Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 04/01/2022 05:56 PM Sherri R. Carter, Executive Officer/Clerk of Court, by L. Smith,Deputy Clerk
1 Simona A. Farrise, Esq. (CSB No. 171708)
FARRISE LAW FIRM, P.C.
2 P.O. Box 118
Port Costa, CA 94569
3
Benjamin H. Adams, Esq. (CSB No. 272909)
4 DEAN OMAR BRANHAM SHIRLEY, LLP
302 N. Market Street, Suite 300
5 Dallas, Texas 75202
Telephone: (214) 722-5990
6 Facsimile: (214) 722-5991
badams@dobslegal.com
7
Attorneys for Plaintiffs
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF LOS ANGELES
11 Coordinated Special Proceeding Coordinated Case No. JCCP 4674
Special Title (Rule 3.550)
12 [Assigned for all pre-trial purposes to the
LAOSD ASBESTOS CASES
Honorable Hon. Stuart M. Rice, Dept. 15]
13
14 LASC Case No.: BC475956
JOEL HERNANDEZCUEVA, Deceased; (Consolidated with BC558820)
15
JOVANA COLLANTES, individually and as PLAINTIFFS’ OPPOSITION TO
16 her and successor-in-interest to JOEL DEFENDANTS UNION CARBIDE
HERNANDEZCUEVA, deceased; JOANNA CORPORATION AND ELEMENTIS
17 HERNANDEZ, JOEL HERNANDEZ, CHEMICALS’S MOTION IN LIMINE
NO. 3 TO EXCLUDE FORMER
JENNY HERNANDEZ, NOHELY
18 TESTIMONY OF JOEL
HERNANDEZ, individually and as heirs to HERNANDEZCUEVA
19 JOEL HERNANDEZCUEVA, deceased,
20 Plaintiffs, [Filed Concurrently with Declaration of
Benjamin H. Adams; [Proposed] Order]
21 vs.
22 AMERICAN STANDARD, INC.; et al. Complaint Filed: September 25, 2014
Trial Date: May 2, 2022
23 Defendants.
24
25
26
27
28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
TABLE OF CONTENTS
1
2 TABLE OF AUTHORITIES .......................................................................................................... ii
I. INTRODUCTION .................................................................................................................. 1
3
II. STATEMENT OF FACTS ..................................................................................................... 2
4
III. LEGAL ARGUMENT........................................................................................................ 4
5 A. Defendants’ motion in limine is procedurally improper as a motion for
summary judgment in disguise, and thus is improper. ............................................ 4
6
B. Because UCC had six months to cross-examine Mr. Hernandezcueva before
7 he died, it cannot now claim it had no opportunity to question him........................ 5
8 1. UCC had six months to cross-examine Mr. Hernandezcueva, but it
did not pursue his testimony. ....................................................................... 5
9
2. UCC cannot object that it lacked the opportunity to cross-examine
10 Mr. Hernandezcueva when UCC never asked for his deposition. ............... 7
C. Mr. Hernandezcueva’s former testimony is admissible against UCC and
11
Elementis because E.F. Brady had an opportunity to cross-examine
12 Mr. Hernandezcueva with an interest and motive similar to UCC and
Elementis. ................................................................................................................ 7
13 1. Evidence Code § 1292 excepts former testimony from hearsay
14 exclusion between cross-examination by an entity with a similar
motive in cross-examining the witness ensures trustworthiness. ................ 8
15 2. The similar motive and interest requirement relates to the motive in
16 pursuing the testimony, not a general litigation position, and
requires only a similar motive, not an identical one. ................................... 8
17 3. E.F. Brady had a similar motive and interest to UCC and Elementis
18 because all three Defendants seek to minimize Mr.
