1 Filed 5/22/13 Scott v. Lennar CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

MARSAE SCOTT et al., Plaintiffs and Appellants,

v. LENNAR CORPORAT ION et al., Defendants and Respondents. A133890 (City & County San Francisco Super. Ct. No. CGC-08-274702)

Plaintiffs 1 appeal after the trial court gran ted separate motions for summary judgment filed by each of the three defendant s—(1) Lennar Corporation; Lennar-BVHP, LLC; Lennar Homes of California, Inc.; Lennar Associates Management, LLC; and Lennar Communities, Inc. (“Lennar”); (2) Gordon N. Ball, Inc. (“Ball”); 2 and (3) CH2M Hill (collectively “defendants”)—in plainti ffs’ tort action arising from their alleged exposure to hazardous substances in dust displaced by defendants duri ng the grading

1 The fifteen plaintiffs (collectively “plain tiffs”) who are parties to this appeal are Marsae Scott (a minor) throug h his guardian ad litem Sonj a Sawyer; Lavisa Bonner; Octavio Solozano; Adela Fl ores Balanos; Arshad Muhammad (a minor) and Azraa Muhammad (a minor) through their guardian ad litem Catherine Mu hammad; Pettrenelia Thomas; Madinah Muhammad (a minor) through her guardian ad litem Tonja Muhammad; Brooke Washington (a minor), Sahkari Washington (a minor), Amir Washington (a minor), and Anisa Washington (a minor) through their guardian ad litem Kim Washington; Samantha Si mon; Tariqu Muhammad (a mi nor) and Toniesha Byrd (a minor) through their guardian ad litem Anastasia Muhammad.

2 The complaint erroneously referred to defendant Ball as “Gordon N. Ball, Inc.— Yerba Buena Engineering & Construction, Inc.”2 phase of a redevelopment project. On appeal, plaintiffs challenge the trial court’s grant of summary judgment, arguing that triable issues of material fact exist regarding
causation as to all claims. We shall affirm the judgments.
PROCEDURAL BACKGROUND On June 19, 2008, eighteen plaintiffs filed a complaint for damages against Lennar, Ball, and CH2M Hill. 3 The complaint included causes of action for public nuisance, negligence (environmental racism), intentional and neg ligent infliction of emotional distress, and battery. The plaintiffs alleged that they were injured by dust containing naturally occurring as bestos, which became airborne as a result of defendants’ grading-related activities on a parcel of land in San Francisco. They further alleged that they had suffered various physical symptoms from the asbestos, including headaches, red eyes, bronchitis and other resp iratory problems, sinus infe ctions, nosebleeds, cardiac pain, and skin rashes. In May 2011, each of the three defenda nts filed separate motions for summary judgment. On August 30, 2 011, the trial court granted Ba ll’s summary judgment motion and, on September 8, 2011, the court granted Lennar’s and CH2M Hill’s summary judgment motions. On November 4, 2011, plaintiffs filed a notice of appeal.
FACTUAL BACKGROUND
Defendant Lennar was the master develo per for a redevelopment project at the Hunters Point Naval Shipyard in San Francisco. The land at the shipyard is divided into six parcels, including “Parcel A,” the northe rnmost parcel. Parcel A, which was the location of the redevelopmen t project, is on a hilltop comprised of soil and rock, including serpentine. Serpentine contains natu rally occurring asbestos, as well as arsenic, iron, manganese, and nickel. In 1992, the Navy began environmenta l testing and cleanup

