1

Filed 7/20/23 Ochoa v. SPX Cooling Technologies CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

JO ANN OCHOA, et al.,

Plaintiffs and Appellants,

v.

SPX COOLING TECHNOLOGIES, 

INC., et al.,

Defendants and Respondents.

 A164054

 (Alameda County

 Super. Ct. No. 

RG20075699)

Daniel Ochoa (Ochoa), a former HVAC technician and pipefitter, 

passed away after contracting mesothelioma. He was married to plaintiff Jo 

Ann Ochoa and was the legal guardian of plaintiff Arianna Alyssa Huerta. 

Plaintiffs appeal from a summary judgment entered in favor of defendants 

Baltimore Aircoil Company (BAC), and SPX Cooling Technologies, Inc.

(SPX),

1 manufacturers of HVAC cooling towers. They maintain there are

triable issues of fact as to whether Ochoa was exposed to asbestos while 

working on BAC and Marley cooling towers. We affirm.

2

1 SPX is the successor-in-interest to Marley Cooling Tower Company

(Marley), which was acquired by United Dominion Industries, Ltd. (UDI) in 

1993. SPX acquired UDI in 2001.

2 Plaintiffs also appealed from the summary judgment entered in favor 

of Keenan Properties, Inc. (Keenan). They filed a notice of settlement as to 

Keenan on May 26, 2022, but no request for dismissal has been filed in this 
2

BACKGROUND

The Cooling Towers

Cooling towers “cool water from an industrial process, either an air 

conditioning system or some other kind of industrial process, where heat 

rejection is required.” Air enters through louvers on the outside of the 

towers. Hot water is sprayed out at the top of the tower over the “wet deck,”

which consists of stacked, corrugated material located on the inside of the 

towers. This cools the water, which is then collected in the bottom of the unit

and recirculated. 

Ochoa began working on cooling towers as an apprentice in the 1970’s. 

He recalled working on BAC and Marley cooling towers, but for the most part 

was unable to identify which brand he worked on at a particular site. Ochoa 

did not “know whether any cooling tower that [he] worked on at any time in 

[his] career contained asbestos.” 

Ochoa’s work involved cleaning and maintenance. He explained “if 

they called for us to go work on a cooling tower, we [had] to go and get it 

fixed, whatever it is. It [had] to be . . . [¶] . . . [¶] . . . repaired, fixed, cleaned, 

align belts, louvered, clean the louvers top and bottom, scrape it all off, all the 

particles on the towers, the [BAC] or the Marley Cooling Tower.” Ochoa 

testified “[e]very time we had to work on a cooling tower you would have 

dust.” After scraping the louvers of the cooling towers, he would “be 

breathing the product from these towers that . . . was, I guess, maybe fungus. 

It would be whatever is left on the towers[,] because of the chemicals they put 

in the water to keep the water as clean as possible.” Wet “mud” would get on 

court. Plaintiffs have raised no issues regarding Keenan in their briefing on 

appeal. 
3

his clothing, and he would let it dry before he scraped it off. The material 

came from both BAC and Marley cooling towers. 

BAC Cooling Towers

BAC manufactured louvered cooling towers beginning in the 1960’s and 

continuing through the 2000’s. The louvers were made of galvanized steel 

until the 1980’s and of fiberglass after that. BAC never manufactured cooling 

towers with louvers containing asbestos. It used galvanized steel for the 

outer casing of its towers, not asbestos-containing material. None of the fan 

bearings, fan blades, float valves or fan belts in BAC cooling towers contained 

asbestos. 

Between 1973 to about 1979, BAC manufactured some cooling towers 

with asbestos in the “wet deck.” The “wet deck” was located “entirely within 

the main compartment of the cooling tower” and was at least six inches from 

the towers’ exterior casing and louvers. The louvers could be accessed 

“without making any contact with the . . . wet deck contained in the interior 

of the cooling tower.” There were also “certain [BAC] cooling towers [that] 

utilized caulking and tape as sealants. The caulking and/or tape on some 

models may have contained asbestos.”