Hernandezcueva’s exposure to the same product and to shift blame
19 to his employers. .......................................................................................... 9
20 4. Case law supports admission of Mr. Hernandezcueva’s former
testimony.................................................................................................... 11
21 D. Plaintiffs’ experts may consider Mr. Hernandezcueva’s testimony in
forming their opinions. .......................................................................................... 13
22
IV. CONCLUSION................................................................................................................. 14
23
24
25
26
27
28
i
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
TABLE OF AUTHORITIES
1
2
Page(s)
3 Cases
4 Berroteran v. Super. Ct. of Los Angeles Cty.,
(Cal., Mar. 7, 2022, No. S259522) 2022 WL 664719 ............................................................. 8, 9
5
6 Gatton v. A.P. Green Services,
(1998) 64 Cal.App.4th 688 .................................................................................................. 12, 13
7
Hernandezcueva v. E.F. Brady Co., Inc.,
8 (2015) 243 Cal.App.4th 249 ........................................................................................................ 4
9 In re Gary U,
10 (1982) 136 Cal.App.3d 494 ......................................................................................................... 8
11 McGonnell v. Kaiser Gypsum,
(2002) 98 Cal.App.4th 1098 ...................................................................................................... 14
12
Moore v. Am. United Life Ins. Co.,
13 (1984) 150 Cal.App.3d 610 ......................................................................................................... 8
14
Pellegrini v. Weiss,
15 (2008) 165 Cal.App.4th 515 ........................................................................................................ 5
16 Pena v. Toney,
(1979) 98 Cal.App.3d 534 .................................................................................................. Passim
17
18 People v. Champion,
(1995) 9 Cal.4th 879 .................................................................................................................... 7
19
People v. Zapien,
20 (1993) 4 Cal.4th 929 .................................................................................................................... 8
21
Statutes
22
Ev. C. §801 .................................................................................................................................. 15
23
Ev. C. §1292 ............................................................................................................................. 9, 13
24
25
26
27
28
ii
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
1 Plaintiffs Jovana Collantes, Joanna Hernandez, Jenny Hernandez, Joel Hernandez, Jr.,and
2 Nohely Hernandez (“Plaintiffs”) oppose Defendants Union Carbide Corporation’s and Elementis
3 Chemicals Inc.’s Motion in Limine to Exclude the Deposition and Trial Testimony of Joel
4 Hernandezcueva Taken in the Prior Personal Injury Action in Which They Were Not Parties and Were
5 Unable to Cross-Examine Mr. Hernandezcueva. Decedent’s testimony is admissible, and Plaintiffs’
6 experts may reasonably rely on it.
7 I. INTRODUCTION
8 Union Carbide (“UCC”) and Elementis move in limine to exclude all Decedent’s deposition
9 and trial testimony. The motion is, in effect, a motion for summary judgment on Decedent’s exposure,
10 which is improper in the guise of a motion in limine. Moreover, the Court properly rejected
11 Defendants’ identical arguments in their earlier motion to exclude Mr. Hernandezcueva’s testimony,
12 and nothing has changed since the motion was denied in July 2018 that justifies revisiting that ruling.
13 In fact, UCC did have the opportunity to depose Mr. Hernandezcueva as required by Evid.
14 Code §1291(a), and the fact that it chose to move for a stay rather than depose a dying man does not
15 entitle it to exclude the Decedent’s testimony. Had UCC stirred itself to depose Mr. Hernandezcueva
16 in the six months between the date Plaintiffs served it with the personal injury complaint and the date
17 of Mr. Hernandezcueva’s death, it could have fully cross-examined him and had all the information
18 it wanted from Decedent. And had itdone so, Elementis would also have had the information it
19 wanted, given that Defendants admit their motive and interest in questioning Decedent is the same.
20 Additionally, the motion should be denied because Mr. Hernandezcueva’s deposition satisfies
21 the three requirements of Evid. Code §1292: (i) decedent Joel Hernandezcueva is unavailable, (ii) this
22 is a civil action, and (iii) defendant E.F. Brady Company, Inc., a party to the personal injury action in
23 which Mr. Hernandezcueva’s former testimony was given, had the right and opportunity to cross-
24 examine Mr. Hernandezcueva with an interest and motive similar to UCC and Elementis. E.F. Brady
25 shared a similar motive with UCC and Elementis because each Defendant was sued for Mr.
26 Hernandezcueva’s exposure to the same asbestos-containing product: Hamilton joint compound.
27 UCC mined and milled the raw asbestos fiber in Hamilton joint compound; Elementis distributed
28
1
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
1 UCC’s raw asbestos fibers to Hamilton; and E.F. Brady purchased and installed Hamilton joint
2 compound at Mr. Hernandezcueva’s worksite. In other words, the only reason E.F. Brady was in the
3 underlying personal injury case was because itinstalled a product containing UCC’s raw asbestos
4 fiber, distributed by Elementis. And even if E.F. Brady’s legal defense was not perfectly aligned with
5 UCC and Elementis, its motive and interest in deposing Mr. Hernandezcueva was. Thus, under Evid.
6 Code §1292(a), Mr. Hernandezcueva’s former testimony qualifies for the hearsay exception, and the
7 motion should be denied.