3 Fifteen of those eighteen plaintiffs are parties to this appeal.3 at the site, which con tinued for more than 10 years un der the oversight of the United States Environmental Protection Agency (“EP A”) and other regulators. In 2004, the regulators agreed with the Navy’s conclusion th at all necessary remedial actions had been taken “to protect human health and the environm ent prior to property transfer.” Parcel A
was therefore deemed suitable for unr estricted residential use. Nevertheless, because of the presence of naturally occurring asbestos in the serpentine rock beneath Parcel A, the San Francisco Departme nt of Public Health (DPH) required Lennar to prepare an asbestos dust mitigation plan, which included daily monitoring of asbestos levels. This pl an was approved by th e Bay Area Air Quality Management District. Lennar also prepared a dust control plan, which was designed to
ensure that dust emitted into the air from soil grading activ ities would not exceed certain levels. This plan was approved by the DPH.
Lennar contracted with defendant Ball to provide soil-grading services and with defendant CH2M Hill to prov ide air monitoring during the gr ading phase of the project. Significant earth-moving activitie s began on Parcel A on appr oximately April 25, 2006 and grading began on approximately May 23 , 2006. In August 2006, CH2M Hill reported to Lennar that it had discovered prob lems with its air monitoring data. Lennar then hired another company to monitor for airborne asbest os, from August 2006 until the grading ended in October 2007. However, as a result of CH2M Hill’s monitoring problems, no measurement of asbestos in th e air was available from April 2006 through July 2006. Numerous independent studies and reports were prepared regarding public health risks resulting from possible exposure to natu rally occurring asbestos during the grading of Parcel A. All of these reports concluded th at the public was not at risk of harm due to
the release of asbestos dust from Parcel A. 4

4 We will discuss these reports in more depth in part II of the Discussion, post

.4 DISCUSSION
I. Summary Judgment Rules and Standard of Review A motion for summary judgment “shall be granted if all the papers submitted
show that there is no triable issue as to a ny material fact and th at the moving party is entitled to a judgment as a matter of law.” (Code of Civ. Proc. § 437c, subd. (c).) 5 A defendant moving for summary judgment has the initial burde n of showing either that
one or more elements of the cause of action cannot be established or that there is a complete defense. (§ 437c, subd. (p)(2).) If th at initial burden is met, the burden shifts to the plaintiff to show the existe nce of a triable issue of fact with respect to that cause of action or defense. ( Ibid ; see Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 850–853 ( Aguilar ).) “ ‘ “[W]e take the facts from the record that was before the trial court when it ruled on that motion,” ’ and ‘ “ ‘ “review th e trial court’s decision de novo, considering
all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.” ’ ” ’ [Citations.]” ( Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.) We vi ew the evidence in the li ght most favorable to the plaintiffs and we “ ‘liberally construe’ ” plai ntiffs’ evidence and “ ‘str ictly scrutinize’ that of defendants ‘in order to resolve any evid entiary doubts or ambigu ities in [plaintiffs’] favor. [Citation.]’ [Citation.]” ( Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335 ( Miranda ).)
II. Trial Court Background
Plaintiffs in this case are adults who e ither lived or worked near Parcel A and
minors who either lived or atte nded school near Parcel A.

5 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.5 In support of their motions for summary judgment, defendants submitted declarations from two physicians, Dr. Michae l Fischman and Dr. Thomas Allems, both of whom are experts in occupational and enviro nmental medicine and toxicology. They each performed “Independent Medical Examinations” on and reviewed the medical records of all plaintiffs who made th emselves or their records available. 6 They also
reviewed relevant environmental and environm ental health reports related to the grading
of Parcel A. Both doctors concluded: (1) th e plaintiffs’ various ailments were neither caused nor exacerbated by exposure to asbestos , and (2) none of the plaintiffs suffer from asbestosis, asbestos-related lu ng disease, mesothelioma, or any other illness related to asbestos exposure. In support of its summary judgment motion, CH2M Hill also submitted the declaration of Dr. David Weill, an associat e professor in pulmonary and critical care
medicine at Stanford Univer sity Hospital, who had review ed the plaintiffs’ medical
records. Dr. Weill concluded that none ofthe plaintiffs suffered from any asbestosrelated disease, process, or condition. In addition, defendants s ubmitted various independent studies and reports that addressed the possible health ri sks from the release of airborne asbestos from Parcel A. For example, in February 2007, Arc Ecology, a nonprofit public interest organization that provides environmental technical advice and support to environmental justice communities and local governments on the clea nup and reuse of closed military facilities, issued a report following an investigation of allegations regarding possible health threats
from asbestos dust at the Parcel A site. The report concluded that, while Lennar had experienced ongoi ng difficulties complying with the asbestos and dust control plan, “there is currently no evidence that Asbest os from the grading operation on Parcel A