Ochoa could not recall whether he had ever dismantled or accessed the 

interior of a BAC cooling tower. He would “work[] on these towers that 

need[ed] to be scraped, remove the water or clean the sump or change the 

belts, oil them, lin[e] the bearings, make sure the shafts are straight, didn’t 

need to be replaced.” He may have assisted in installing a new BAC tower, 

but identified only work done on the outside of the tower. Ochoa could not 

recall any specific location where he believed he had worked on a BAC tower. 

BAC’s “person most knowledgeable” submitted a declaration stating

none of the work described by Ochoa on BAC towers “would involve any 
4

asbestos containing component or the disruption of any asbestos-containing 

component to perform.” The “scraping of the galvanized steel sides of a [BAC] 

cooling tower would not have resulted in the release of asbestos, and the 

material being scraped off the sides would have been a combination of 

calcium scale, particulate and biological matter pulled into the tower by the 

fan and/or accumulating in the recirculating water.” Similarly, any material 

Ochoa would have cleaned “from the sump pan at the bottom of the cooling 

tower would have been a combination of organic and sedimentary in 

nature. . . . There would not be any measurable amount of asbestos found 

within the material being cleaned out of the [BAC] sump pan.” 

Marley Cooling Towers

Marley has manufactured and erected cooling towers since the mid1930’s. Prior to the early 1950’s, it did not use asbestos-containing 

components in its cooling towers. In 1955, it “issued the first engineering 

specification authorizing the use of asbestos cement board (‘ACB’), in its 

towers for use as casing, louvers and decking.” Beginning in 1964, materials 

containing asbestos were also used in some “fill and . . . drift eliminators.” In 

March 1986, Marley stopped manufacturing asbestos-containing cooling 

towers and stopped supplying asbestos-containing spare parts. 

During the 1955–1986 time period, Marley also manufactured entirely 

asbestos-free cooling towers. The asbestos-free cooling towers had casing, 

louvers and fan decks composed of wood, glass-reinforced plastic, aluminum, 

or steel. The asbestos-free drift eliminators and fill were made of “wood, 

neoprene-coated non-asbestos containing kraft paper and/or plastic (‘PVC’).” 

When working on the Marley towers, Ochoa testified he would “clean 

them, maintain them, set the valves that need to be replaced, replace them, 

oil the bearings, replace bearings . . . [s]ometimes . . . the shaft will have to be
5

removed completely, rebuilt to accept the new fan belt, towers, whatever had 

to be replaced with the shaft that was attached to it.” To clean the cooling 

towers, Ochoa would scrape the louvers with a large putty knife on a long 

pole, power wash the tower’s fill, and clean mud out of the cooling tower’s 

sump pan at the bottom of the tower with a vacuum and putty knife. Ochoa 

testified the material he scraped off the louvers was “maybe fungus” or “mud, 

bacteria, whatever.” 

Work Sites

Ochoa identified the Huntington Library as a site where he worked on 

steam lines and “[p]ackage units, towers.”

3 SPX produced records showing a 

Marley cooling tower had been shipped to that site in 1956. The work Ochoa 

described at that site was all related to the package units and the steam 

lines. 

Ochoa also testified he worked on Marley and BAC cooling towers

during his time at WeatherRight, doing mechanical and cleaning 

maintenance. On the Marley cooling towers, Ochoa replaced valves, oiled 

bearings, replaced bearings, removed shafts for rebuilding, and possibly 

installed a new fan belt. 

The Summary Judgment Motion 

Defendants moved for summary judgment on the ground there was no 

evidence Ochoa was exposed to asbestos from their products as a result of his 

work. The trial court granted the motion and entered judgment accordingly.

As to SPX, the trial court stated “Plaintiffs have not shown that they 

have or can reasonably obtain evidence to show that [Ochoa] was exposed to 

3 Ochoa described package units as “like if you have a box, and 

everything is in . . . that box to function correctly. . . . A package unit is like 

if you have one room and you want to keep that room at a certain 

temperature, that’s a package unit that controls that room only.” 
6

asbestos-containing components on Marley cooling towers that he worked on. 