8 II. STATEMENT OF FACTS
9 This action for wrongful death and loss of consortium, brought by Mr. Hernandezcueva’s
10 young widow, Jovana Collantes, their three minor children, and Mr. Hernandezcueva’s daughter from
11 a prior relationship, arises out of Mr. Hernandezcueva’s exposure to asbestos at the complex of Fluor
12 buildings known as Park Place, located in Irvine, California. From approximately 1992 to 1995, Mr.
13 Hernandezcueva was the janitor at the 800,000 square foot Park Place complex. [See Ex. A to
14 Declaration of Benjamin H. Adams (“Adams Decl.”).] His work brought him regularly near
15 construction and demolition work, including demolition of 25% of the original interior walls during
16 tenant improvement and alteration projects at the massive complex of buildings. These original
17 interior walls were covered with Hamilton joint compound, which contained UCC’s raw asbestos
18 fiber and had been installed in the mid-1970s by drywall contractor E.F. Brady. Mr. Hernandezcueva
19 cleaned up dust and debris from this demolition work and breathed the dust from Hamilton joint
20 compound.
21 Two decades later Mr. Hernandezcueva died of malignant mesothelioma, an inevitably fatal
22 cancer of the lining of the lungs caused almost exclusively by exposure to asbestos. [See Ex. F to
23 Adams Decl.] He was 45 years old. At the time of his death, Mr. Hernandezcueva and his 36-year-
24 old wife, Jovana Collantes, had three children together, all under the age of twelve.
25 Before Mr. Hernandezcueva died, he appeared for thirteen separate deposition sessions over
26 a period of nearly a year. [Adams Decl. at ¶ 4.] Defendants, including E.F. Brady and others,
27 extensively cross-examined Mr. Hernandezcueva for twelve of the thirteen deposition sessions. [Id.]
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2
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
1 Mr. Hernandezcueva never identified UCC, Elementis, Hamilton Materials, Expo Industries, or E.F.
2 Brady—the entities in the chain of distribution of the asbestos-containing joint compound at Park
3 Place.1 [Id. at ¶ 5.] Other than his employers, Mr. Hernandezcueva never gave any defendant-
4 identification testimony concerning his exposure to products during wall demolition at Park Place.
5 [Id.] In fact, it was E.F. Brady, not Mr. Hernandezcueva, that supplied the product identification
6 information against UCC and Elementis via the deposition of its persons most knowledgeable,
7 Vincent Lombardo and Warren Bozzo, who identified Hamilton as the brand of joint compound used
8 during the original construction of the Park Place buildings in the mid-1970s. [See Ex. B and C to
9 Adams Decl.] UCC was the exclusive supplier of raw asbestos fiber used in Hamilton joint
10 compound; thus, exposure to Hamilton joint compound is exposure to UCC asbestos fiber, which
11 Elementis distributed.
12 Plaintiffs litigated the case through trial to verdict against E.F. Brady, resulting in the
13 following jury findings:
14 (1) Joel Hernandezcueva was exposed to asbestos released from a product installed by E.F.
15 Brady Company, Inc.;
16 (2) E.F. Brady Company, Inc. was not negligent. [See Ex. D to Adams Decl.]
17 Plaintiffs filed a timely notice of appeal of the judgment, moved for a new trial, and served
18 UCC with a Doe amendment naming it as a Defendant on October 10, 2013. [See Ex. E to Adams
19 Decl.] Plaintiffs’ appeal was successful, and on December 22, 2015, the judgment was reversed as to
20 Plaintiffs’ strict liability claim against E.F. Brady. [See Hernandezcueva v. E.F. Brady Co., Inc.
21 (2015) 243 Cal.App.4th 249.]
22
23
24
1
Below is a chart of the supply chain for the asbestos-containing joint compound at the Park Place complex:
25
Miner/Miller of Distributor of Manufacturer of Distributor of Installer of Joint
26 Raw Asbestos Raw Asbestos Joint Compound Joint Compound Compound
Union Carbide à Elementis à Hamilton à Expo Industries à E.F. Brady
27
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3
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
1 For nearly six months after UCC was served in the personal injury case, Joel Hernandezcueva
2 was alive and available for deposition. [See Ex. F to Adams Decl.] But UCC never noticed his
3 deposition. [Adams Decl. at ¶ 6.] UCC and Elementis suggest that Plaintiffs deliberately denied them
4 the opportunity to be present at Mr. Hernandezcueva’s deposition. In fact, Plaintiffs were unable to
5 bring these Defendants in until after the deposition and the previous trial because Defendants Fluor
6 Corporation and E.F Brady concealed the fact that Kaiser Gypsum’s asbestos-free joint compound,
7 identified in the Park Place building records, had been replaced at the last minute with Hamilton
8 asbestos-containing joint compound during the original construction of the Park Place complex.