6 Plaintiff Dom’Monique Green refused to appear for an examination and plaintiffs Amir Washington and Toneisha Byrd did not pr ovide any medical records to defendants.6 poses an endangerment to hum an health and the environment ” and expressed skepticism “about claims that asbestos pollution from th ese operations is harming nearby residents
and students at the Muslim University Institute (MUI).” 7 (Bold omitted.) Also in February 2007, the DPH hired private contractors, including Treadwell & Rollo, Inc., an environmental consulting fi rm, which issued a re port evaluating the potential for community exposure to airborne asbestos near the Parcel A grading operation. Based on an analysis of the asbe stos air sampling data, the predicted “worst case average exposure levels” during the entir e period of grading was a total of 5,403 asbestos structures per cubic meter. Tread well & Rollo noted that the Bay Area Air Quality Management District requires work suspension wh en asbestos levels reach 16,000 structures per cubic meter, based on th e increased likelihood (an increased risk of 1 in 10,000) of an individual getting asbest os-related cancers if exposed to this level continuously for a 70-year period. In June 2007, the DPH i ssued a report discussing the dust control issues and reviewing data on the possible health effect s of dust from Parcel A. The report concluded: “All of the analysis conclude s that given the limited exposure periods and
levels that have occurred at the Shipyard, there is no medical or scientific evidence that dust from naturally occurring asbestos generate d from the grading operations on Parcel A poses an endangerment to human health. Ev en if ‘worst case’ assumptions are made about the period when Lennar’s asbestos air monitors were not functioning during the summer of 2006, . . . there was no significant risk to human health.” The report also
discussed misstatements made about dust cont rol issues, and described the claim that the “community is being blasted by poisonous dust” as “probably the most egregious misstatement. [L]eading scie ntists from various areas of expertise have all concluded

7 The report did contain a recommendatio n to temporarily move students from MUI to another location due to “the potential impact of dust on the short term well being of students . . . .” (Bold omitted.)7 that it is highly unlikely that construction dust from Lennar’s construction activities poses any long-term or serious health risks, given the levels, types and duration of exposure to naturally occurring asbestos.” In September 2007, Dr. John Balmes, a prof essor of medicine at the University of California, San Francisco, and chief of th e Division of Occupatio nal and Environmental Medicine at San Francisco General Hospital, reported the results of his evaluation, undertaken at the request of leaders of th e Bayview-Hunters Poin t community, regarding possible health risks from asbestos dust from Parcel A. Dr. Balmes agreed with DPH “that it is highly unlikely that exposure to naturally occurring asbestos from grading operations at Parcel A will create a significant risk to human health in the community.” He further stated: “While it is important th at we remain mindful of and responsive to community health concerns, and their possible link to the neighborhood environment, it is also important that we not improperly attribut e the cause of these health concerns to the recent grading activities at the Shipyard. I believe that the health problems that the community is experiencing are likely cause d by events and circumstances that are
unrelated to Lennar’s construc tion activities at Hunter’s Po int Shipyard. Many of the health concerns predate construction and invol ve symptoms that are not associated with exposure to naturally occurring asbestos.” In June 2010, after evaluating the projec t’s dust control measures and people’s possible exposure to dust containing naturally occurring asbestos in the area near Parcel A, the EPA issued a report in which it concluded that the potential risks “were within EPA’s defined acceptable ri sk range” and stated that its “results confirm previous conclusions by the Air District, the San Franci sco Department of Public Health, and the California State Department of Public Health that the daily monitori ng results are within acceptable risk levels.” In their opposition to the motions for summary judgment, plaintiffs for the first time alleged that their injuries were caused by “exposure to toxic dust,” stating in a8 footnote that the complaint had referred “to th e toxic dust generally as asbestos dust. Prior to discovery, it was the only known toxic substance in the dust.” In support of their oppo sition to the motions for summary judgment, plaintiffs submitted a portion of the “Hunters Point Shi pyard Parcel A Enviro nmental Issues And Hazardous Materials Report” to show that to xic “components were found in the soil and
air at Parcel A.” The trial court sustained defendants’ objections to this evidence on the grounds of lack of foundation, lack of personal knowledge, and hearsay. In addition, plaintiffs submitted printouts of fact sheets from the website of the Centers for Disease Control and Prevention (CDC), which described possible health effects associated with exposure to components found in the soil of Parcel A. The trial court also sustained defendants’ objections to this evidence on th e grounds of lack of foundation, lack of personal knowledge, and hearsay. In addition, plain tiffs referred to excerpts from the deposition testimony and reports of defendants ’ two experts, in which they spoke about the possible health effects of dust and certain other substances. Plaintiffs also submitted portions of the deposition testim ony of Jeffrey Austin, former division environmental manager for Lennar, who testified that Lennar received a
number of notices of violati on of the dust control plan during the grading process for, inter alia, inadequate dust co ntrol and for dust crossing pr operty lines. Lennar also
received a notice of violation fo r CH2M Hill’s failures to m onitor, for which Lennar paid a $587,000 fine. 8 In supplemental declarations in supp ort of defendants’ motions for summary judgment, filed after plaintiffs raised “toxi ns” as a cause of thei r symptoms in their

