the minor was taking the same position as her mother. Following the submissions, the Court of Appeal affirmed the juvenile court’s earlier orders and included published sections explaining its reasons for publicly admonishing the minor’s appellate counsel. The appellate counsel filed a petition for rehearing directed at the Court of Appeal’s public admonishment. Although the Court of Appeal denied the rehearing, it deleted those sections of its earlier ruling that publicly admonished the appellate counsel but ordered her to show cause why she should not be publicly admonished.
In a previously published opinion, In re Felicity S. (2014) 225 Cal.App.4th 1389, the Court of Appeal, First District, Division Two, revisited its earlier order and discharged the order to show cause. The court determined that public admonishment was not appropriate for counsel’s failure to address the reasons FDAP sought her appointment or for her filing of an unhelpful brief. With regard to counsel’s complete reversal of the position taken by the minor’s guardian ad litem, without his consent, the court said the appropriateness of public admonishment was a “closer question.” However, the court determined that, on balance, public admonishment was not warranted.