9 Because Fluor and E.F. Brady failed to truthfully respond to written discovery, Plaintiffs had no
10 suspicion UCC and Elementis were implicated in causing Plaintiffs’ injuries until the eve of trial at
11 the deposition of E.F. Brady’s corporate representative. Through ongoing discovery, Plaintiffs
12 confirmed that UCC supplied raw asbestos fibers for Hamilton joint compound and promptly filed a
13 Doe amendment naming UCC as a Defendant. Plaintiffs made no strategic decision to exclude UCC
14 and Elementis from Mr. Hernandezcueva’s deposition, and Plaintiffs joined UCC as a Defendant
15 when Mr. Hernandezcueva was still alive and available to be deposed.
16 III. LEGAL ARGUMENT
17 A. Defendants’ motion in limine is procedurally improper as a motion for summary
judgment in disguise, and thus is improper.
18
Defendants move to exclude all of Decedent’s testimony, as well as reliance on that testimony
19
by Plaintiffs’ experts. The motion, if granted, would effectively gut Plaintiffs’ exposure evidence.
20
Although Mr. Hernandezcueva was unaware of the asbestos-containing products he worked around,
21
he is the one witness who knows exactly what he did at Park Place—the areas in which he worked
22
and the materials he cleaned up. Although other witnesses have testified about the extensive
23
renovation and remodeling that occurred during Mr. Hernandezcueva’s tenure at Park Place, Mr.
24
Hernandezcueva is the only witness who has testified he was exposed to it.
25
“A motion in limine may not be used for the purpose of seeking summary judgment or the
26
summary adjudication of an issue or issues.” [L.A. Sup. Ct. R. 3.57(b).] The local rules are mandatory
27
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
1 and “applicable to all courts in the County.” [L.A. Sup. Ct. Rule 1.11 and 1.1 (“‘May not’…mean[s]
2 ‘is not permitted to.’”).] Even if the use of a motion in limine to substitute for a dispositive motion
3 were not prohibited by the local rule, the practice is disfavored and “produces substantial risk of
4 reversal.” [Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 530.]
5 Defendants previously moved to exclude Mr. Hernandezcueva’s testimony, and the motion
6 was denied. [See Ex. I to Adams Decl.] While the matter can certainly be reconsidered by the Court,
7 Defendants have made no new arguments in support of the motion, and there are no changed
8 circumstances that might justify a different result. Certainly, a new result is not warranted in the
9 context of a motion in limine where granting the motion would exclude all the Decedent’s testimony
10 about his work history. For these reasons alone, the motion should be denied.
11 B. Because UCC had six months to cross-examine Mr. Hernandezcueva before he
died, it cannot now claim it had no opportunity to question him.
12
1. UCC had six months to cross-examine Mr. Hernandezcueva, but it did not
13 pursue his testimony.
14 UCC was a party to the proceeding in which Mr. Hernandezcueva was deposed, although it
15 was a later-joined party. Under Evid. Code §1291(a), Mr. Hernandezcueva’s former testimony is
16 admissible against UCC if (1) Mr. Hernandezcueva is unavailable, and (2) UCC “had the right and
17 opportunity to cross-examine the declarant with an interest and motive similar to that which he has at
18 the hearing.” It is undisputed that Mr. Hernandezcueva died of mesothelioma on April 5, 2014 and is
19 unavailable. And UCC did have an opportunity to depose and to cross examine Mr. Hernandezcueva,
20 but it did not seize that opportunity.
21 When UCC was served with the Doe amendment on October 10, 2013 [see Ex. H to
22 McKelvey Decl.], it did not seek to take Mr. Hernandezcueva’s deposition. UCC knew from the
23 complaint that this was an asbestos case, and UCC could have immediately ascertained that Mr.