8 Lennar filed an unrelated lawsuit agains t CH2M Hill regarding the lapse in data collection. Plaintiffs and CH 2M Hill argue about the admiss ibility of evidence of that lawsuit in this case. We need not resolve this questio n of admissibility because the evidence is not relevant to resolu tion of the issues before us. We also observe that the failu re to monitor related only to asbestos . No monitoring for other toxins was required or performed.9 opposition to summary judgment, Dr. Fischm an and Dr. Allems each concluded: (1) there was no reasonable medical probability th at any of the plaintiffs were exposed to
toxins—includi ng pesticides, abrasive blast materials, beryllium, arsenic, iron, chromium, manganese, nickel, total petroleum hydrocarb ons, benzo (a) pyrene, semi-volatile organic compounds, polynuclear aromatic hydrocarb ons, lead based paint, polychlorinated biphenyls, formaldehyde, asbestos containi ng material—from Par cel A’s soil in an amount sufficient to cause a toxic injury; (2 ) there was no reasonable medical probability that the plaintiffs had suffered a toxic injury from any of these materials; (3) there was no reasonable medical probability th at the symptoms described by the plaintiffs were caused by toxins from Parcel A’s soil or its conten ts; and (4) there was no reasonable medical probability that the pl aintiffs would suffer from a toxic injury in the future due to exposure to Parcel A’s soil or its c ontents during the gr ading activities. In granting summary judgment, the court found, as to the causes of action for negligence, battery, and neglig ent and intentional infliction of emotional distress, that plaintiffs had “failed to create triable issues of fact as to exposure to asbestos, exposure to other toxins, and a causation of injuries resu lting from any such exposure.” The court further found, as to the negligent and inten tional infliction of emotional distress causes of action, that an “unfounded fear does not create a triable issue of fact.” In addition, as to the public nuisance cause of action, the court found that plaintiffs had “failed to present any evidence of the presence of asbestos lade n dust and that the levels, if any, were injurious to their health . There is, therefore, no triable i ssue of fact as to causation.” The court also denied plaintiffs’ oral motion, made at the summary judgment hearing to amend their complaint to allege injury from other “toxic dust” in addition to asbestos.
III. Sufficiency of the Complaint and Timeliness of the Motion to Amend the Complaint Plaintiffs contend the trial court impr operly denied their motion to amend the complaint, made orally at the hearing on defendants’ summary judgment motions. (But10 see, e.g., Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175–176 [affirming denial of plaintiffs’ un timely oral motion to amend the complaint made at hearing on defendant’s summary j udgment motion].) Plaintiffs further contend the court erred when it found the allegations of the complaint insufficie nt due to failure to specify the toxins alleged to have caused their injuries. (But see Bockrath v. Aldrich
Chemical Co. (1999) 21 Ca l.4th 71, 80 ( Bockrath ) [plaintiff must a llege in complaint “that he was exposed to each of the toxic materials claimed to have caused a specific illness”].) We need not definitively decide whether th e court’s findings on these two
issues were correct because we co nclude, as discussed in part IV, post , that summary judgment was properly granted in favor of all defendants on the ground that plaintiffs
failed to show the existence of a triable issue of material fact as to causation for any of their causes of action, whether we consider th e alleged exposure to be to asbestos, to other toxins, or to both. (See Aguilar , supra , 25 Cal.4th at pp. 850–853.)
IV. Causation
Plaintiffs contend the trial court erred when it granted summary adjudication as to each cause of action on the ground that they had not raised a tr iable issue of material fact regarding causation.
“ ‘ “Causation” is an essential element of a tort action. Defendants are not liable unless their conduct . . . was a “legal caus e” of plaintiff’s injury. [Citations.]’ [Citation.]” ( Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 696 ( Whiteley ).) In Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982–983, fn. omitted ( Rutherford ), our Supreme Court explained, in the context of asbestos-related latent injuries, the plaintiff’s burden of prov ing causation: “[T]he plaintiff must first
establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish a reasonable medical probability that a particular exposure or series of ex posures was a ‘legal cause ’ of his injury, i.e., a substantial factor in bringing about th e injury.” (Accord Whiteley , supra , 117 Cal.App.4th at p. 69811 [applying Rutherford’s burden of proof to causation in a toxic tort context].) “The law is well settled that in a personal injury action ca usation must be proven within a reasonable medical probability based upon competent expert testimony.” ( Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402–403 ( Jones ); accord, Bockrath , supra , 21 Cal.4th at p. 79.) In the present case, all of plaintiffs’ causes of action requir e proof of causation. 9