Nor is there evidence on this record that the type of work [Ochoa] performed 

would have inevitably caused him to be in contact with and exposed to 

asbestos dust from asbestos-containing components that might have been on 

Marley cooling towers that he worked on.” 

As to BAC, the trial court stated “while Plaintiffs have evidence that 

[Ochoa] worked on BAC cooling towers and that some BAC cooling towers 

had asbestos-containing components, Plaintiffs have not explained or

provided evidence showing that the work [Ochoa] performed on BAC cooling 

towers would have exposed him to asbestos. Plaintiffs have not shown how 

the maintenance, cleaning or repair described by [Ochoa] would have exposed 

him to asbestos from the fill, or that his work involved working on any 

asbestos-containing caulk or tape. As such, Plaintiffs have not raised a 

triable issue of facts as to threshold exposure on this record.” 

DISCUSSION

“ ‘On an appeal from an order granting summary judgment, we 

independently examine the record to determine whether there are any triable 

issues of material fact. [Citation.] In performing our review, we view the 

evidence in the light most favorable to plaintiffs as the losing parties, 

resolving any evidentiary doubts or ambiguities in their favor.’ (McGonnell v. 

Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1102 . . . (McGonnell).)”

(Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 251 (Shiffer).)

“In the context of a cause of action for asbestos-related latent injuries, 

the plaintiff must first establish some threshold exposure to the defendant’s 

defective asbestos-containing products, and must further establish in 

reasonable medical probability that a particular exposure or series of 

exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in 
7

bringing about the injury.” (Rutherford v. Owens-Illinois, Inc. (1997) 

16 Cal.4th 953, 982, fn. & italics omitted (Rutherford).)

Plaintiffs bear the burden of “ ‘ “demonstrating that exposure to . . . 

asbestos products was, in reasonable medical probability, a substantial factor 

in causing or contributing to [the] risk of developing cancer.” (Rutherford[, 

supra,] 16 Cal.4th [at pp.] 957–958. . . .) . . . “[Plaintiffs] cannot prevail . . .

without evidence [of exposure] to asbestos-containing materials 

manufactured or furnished by [a defendant] with enough frequency and 

regularity as to show a reasonable medical probability that this exposure was 

a factor in causing the plaintiff’s injuries.” [Citations.] “While there are 

many possible causes of any injury, ‘ “[a] possible cause only becomes 

‘probable’ when, in the absence of other reasonable causal explanations, it 

becomes more likely than not that the injury was a result of its action.” ’ ” ’ ”

(Shiffer, supra, 240 Cal.App.4th at p. 251.)

Defendants, as the parties moving for summary judgment, had the 

burden of showing that one or more elements of the plaintiffs’ causes of action 

could not be established. (Code Civ. Proc., § 437c, subd. (o)(1); McGonnell, 

supra, 98 Cal.App.4th at pp. 1102–1103.) The “ ‘party moving for summary 

judgment bears an initial burden of production to make a prima facie 

showing of the nonexistence of any triable issue of material fact; if [it] carries 

[its] burden of production, [it] causes a shift, and the opposing party is then

subjected to a burden of production of [its] own to make a prima facie 

showing of the existence of a triable issue of material fact.’ [Citation.]

Circumstantial evidence supporting a defendant’s summary judgment motion 

‘can consist of “factually devoid” discovery responses from which an absence 

of evidence can be inferred,’ but ‘the burden should not shift without 
8

stringent review of the direct, circumstantial and inferential evidence.’ ” 

(Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101.)

Plaintiffs maintain defendants did not meet their initial burden, 

asserting their discovery responses were not factually devoid of evidence of 

Ochoa’s exposure to asbestos in defendants’ products. 