24 Hernandezcueva suffered from malignant mesothelioma—for example, from Plaintiffs’ General
25 Order 29 Case Report or the dozens of filing available electronically on file&servexpress at the time.
26 [See Ex. J to Adams Decl. at 2:11-13.] UCC certainly has enough experience in asbestos litigation to
27 understand that obtaining the deposition of a mesothelioma victim is an urgent matter, but UCC did
28
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
1 not prioritize its right to cross-examine Mr. Hernandezcueva. It demurred; it filed a motion to quash;
2 and it moved to stay the action. [See Mtn. 20:12-16.] UCC showed no interest in taking the
3 opportunity to cross-examine Mr. Hernandezcueva. The demurrer was overruled and both motions
4 were denied. [Id.] Mr. Hernandezcueva died on April 5, 2014—almost exactly six months after UCC
5 was served. [See Ex. F to Adams Decl.]
6 Defendants’ argument that Plaintiffs excluded them from the deposition and “effectively
7 deprived UCC and Elementis of the opportunity to cross-examine Mr. Hernandezcueva either at his
8 deposition or at trial” is wrongheaded. [Mtn. at 14:12-14.] It suggests that UCC had no control and
9 no option for deposing Mr. Hernandezcueva, but that is simply not true. Initially UCC focused on
10 motion practice and claims that it could not, at the same time, review the facts or consider deposing
11 a sick Plaintiff. UCC also argues that it was prevented from deposing Mr. Hernandezcueva by a stay
12 that was in effect from January 16 until April 2, 2014. But UCC moved for the stay. It created the
13 hurtle to deposing Mr. Hernandezcueva, even though UCC is aware, as Dr. Frank testified in this
14 case, that the average life expectancy for a mesothelioma patient is eighteen months to three years
15 from the date of diagnosis. [See Ex. K to Adams Decl. at 52:13-20.] Mr. Hernandezcueva was
16 diagnosed with malignant pleural mesothelioma on December 5, 2011 (22 months before UCC was
17 served), and he died April 5, 2014 (28 months after his diagnosis). [See Ex. F to Adams Decl.; Ex. I
18 to McKelvey Decl.]
19 When UCC focused on its motions and moved for a stay rather than seeking to depose Mr.
20 Hernandezcueva, it made a strategy call. UCC deliberately rejected what it knew or should have
21 known was a relatively narrow window in which Mr. Hernandezcueva was available for further cross-
22 examination. UCC had the opportunity to cross-examine Mr. Hernandezcueva at any time between
23 October 10, 2013 and April 5, 2014. That opportunity was not diminished because it came after the
24 bulk of the testimony. In fact, UCC could have used the availability of previous testimony in the case
25 to its advantage in cross-examining Mr. Hernandezcueva. Allowing a delay before cross-examination
26 is sometimes used to ameliorate prejudice from the late production of evidence. [See, e.g., People v.
27 Champion (1995) 9 Cal.4th 879, 916–17, overruled on other grounds in People v. Combs (2004) 34
28
6
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
1 Cal.4th 821, 860.] UCC simply never availed itself of the opportunity to depose Mr. Hernandezcueva,
2 and it should not be permitted now to exclude Decedent’s testimony because itdid not diligently
3 pursue discovery.
4 2. UCC cannot object that it lacked the opportunity to cross-examine Mr.
Hernandezcueva when UCC never asked for his deposition.
5
The fact that UCC chose not to cross-examine him cannot make Mr. Hernandezcueva’s former
6
testimony inadmissible. Because UCC had “the opportunity for effective cross-examination, the
7
statutory requirements [a]re satisfied; the admissibility of this evidence did not depend on whether
8
[UCC] availed [it]self fully of that opportunity.” [People v. Zapien (1993) 4 Cal.4th 929, 975 (emph.
9
added)]. The fact that a party did not utilize the methods available to procure cross-examination does
10
not mean that the party lacked the opportunity for meaningful cross-examination. [See In re Gary U
11
(1982) 136 Cal.App.3d 494 (rejecting argument party lacked meaningful opportunity to cross-
12
examine witness absent evidence that party tried to use methods such as requesting issuance of letters
13
rogatory or appointment of commissioner to obtain the testimony)].
14
UCC made a strategic choice about how to proceed in this case. It could have deposed and
15
cross-examined Mr. Hernandezcueva, but it chose instead to rely on its motion practice and to pursue
16
a stay of the proceedings—even though Mr. Hernandezcueva’s medical condition meant that an
17
opportunity delayed was likely an opportunity lost. [Cf. Berroteran v. Super. Ct. of Los Angeles Cty.
18
(Cal., Mar. 7, 2022, No. S259522) 2022 WL 664719, at *14-15 (noting that full cross-examination is
19
appropriate during deposition when health conditions or other concerns make witness’s appearance
20
at trial uncertain).] UCC’s choice to forgo that opportunity for strategic reasons is not protected by
21
Evid. Code § 1291. Mr. Hernandezcueva’s testimony is admissible against UCC under Evid. Code §
22
1291(a)(2).