One of the elements of a cause of ac tion for negligence is causation. ( Miranda , supra , 187 Cal.App.4th at p. 1335.) To avoid summa ry adjudication on th eir negligence claim, plaintiffs had to raise a triable issue of fact as to, inter alia, whether defendants’ actions were “ ‘ “ ‘the proximate or legal caus e of the resulting injur[ies].’ ” ’ ” ( Ibid .) Causation is also one of the elements of civil battery. ( Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526–527.) Therefore, to avoid summary adjudication on their battery claim, plaintiffs were required to rais e a triable issue of fact as to, inter alia, whether defendants “intentionally performed an act that resulted in a harmful or offensive contact with [each] plaintiff’s person” and that “the harmful or offensive contact caused injury, damage, loss, or harm to [each] plaintiff.” ( Ibid .) To succeed on a public nuisance cause of action, a plaintiff must also prove causation. ( Birke v. Oakwood
Worldwide (2009) 169 Cal.App.4th 15 40, 1548.) Thus, to a void summary adjudication on their public nuisance claim, plaintiffs had to raise a triable issue of fact as to, inter alia, whether they “suffered harm that was diffe rent from the type of harm suffered by the general public” and whether defendants’ “con duct was a substantial factor in causing [each plaintiff’s] harm.” ( Ibid .) 10

9 We will assume, solely for purposes of deciding whether plaintiffs have raised a triable issue of fact regarding causation, th at all defendants are similarly situated and would be similarly liable for damages, despite the fact that their roles in the grading of Parcel A were distinct.

10 Plaintiffs assert, for the fi rst time on appeal, that eviden ce of physical injury is not required for them to succe ed on their public nuisance a nd battery claims. Given that12 To succeed on a claim of negligent inflicti on of emotional distress, a plaintiff who alleges that he or she suffered a personal inju ry can only recover “for emotional distress resulting from a personal injury directly caused by the defendant’s tortious conduct.” ( Erlich v. Menezes (1999) 21 Cal.4th 543, 555, discussing Potter v. Firestone Tire &
Rubber Co. (1993) 6 Cal.4th 965 ( Potter ).) Hence, to avoid summary adjudication on their negligent infliction of emotional distress cl aim, plaintiffs had to raise a triable issue of fact as to, inter alia, whether their inju ries were caused by defendants’ allegedly negligent activities related to the grading of Parcel A. Finally, to succeed on an
intentional infliction of emotional distress clai m, a plaintiff must prove that his or her “fear of cancer is reasonable, that is, that the fear is based upon medically or scientifically corroborated knowledge that the defendant’s conduct has significa ntly increased the plaintiff’s risk of cancer and that the plainti ff’s actual risk of th e threatened cancer is significant.” ( Potter , supra , 6 Cal.4th at p. 1004.) To avoid summary adjudication on
their intentional infliction of emotional distre ss claim, plaintiffs therefore had to raise a triable issue of fact as to, inte r alia, whether they were in fact exposed to toxins that have “significantly increased” their risk of future cancer or similar illness. ( Ibid .) 11