Ochoa testified at his deposition he did not know if any cooling tower he 

worked on contained asbestos.4 Although he remembered working on both 

BAC and Marley cooling towers, he was generally unable to identify which 

brand of tower he worked on at a particular jobsite. He explained cooling 

towers “are practically all made the same, whether it’s Baltimore Cooling 

Tower or Marley. They all look alike, you know.” 

Ochoa testified he worked on BAC cooling towers scraping the louvers, 

cleaning the sump pan, changing and oiling the belts, lining the bearings, 

and making sure the shafts were straight. He may have assisted in installing 

a new BAC tower, but only identified work done on the outside of the tower. 

Neither Ochoa nor plaintiffs produced any evidence there was asbestos in the 

parts of the BAC towers on which Ochoa worked, or any evidence that the 

work about which he testified on the towers “involve[d] any asbestos[-

]containing component or the disruption of any asbestos-containing 

component. . . .” Although Ochoa testified his work scraping louvers on the 

cooling towers produced dust, neither he nor plaintiffs produced any evidence 

it was asbestos dust.

Moreover, BAC presented affirmative evidence that none of the work to 

which Ochoa testified would have resulted in his exposure to asbestos. This 

4 Generally, “[s]tatements made in a deposition govern and prevail 

over contrary declarations.” (Turley v. Familian Corp. (2017) 18 Cal.App.5th 

969, 976 (Turley).)
9

was principally provided by the declaration of David Hutton, its “person most 

knowledgeable,” as well as his “further declaration” submitted by BAC with 

its reply brief “to assist the Court with better understanding of two key 

components of a cooling tower: namely the louvers and the MNA wet-deck.” 

(Capitalization & underscoring omitted.) Plaintiffs objected that Hutton’s 

second declaration was “inappropriate for consideration,” citing San Diego 

Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316. That 

case recognized “[w]hether to consider evidence not referenced in the moving 

party’s separate statement rests with the sound discretion of the trial court, 

and we review the decision to consider or not consider this evidence for an 

abuse of that discretion.” (Ibid.) Because BAC submitted this declaration “to 

fill gaps in the original evidence created by the opposition,” plaintiffs have 

not demonstrated the trial court abused its discretion in overruling their 

objection and considering the declaration. (Los Angeles Unified School Dist.

v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 499.)5

5 At oral argument, counsel advanced a new argument as to why the 

trial court assertedly abused its discretion in allowing the Hutton 

declaration—because Hutton had been deposed as BAC’s person most 

knowledgeable but had prepared the declaration not as a person most 

knowledgeable but as an individual with personal knowledge about the 

construction and operation of BAC the cooling towers. According to counsel, 

this infringed plaintiffs’ “due process” rights because they never had the 

opportunity to depose Hutton as an individual with personal knowledge. 

However, plaintiffs forfeited this contention by failing to make it below or in 

their opening brief. “ ‘ “[D]efendant’s failure to make a timely and specific 

objection” on the ground asserted on appeal makes that ground not 

cognizable.’ ” (People v. Valdez (2012) 55 Cal.4th 82, 130; see People v. Carter

(2003) 30 Cal.4th 1166, 1201 [“Because defendant objected at trial . . . to the 

question . . . only on relevancy grounds, he forfeited the constitutional claims 

he now seeks to raise.”].) 
10

Ochoa also testified he “probably” worked on a BAC cooling tower 

during his time at LA Trade Tech and WeatherRight, doing mechanical and 

cleaning maintenance. He replaced valves, oiled bearings, replaced bearings, 

removed shafts for rebuilding, and possibly installed a new fan belt. But 

neither he nor plaintiffs produced any evidence those parts contained 

asbestos or that he was exposed to asbestos while working on those parts.

