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Filed 4/3/14 Lovelace v. Elementis Chemicals CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

JAMES A. LOVELACE, 

 Plaintiff and Appellant, 

 v. 

ELEMENTIS CHEMICALS, INC., as Successor in 

Interest, etc., et al., 

 Defendants and Respondents. 

C071503 

(Super. Ct. No. 

34201100104560CUASGDS) 

After being diagnosed with mesothelioma, James A. Lovelace sued numerous 

corporate defendants based on asbestos exposure sustained during his years of plumbing 

and construction work. Lovelace’s operative complaint alleged his mesothelioma was 

caused by a number of products, including joint compounds manufactured by GeorgiaPacific LLC (Georgia-Pacific) and Kaiser Gypsum Company (Kaiser) and containing 
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asbestos supplied by Elementis Chemical, Inc. (Elementis).1 Elementis moved for 

summary judgment by asserting Lovelace had no evidence to indicate Elementis supplied 

asbestos for any product to which Lovelace was exposed. Lovelace provided deposition 

testimony that he recalled seeing the Kaiser and Georgia-Pacific names on the joint 

compound containers he had used. Elementis objected to the evidence on grounds (1) 

Lovelace had not authenticated the documentary evidence purporting to show Elementis 

supplied the asbestos to Kaiser or Georgia-Pacific, and (2) Lovelace’s testimony about 

seeing the names of the manufacturers on the joint compound products was inadmissible 

hearsay. The trial court sustained both evidentiary objections and granted summary 

judgment in favor of Elementis. 

On appeal, Lovelace argues his deposition testimony identifying Kaiser and 

Georgia-Pacific products was not hearsay, fell within the “ancient document” exception 

to the hearsay rule, and belongs to a class of evidence for which a hearsay exception 

should be judicially created. 

Because Lovelace makes no argument regarding the alternative grounds on which 

the judgment granting summary judgment rests, we are compelled to affirm. 

DISCUSSION 

This court will not reverse a judgment for error by the trial court unless the 

appellant also demonstrates the error was prejudicial. (Cassim v. Allstate Ins. Co. (2004) 

33 Cal.4th 780, 800 (Cassim).) The California Supreme Court has explained, “Our state 

Constitution provides that ‘[n]o judgment shall be set aside, or new trial granted, in any 

cause, . . . for any error as to any matter of procedure, unless, after an examination of the 

 

1 Elementis’s liability was premised on its status as successor in interest to 

Harrisons and Crosfield (Pacific) Inc. Because the distinction between the two 

companies is not relevant to this appeal, we refer to the companies collectively as 

Elementis. 
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entire cause, including the evidence, the court shall be of the opinion that the error 

complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.) ‘The 

effect of this provision is to eliminate any presumption of injury from error, and to 

require that the appellate court examine the evidence to determine whether the error did 

in fact prejudice the defendant. Thus, reversible error is a relative concept, and whether a 

slight or gross error is ground for reversal depends on the circumstances in each case.’ (6 

Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 1, p. 443.)” 

(Cassim, at p. 800.) “ ‘[A] “miscarriage of justice” should be declared only when the 

court, “after an examination of the entire cause, including the evidence,” is of the 

“opinion” that it is reasonably probable that a result more favorable to the appealing party 

would have been reached in the absence of the error.’ ” (Ibid.) 

In granting summary judgment, the trial court stated the exclusion of Lovelace’s 

deposition testimony meant “Elementis has demonstrated that Lovelace has no evidence 

tethering his alleged injuries to the Calidria asbestos for which Elementis is responsible.” 

The trial court further noted: “However, even assuming that Lovelace’s evidence 

establishes that Elementis distributed the Calidria asbestos to Kaiser Gypsum and 

Georgia-Pacific, and further assuming that such evidence establishes that Calidria 

asbestos was an ingredient in the joint compounds to which Lovelace was exposed, there 

is no admissible evidence that Lovelace was exposed to Kaiser Gypsum joint compound 

or Georgia-Pacific joint compound with any frequency, regularity and/or proximity.” 

Lovelace does not contend the trial court erred in excluding for lack of 

authentication his evidence purporting to show Elementis supplied asbestos for the Kaiser 

and Georgia-Pacific products to which he was exposed. Thus, even if we agreed with 

Lovelace’s arguments about the exclusion of evidence on hearsay grounds, we would 

nonetheless be compelled to affirm based on the unchallenged exclusion of evidence for 
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lack of authentication.2 Lovelace’s claims against Kaiser and Georgia-Pacific cannot 

succeed without evidence of causation. Therefore, we must affirm the judgment. 

(Cassim, supra, 33 Cal.4th at p. 800.) 

DISPOSITION 

 The judgment is affirmed. Elementis Chemicals, Inc., shall recover its costs on 

appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).) 

 HOCH , J. 

We concur: 

 RAYE , P. J. 

 ROBIE , J. 

 

2 Even though Elementis argues this appeal must be dismissed for failure of 

Lovelace to demonstrate prejudice, Lovelace offers no response and has not filed 

a reply brief.