the allegations in the compla int and the arguments in oppos ition to defendants’ summary judgment motions regarding these two causes of action all involved claims that they had suffered physical harm, we will not address this new assertion. (See People v. Saunders (1993) 5 Cal.4th 580, 589–590.) We also note that, regardless of the type of injury alleged, causation must still be proven as to all causes of action alleged, including the public nuisance and battery claims.

11 Plaintiffs observe that there is an excep tion to the requirement that a plaintiff in a toxic exposure case satisfy the “more likely than not” threshold for fear of cancer recovery to prove emotional distress where “t he plaintiff pleads and proves that the defendant’s conduct in causing the exposure amounts to ‘oppression, fraud, or malice’ as defined in Civil Code section 3294, wh ich authorizes the imposition of punitive damages.” ( Potter , supra , 6 Cal.4th at p. 998.) That exce ption is of course not relevant here unless plaintiffs can raise a triable issu e of fact regarding th e exposure element of causation.13 In support of their summary j udgment motions, defendants submitted the declarations of their two experts, Dr. Fi schman and Dr. Allems, each of whom had
examined and reviewed the medi cal records of all plaintiffs who had made themselves or their records available, and had also reviewed environmental and environmental health reports related to the grading of Parcel A. Both doctors concluded th at plaintiffs’ various
ailments were neither caused nor ex acerbated by exposure to asbestos, 12 and that none of the plaintiffs suffer from asbestosis, asbestos-r elated lung disease, mesothelioma, or any other illness related to asbestos exposure. CH2M Hill’s expert, Dr. Weill, also concluded that plaintiffs did not suffer from any asbestos -related diseases or conditions. In addition, numerous reports issued by various government al agencies and others concluded that the grading of Parcel A had not caused the rel ease of harmful amounts of asbestos into the
air. As to the later-alleged toxic dust cl aims, both Dr. Fischman and Dr. Allems concluded there was no reasonable medical pr obability that any of the plaintiffs were exposed to any toxins from Parcel A’s soil in an amount sufficient to cause a toxic injury, that the plaintiffs had suffered a toxic inju ry from any of these materials, that the symptoms described by the plaintiffs were ca used by toxins from Parcel A’s soil or its contents, or that the plaintiffs would suffer fro m a future toxic injury due to exposure to
Parcel A’s soil or its contents during the grading activities. All of this evidence negating causation pl ainly satisfied defendants’ initial burden of showing that one or more elements of plai ntiffs’ claims could not be established. The burden therefore shifted to plaintiffs to raise a triable issue of material fact as to whether

12 Plaintiffs are thus incorrect when they assert that the medical examinations focused only on “seeking out signs of cancer or lung related disease.” Dr. Fischman and Dr. Allems explicitly addressed whether exposu re to asbestos had caused or exacerbated plaintiffs illnesses.14 they were exposed to t oxic dust from Parcel A 13 and whether that dust caused their illnesses. (See § 437 c, subd. (p)(2).) “When the moving party produces a compet ent expert declaration showing there is
no triable issue of fact on an essential el ement of the opposing party’s claims, the opposing party’s burden is to produce a comp etent expert declaration to the contrary. [Citations.]” ( Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761–762; see also Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1385 [“In Califor nia, causation must be founded upon expert test imony and cannot be inferred from the jury’s consideration of the totality of the circumstances unless those circumstances include the requisite expert testimony on causation”]; Jones , supra , 163 Cal.App.3d at pp. 402–403 [causation must be proven within a reas onable medical probability based upon competent expert testimony ].) Expert testimony is particularly impor tant in toxic tort cases such as this one, which presents “ ‘complicat ed and possibly esoteric medial causation issues . . . .’ ” ( Whiteley , supra , 11 Cal.App.4th at p. 699.) Here, plaintiffs did not s ubmit any expert declarations in opposition to defendants’ experts’ declarations and other evidence that showed no risk of toxi c exposure or illness due to the grading activities at Parcel A. In stead, to demonstrate exposure to the various toxins, plaintiffs relied on the “Hunters Poin t Shipyard Parcel A Environmental Issues And Hazardous Materials Report.” That repo rt, however, explains that the Navy had performed remedial activities at Parcel A, including excavation to a depth of two feet below ground surface, with th e excavation backfilled with clean soil. While the non-