At oral argument, plaintiffs’ counsel focused on a health and safety 

study by BAC in the 1970’s that showed asbestos fibers were released in “the 

breathing zones of the workers.” Counsel asserted this permitted an 

“inference” that Ochoa was exposed to asbestos. However, Hutton’s 

uncontradicted deposition testimony explained this particular study was done 

at the BAC manufacturing facility, not at any post-manufacturing 

installation site, let alone a site where Ochoa worked. Furthermore, 

although plaintiffs had a full opportunity to question Hutton about the 

sources of the detected fibers reported in the manufacturing plant study, they 

asked no such questions. Accordingly, the record contains no evidence even 

as to the source of the fibers detected at the manufacturing plant.

As to Marley, neither Ochoa nor plaintiffs produced any evidence he 

worked on any Marley tower with asbestos-containing parts. Although some 

Marley towers during the relevant time period had asbestos-containing parts,

other Marley towers were asbestos-free.

SPX records showed a Marley cooling tower had been shipped in 1956 

to the Huntington Library in San Marino, a worksite Ochoa identified. But 

he further testified only about work on “steam lines” and “package unit[s],” 

not on a cooling tower at that site. Moreover, he testified the louvers on the 

cooling towers which he recalled scraping, and the fill he recalled washing,

were made of metal or wood. Again, neither Ochoa nor plaintiffs produced
11

any evidence those parts contained asbestos, or that the work Ochoa did on

those cooling towers would result in contact with asbestos.

The court in Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222,

considered similarly deficient discovery responses. In that case, the plaintiff 

“admitted that he did not know what materials contained asbestos and what 

materials did not. Rather, he assumed there was ‘probably asbestos in 

whatever they were cleaning up.’ He was unable to recall the name of any 

products used at the jobsites. [Plaintiff’s] deposition made clear that he had 

no knowledge about whether any of the products that others used or 

disturbed in his presence contained asbestos. Specifically, he was unable to 

give a definitive answer when asked if he had any information or knowledge 

that he was exposed to asbestos through the activities or inaction of 

[defendant].’ ” (Id. at p. 1229.) The responses “d[id] not state specific facts 

showing that [he] was actually exposed to asbestos and/or asbestoscontaining products due to [defendants’] activities. Rather, [his] answer[s]

assume[d], without any evidentiary support, that the dust and debris 

allegedly disturbed . . . contained asbestos.” (Id. at p. 1230, italics omitted.)

Thus, “[Defendant] met its initial burden of presenting evidence sufficient to 

make a prima facie case showing that triable issues of fact did not exist 

regarding causation. [Citation.] Therefore, the burden shifted to plaintiffs to 

establish a triable issue of fact regarding causation.” (Id. at p. 1231.)

Similarly in McGonnell, the plaintiff brought an action based on alleged 

exposure to asbestos-containing products while working at California Pacific, 

naming numerous defendants including Kaiser Gypsum and Kaiser Cement. 

(McGonnell, supra, 98 Cal.App.4th at p. 1100.) Plaintiff’s deposition 

testimony “showed [he] would cut into walls and disturb building materials

. . . [but there was] little evidence that [plaintiff] disturbed Kaiser products, 
12

and virtually no evidence he had disturbed Kaiser products containing 

asbestos.” (Id. at p. 1104.) Plaintiff’s evidence “suggest[ed] that Kaiser 

Cement products might have been used once on a construction project at 

California Pacific. There is no evidence, however, that these products 

contained asbestos at the time of their use. Deposition excerpts from a 

contractor and building materials supplier showed Kaiser Cement plastic 

(stucco) cement might have been delivered for use on a project at California 

Pacific in the late 1970’s. . . . [A]s defendants point[ed] out, plastic cement is 

applied to exterior walls for a stucco finish, and there was no evidence 

[plaintiff] worked with or around stucco.” (Id. at p. 1105.)

The McGonnell court concluded “It is not enough to produce just some 

evidence. The evidence must be of sufficient quality to allow the trier of fact 

to find the underlying fact in favor of the party opposing the motion for 

summary judgment. [Citation.] All that exists in this case is speculation 

that at some time [plaintiff] might have cut into a wall that might have 

contained Kaiser joint compound that might have contained asbestos. The 

evidence creates only ‘a dwindling stream of probabilities that narrow into 

conjecture.’ ” (McGonnell, supra, 98 Cal.App.4th at p. 1105.)

