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 CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.,
Petitioners,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;
DEXTER HYSOL AEROSPACE, LLC,
Real Party in Interest. B248439
(Los Angeles County Super. Ct. No. BC492719) (JCCP No. 4674)

ORIGINAL PROCEEDINGS in mandate. Emilie Harris Elias, Judge. Petition granted.
Napoli Bern Ripka Shkolnik & Associ ates LLP and Rebecca A. Cucu for
Petitioners. No appearance for Respondent. Lewis Brisbois Bisgaard & Smith LL P, Jeffry A. Miller, Arezoo Jamshidi,
Caroline E. Chan and Arezou Khonsar i for Real Party in Interest.

_________________________2 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 allege dly was exposed to asbestos contained in Hysol adhesives and sealants manufactured by real party in interest Dexter Hysol Aerospace, LLC (DHA). On January 2, 2013, plain tiffs’ motion for trial prefer ence was granted. (Code Civ. Proc., § 36.) 2 The trial was schedule d for May 1, 2013. On March 7, 2013, plaintiffs noticed the deposition of DHA’s most knowledgeable person with the date of deposition set as March 19, 2013. DHA failed to provide its most knowledge able person to tes tify at deposition and did not produce the requested documents, by this means depriving plaintiffs of the opportunity to obtain evidence and material necessary to establish their allegations. Rather than timely responding to the di scovery requests, DHA filed a motion for summary judgment based on the contention th at plaintiffs had no evidence that the products manufactured, sold, or provided by DHA caused or contributed to Edward’s
terminal mesothelioma.

1 In the interest of clarity and for convenience, first name s of the plaintiffs will be used when referenced as individuals.

2 Statutory references are to the Code of Civil Procedure. Subdivision (a)(2) of section 36 provides for trial pref erence where: “The health of the party is such that a preference is necessary to prevent prejudici ng the party’s intere st in the litigation.”
Subdivision (d) of section 36 further prov ides: “In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes th at one of the parties suffer s 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 jus tice will be served by granting the preference.”3 Plaintiffs filed an ex parte application to require production of documents and to compel deposition of DHA’s most knowledgeable person. In a series of ex parte applications in wh ich plaintiff sought a definite date for the deposition, and DHA sought to delay the de position, counsel for DHA stated the only date on which DHA would produce its represen tative was Friday, April 26, 2013, a date two weeks after plaintiffs’ opposition to the summary judgment motion was due with only the weekend intervening before the date set for hearing on th e motion for summary judgment, Monday, April 29, 2013. By this means, plaintiffs were left w ithout a reasonable time period to review the deposition in a meaningful manner and prepar e a substantive response to the motion for summary judgment. The trial court permitted this delay in disc overy irrespective of the date for the hearing on DHA’s motion for summary judgme nt and the imminent trial date, set for Wednesday, May 1, 2013.
Plaintiffs then filed a motion to conti nue the motion for summary judgment 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 ma y 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 oppositi on response to the motion is due.” (Italics added.) A plaintiff must establish (1) threshol d exposure to a defendant’s asbestoscontaining products; and (2) a reasonable medical probability th at a particular exposure was more than a “negligible or theoretical” factor in causing his injury. ( Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 975-978.) Plaintiffs provided evidence that DHA had purchased 523 pounds of “asbestos, re sin-grade asbestos” but, in the absence of4 complete discovery, could not establish the manner in which DHA had used the asbestos after the initial purchase. Irrespective of this evidence and DHA’s failure to cooperate in discovery, the trial court without explanation denied the motion for a continuance and granted the motion for summary judgment. “ ‘[A] summary judgment is a drastic meas ure 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 st atute’s drafters included a provision making continuances—which are normally a matt er within the broad discretion of trial courts—virtually mandated . . . .” ( Ibid .; § 437c, subd. (h).) Where the opposing party s ubmits an adequate affidav it 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
such continuances are to be liberally granted.” ( Bahl v. Bank of America
, supra , 89 Cal.App.4th at p. 395.) On April 29, 2013, i rrespective of defendant’s obstr uction of plaintiffs’ timely efforts to obtain necessary and relevant evid ence, the trial court inexplicably granted DHA’s motion for summary judgment, stating plaintiffs had not provided evidence to support the contention that DH A was partially responsible for Edward’s exposure to
asbestos.
The court indicated that because the deposition of DHA’s most knowledgeable person had taken place on Friday, April 26 , 2013, “You had time for opposition.” The court informed plaintiffs’ counsel she could ha ve expedited the transcript of a deposition that had taken place only the one weekend befo re the hearing on th e summary judgment motion and provided it to the court prior to the hearing. The court commented, “You know what? I’m done. . . I understand you want a
continuance. You cannot have a continuance with your prefer ence. . . . If you want to get rid of your preference and you want to go out forever for trial, fine. But otherwise5 you have made a decision to go on short noti ce and we have to go on short notice. Because that is your right and that is what you’ve chosen to do.” Despite the trial court’s comme nts, the fact that plain tiffs are entitled to trial preference pursuant to section 36 3 and have a preferential tr ial date based on Edward’s
health cannot be a factor in the entry of an adverse summary judgment particularly where, as here, the primary cause of the delay in discovery was DHA’s delay in providing its most knowledgeab le person for deposition. On May 6, 2013, we notified the trial cour t and the parties of our conclusion that
the trial court had erred in its denial of plaintiffs’ request for a continuance and the granting of the motion for summary judgment ( Lewis v. Superior Court (1999) 19 Cal.4th 1232; Palma v

. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171) and directed the trial court to comply with the procedure established in Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, and reconsid er the order. The trial court failed to comply with the course of action set forth in Brown

. We have received opposition and a reply brief from the parties. Having complied with all procedural requirements ( Palma v

. U.S. Industrial Fasteners, Inc. , supra , 36 Cal.3d 171), and having de termined that plaintiffs’
“entitlement to relief is so ob vious that no purpose could reasonably be served by plenary consideration of the issue . . . .” ( Ng v. Superior Court (1992) 4 Cal.4th 29, 35), we
conclude the trial court abused its discreti on both in denying the re quest for continuance and in granting the motion for summary judgmen t. We therefore conclude this is an appropriate case for issuance of a perempto ry writ of mandate in the first instance. The petition for writ of mandate is granted.

3 Subdivision (f) of Code of Civil Proced ure section 36 provides: “Upon the granting of such a motion for pr eference, the court shall set th e matter for trial not more than 120 days from that date and there sha ll be no continuance be yond 120 days from the granting of the motion for prefer ence 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 con tinuance for physical disability may be granted to any party.” (Italics added.)6 DISPOSITION Let a peremptory writ of mandate issu e directing the respondent court to: (1) vacate the order granting summary judgment; (2) provide plaintiffs a 10-day period to prepare a substantive response to the summary judgment moti on and allow plaintiffs to incorporate the deposition of DHA’s most kno wledgeable person in to the opposition; (3) set a five-day period fo r DHA to file and personall y serve any further briefing supporting its motion; (4) set a date for hear ing the motion for summa ry judgment within 10 days thereafter, and (5) if the motion is denied immediately proceed to trial.
Plaintiffs 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.