13 Plaintiffs assert that defendants did no t challenge their claim that they were exposed to asbestos and other toxic dust. To the extent th at Lennar did not challenge exposure in its initial motion, that concession related only to asbestos, not to the toxic dust plaintiffs subsequently claimed caused their injuries. Moreov er, no other defendant conceded the exposure element. Plaintiffs mu st raise a triable issue of fact as to the exposure element of causation to survive summary judgment. (See Rutherford , supra , 16 Cal.4th at pp. 982–983.)15 excavated soil still contained low levels of pesticides, motor oil, beryllium chromium, manganese, and nickel, the report found that “the potential for migration of these
chemicals to air and surface water was cons idered insignificant because of the clean backfill placed in the excavation. [¶] All appr opriate regulatory agen cies determined that no further action was necessary at this site” and the land was approved for unrestricted residential use. Thus, even assuming the re port was admissible, it actually undermines plaintiffs’ contention that they were exposed to a dangerous level of those toxins in the form of dust from Parcel A. (See Rutherford , supra , 16 Cal.4th at pp. 982–983.) In addition, plaintiffs’ reliance on the deposition testimony of Lennar employee Jeffrey Austin, who testified about notices of violation of the dust control plan Lennar received during the grading proce ss, does not demonstrate that these plaintiffs were exposed to a dangerous level of toxic dust. (See Rutherford , supra , 16 Cal.4th at pp. 982–983.) Indeed, plaintiffs did not submit any admissible evidence regarding their exposure to toxic dust. Rather, plaintiffs’ c ounsel merely states in his opening brief that “toxic dust consistently blanketed Plainti ffs’ persons and propert y during the grading work at Parcel A, entering Plaintiffs’ eyes , mouths, noses, and covering their skin.” Counsel’s statement plainly is not sufficient to raise a tr iable issue of fact as to

exposure. 14 To show that exposure to the various toxins caused their illnesses, plaintiffs submitted the CDC fact sheet printouts regardi ng possible health eff ects associated with exposure to the toxins allegedl y found in the soil at Parcel A. Once again, even assuming