Similarly in this case, Ochoa did not testify he worked on any cooling 

towers that contained asbestos. As to the BAC towers, although there was 

evidence they contained certain asbestos-containing parts, the louvers and 

outer casings of the towers did not, and the work to which Ochoa testified 

would not have exposed him to asbestos. As to the Marley cooling towers, 

some contained asbestos components. But Ochoa testified he cleaned the 

louvers of the towers, and neither he nor defendants produced any evidence 

the louvers contained asbestos and cleaning would release asbestos dust. 
13

Indeed, he testified the louvers were made of “metal or wood” and the 

material he scraped off was “maybe fungus” and mud. 

Relying on Ganoe v. Metalclad Insulation Corp. (2014) 227 Cal.App.4th

1577 (Ganoe) and Turley, supra, 18 Cal.App.5th 969, plaintiffs claim they did 

submit sufficient evidence of Ochoa’s exposure to defendants’ asbestoscontaining products to raise a triable issue. Both cases are distinguishable.

In Turley, the plaintiff alleged he was exposed to defendant’s asbestoscontaining pipe products at three locations during his career. (Turley, supra, 

18 Cal.App.5th at pp. 971–972.) He also identified individuals with 

knowledge of this exposure, including his co-worker, Scott. (Id. at pp. 972, 

973–974.) Scott submitted a declaration stating he worked with plaintiff for 

about six years, that he was the person responsible for ordering and 

distributing materials, and that “ ‘when those products came in, . . . the 

packing slip, it listed the material, what it was. It also had the vendor name 

on it and [defendant’s] name was on those packing slips.’ ” (Id. at pp. 974–

975.) On “ ‘many occasions’ the replacement gaskets that [plaintiff] was 

exposed to while working . . . were asbestos-containing-and supplied by 

[defendant].” (Id. at p. 974.) The plaintiff also submitted “specific portions of 

Scott’s deposition” that “ ‘affirmed the statements in his declaration. . . .” (Id. 

at p. 975.) Scott further testified he had seen the plaintiff “ ‘pull a gasket,’ ” 

and observed him “ ‘in close proximity to different mechanics while working 

on these gaskets.’ ” (Ibid.)

The Court of Appeal reversed the summary judgment in favor of the

defendant, stating “Scott’s testimony established that [defendant]-supplied 

asbestos-containing gaskets were frequently used at [plaintiff’s] worksite 

throughout the five years that Scott was the person ordering, procuring, and 

distributing such products to the sites—and that [plaintiff] used them.” 
14

(Turley, supra, 18 Cal.App.5th at p. 981.) The record here is not remotely 

comparable.

In Ganoe, the plaintiff contracted mesothelioma after working in a

Goodyear Tire & Rubber Company plant from 1968–1979. (Ganoe, supra,

227 Cal.App.4th at p. 1579.) His initial discovery responses did not identify 

defendant Metalclad Insulation Corp. as a supplier. His “sole product 

identification witness” had “ ‘never heard of’ Metalclad,” and Metalclad’s 

“person most knowledgeable” submitted a declaration stating “ ‘Metalclad has 

no information, documents to suggest, or knowledge of having ever performed 

any work or supplied materials to be used at [Goodyear].” (Ibid.) However, 

after Metalclad filed its motion for summary judgment, it produced a newly 

discovered document showing it had “performed insulation work on steam 

piping at the Goodyear plant in 1974.” (Id. at pp. 1579–1580.) Thereafter, 

the plaintiff served amended discovery responses identifying a new machine 

installed at Goodyear in 1974 “which required ‘new steam pipes [] to be 

installed and insulated as well as tied into the existing insulated piping and 

machinery’ ” and the “ ‘removal of old insulation released in the air asbestoscontaining dust that . . . [plaintiff] breathed.’ ” (Id. at p. 1580.) The amended 

responses also stated the only work involving insulation performed in 1974 at 

the plant was “ ‘the work associated with the installation of the new Banbury 

and lay-down machines and associated piping’ ” and Metalclad “performed 

insulation work on steam piping in 1974 at the Goodyear plant.” (Ibid.) The 

trial court granted summary judgment, ruling the belatedly produced 

document “did not show that [Metalclad] had performed work in the vicinity 

of [plaintiff] as it did not identify ‘specific dates when, and locations within 

the plant where, the work occurred.’ ” (Id. at p. 1581.) Although a co-worker 
15