14 At oral argument plaintiffs’ counsel st ated that certain pages in Appellants’ Appendix contained evidence of plaintiffs’ e xposure to toxic dust. In the cited pages, which are part of plaintiffs’ opposition to CH2M Hill’s summa ry judgment motion, plaintiffs merely restate their assertions related to CH2M Hill’s failure to properly monitor for dust and their claim that dispersi on of dust into the atmosphere affected the surrounding community. Such general allegati ons do not satisfy plaintiffs’ burden of raising a triable issue of fact as to each plai ntiffs’ exposure to dangerous levels of toxic dust.16 that the printouts were admissible evidence , they are not helpfu l to plaintiffs’ case because they merely show that exposure to these substances at a sufficient level could cause illness in the general population. This ev idence is wholly spec ulative in that it does nothing to show that these particular plaintiffs were exposed to these particular toxins in
an amount sufficient to cause illness or that th e toxins were a substan tial factor in causing
their illnesses. (See Rutherford , supra , 16 Cal.4th at pp. 982–983; see also Jones , supra , 163 Cal.App.3d at p. 403 [“There can be ma ny possible ‘causes,’ ” of an injury, but a “possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the in jury was a result of [the defendant’s] action”].) Finally, plaintiffs attempt to use isol ated language from defendants’ experts’ deposition testimony to raise a triable issue of fact as to causation does not succeed in doing so. For example, in his deposition, Dr. Fischman testified that soil containing a high concentration of arsenic in industrial settings “may be a problem,” that nickel can uncommonly cause asthma “with high-dose expo sure in industrial settings,” and that dust, “at sufficient dose,” could exacerbate cer tain conditions. Plaintiffs also cited Dr. Allems’s deposition testim ony, in which he stated that, potentially, “under certain conditions,” soil dust could dry someone’s nose enough to ca use bleeding or exacerbate asthma. He further testified that the primar y health effects of exposure to dust “when dust levels were high and so mebody had low tolerance for it, ” were “really limited to mucus membrane . . . irritant sy mptoms.” Plaintiffs’ selectiv e use of defendants’ experts’ testimony suggests, at best, the possibility that exposure to dust can cause minor, transient symptoms and that ex posure to high levels of certain compounds can cause or exacerbate certain conditions. To extrapolate from that evidence that the allegedly toxic17 dust in this case caused plaintiffs’ i llnesses is pure speculation. (See Jones , supra , 163 Cal.App.3d at p. 403.) 15 In sum, plaintiffs’ eviden ce, which lacks competent expe rt testimony or any other evidence showing causation, failed to raise a triable issue of fa ct as to whether (1) any of these plaintiffs were exposed to particular t oxins in the dust from Parcel A at sufficient levels to cause harm, and (2) that toxic dust was a substantial factor in any of plaintiffs’ illnesses. (See Rutherford , supra , 16 Cal.4th at pp. 982–983; see also Jones , supra , 163 Cal.App.3d at pp. 402–403.) 16 Because plaintiffs did not satisfy their bur den of raising a triable issue of material fact as to causation on any of their causes of action, the trial court properly granted

15 Plaintiffs, for example, point to pa ssages in Dr. Allems’s report regarding plaintiff Adela Flores Balanos, in which he stated that ai rborne dust from the grading “may have played a role in some of her asthma symptoms during that time (although her baseline asthma activity is not documented due to the pauc ity of medical records).” Dr. Allems concluded that the “extent of the potential health effects from airborne soil dusts in these circumstances is essentially lim ited to transient mucous membrane irritant symptoms during the period of suspect exposu re. She has not sustained a toxic injury. There are no asbestos issues of concer n.” The statement that dust alone “may have” temporarily aggravated this plaintiff’s asthma symptoms does not rais e a triable issue of fact in this toxic tort action as to causati on, which must be proved “within a reasonable medical probability based upon competent expert testimony.” ( Jones , supra , 163 Cal.App.3d at pp. 402–403.)

16 In their reply brief, plaintiffs assert in a conclusory manner that the trial court “completely disposed of both the Negligence and [intenti onal infliction of emotional distress] claims without mention of the envi ronmental racism allegation [alleged in the complaint] or a challenge ther eto. [Plaintiffs] need not pr ove that they were harmed by ‘dust,’ [‘]asbestos dust,’ or, arguendo, asbest osis, to present a claim of Negligence or [intentional infliction of emotional distress cl aims] resulting from envi ronmental racism.” In addition to having failed to raise th is point in their opening brief [see Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 Cal.App.4th 1061, 1072 [points raised for the first time in reply brie f will generally not be c onsidered]), plaintiffs cite no authority in support of this asse rtion, and we will not consider it. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App. 4th 814, 830 [trea ting contentions not supported by “cogent legal argument or citation of authority ” as waived].)18 summary judgment in favor of all defe ndants. (See § 437c, subd. (p)(2); Aguilar , supra , 25 Cal.4th at pp. 850–853.)
DISPOSITION The judgments are affirmed. Costs on ap peal are awarded to defendants Lennar, Ball, and CH2M Hill.

_ ____________ ____________ Kline, P.J.

We concur:

_____________ ____________ Haerle, J.

_____________ ____________ Lambden, J.