“saw ‘outside contractors’ perform insulation work,” the worker “did not 

identify Metalclad as one of those contractors.” (Ibid.) 

The Court of Appeal reversed, concluding Metalclad had not met its

burden. (Ganoe, supra, 227 Cal.App.4th at p. 1582.) The court first observed 

it was “unclear whether the trial court considered plaintiff’s amended 

response to Metalclad’s discovery when it made [its] determination,” and “[i]t 

would be inequitable to allow a moving party to withhold relevant discovery 

and then meet its burden on summary judgment without consideration of 

such newly discovered evidence or the opposing party’s response to that 

evidence.” (Id. at pp. 1582–1583.) The court further observed that, assuming 

the trial court properly considered the plaintiff’s amended discovery 

responses, this discovery contained specific facts showing Metalclad had 

exposed plaintiff to asbestos. (Id. at p. 1584.) Thus, the evidence 

“present[ed] more than mere speculation of causation”—“there was evidence 

Metalclad performed insulation work on steam piping at the Goodyear plant 

in 1974, that the only construction work requiring the installation of 

insulation at the Goodyear plant in 1974 occurred in Department 132 when a 

new Banbury machine and ‘lay-down machine’ were installed, that the 

installation of those machines also required the removal of old insulation, 

and that [plaintiff] worked in that department, was present during the repair 

of the steam lines’ insulation and breathed in the resulting dust.

Furthermore, according to plaintiff’s expert, it was more likely than not that 

the old insulation removed during this process contained asbestos. Viewed in 

its best light, this evidence supported a reasonable inference that plaintiffs 

could show causation.” (Id. at p. 1586, fn. omitted.) Again, the record in the 

instant case is not comparable.
16

Indeed, plaintiffs acknowledge their lack of production of evidence as to

which brand of cooling tower Ochoa worked on at specific sites and whether 

those cooling towers contained asbestos. But they claim, without legal 

citation, this is only relevant to “credibility and apportionment.” However, 

without the threshold evidence of exposure, there is nothing to apportion. 

Plaintiffs have not alleged market share liability,

6 and they do not explain

how Ochoa’s inability to identify the manufacturers of the towers on which he 

worked or whether they contained asbestos is relevant only to credibility.

In sum, there must be more than some evidence that plaintiff worked

on some cooling tower that might have contained an asbestos-containing part, 

without any evidence of asbestos exposure. But that is all the record 

evidence shows here.

DISPOSITION

The judgment is affirmed. Costs on appeal to respondents.

6 “ ‘ “ ‘Under this doctrine, the traditional prerequisite of identifying 

the manufacturer of the injury-causing product is eliminated when the 

product is a generic item produced by several manufacturers. In such cases, 

plaintiffs need only allege inability to identify the actual manufacturer and 

join as defendants those manufacturers that compose a “substantial share” of 

the market. . . . Th[e] theory shifts the burden of proof to each manufacturer 

to prove its innocence. . . . [¶] If . . . plaintiff successfully establishes liability, 

damages are simply apportioned among defendants on the basis of each 

defendant’s share of the product market. . . . A defendant can avoid liability 

only by proving that it did not produce the specific product that harmed the 

plaintiff.’ ” ’ ” (Ferris v. Gatke Corp. (2003) 107 Cal.App.4th 1211, 1215, fn. 

1.)
17

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Bowen, J.*

**Judge of the Contra Costa County Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.

A164054, Ochoa et al. v. SPX Cooling Technologies et al.