23
C. Mr. Hernandezcueva’s former testimony is admissible against UCC and
24 Elementis because E.F. Brady had an opportunity to cross-examine Mr.
Hernandezcueva with an interest and motive similar to UCC and Elementis.
25
Pursuant to Evid. Code § 1292(a), former testimony is not made inadmissible by the hearsay
26
rule if the witness is unavailable to testify and a “party to the prior proceeding had the right and
27
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
1 opportunity to cross-examine the declarant with an interest and motive similar to that which the party
2 against whom the testimony is now offered has at the present proceeding.” [See Moore v. Am. United
3 Life Ins. Co. (1984) 150 Cal.App.3d 610, 628-629; Pena v. Toney (1979) 98 Cal.App.3d 534, 540
4 (recognizing similar motive to discredit witness regarding stolen money).]
5 1. Evidence Code § 1292 excepts former testimony from hearsay exclusion
between cross-examination by an entity with a similar motive in cross-
6 examining the witness ensures trustworthiness.
7 Section 1292 constitutes a specific exception to the hearsay rule. The rationale for the hearsay
8 exception is that the opportunity to cross-examine with a similar motive ensures the trustworthiness
9 of the testimony: “The trustworthiness of the former testimony is sufficiently guaranteed because the
10 former adverse party had the right and opportunity to cross-examine the declarant with an interest
11 and motive similar to that of the present adverse party.” [Editors’ Notes to Ev. C. §1292: Assem.
12 Comment on Judiciary.] Even though the party against whom the prior testimony is being used did
13 not cross-examine the witness, “it can be generally assumed that most prior cross-examination is
14 adequate if the same stakes are involved.” [Id.]
15 Defendants contest the adequacy of E.F. Brady’s cross-examination and assert that they would
16 have asked additional questions, but “[e]ven where the prior cross-examination was inadequate, there
17 is better reason here for providing a hearsay exception than there is for many of the presently
18 recognized exceptions to the hearsay rule.” [Id.] There is no requirement that the cross-examination
19 that was conducted have been perfect—or even adequate—if the entity performing that cross-
20 examination had a similar motive to the party seeking exclusion.
21 2. The similar motive and interest requirement relates to the motive in pursuing
the testimony, not a general litigation position, and requires only a similar
22
motive, not an identical one.
23 The similar motive and interest requirement is not concerned with the party’s litigation
24 position generally. The Court must consider specifically whether E.F. Brady had a similar motive and
25 interest to UCC and Elementis in deposing Mr. Hernandezcueva. For example, in Berroteran, the
26 supreme court considered the similarity of interest and motive during “cross-examination at a
27 discovery deposition” and during cross-examination at trial. [2022 WL 664719, at *13.] In Pena v
28
8
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
1 Toney, the court found that testimony from a hearing in a criminal proceeding was admissible in a
2 separate but factually related civil case because the party cross-examining the witness in the criminal
3 case had a similar motive and interest to the party challenging the testimony in the civil case: to
4 discredit the witness. [(1979) 98 Cal.App.3d 534, 540.]
5 Defendants point out that E.F. Brady had an opposing interest in blaming the product
6 manufacturer to deflect from its own negligence, but that opposing interest is not triggered in deposing
7 Mr. Hernandezcueva. During the deposition, these Defendants had the identical motive to eliminate
8 or minimize Mr. Hernandezcueva’s exposure to the same Hamilton joint compound, to dispute its
9 presence at Park Place when Mr. Hernandezcueva worked there, and to shift legal fault onto others
10 under Proposition 51 (e.g., onto Mr. Hernandezcueva’s employers). Even if E.F. Brady’s legal
11 defense caused its interests to later diverge from UCC’s and Elementis’s, its interest and motive in
12 deposing Mr. Hernandezcueva was fully aligned with UCC’s and Elementis’s.
13 3. E.F. Brady had a similar motive and interest to UCC and Elementis because all
three Defendants seek to minimize Mr. Hernandezcueva’s exposure to the
14 same product and to shift blame to his employers.
15 Defendants dispute whether another party cross-examined Mr. Hernandezcueva with an
16 interest and motive similar to Union Carbide’s and Elementis’s, but E.F. Brady, UCC, and Elementis
17 had the common motive and interest in deposing Mr. Hernandezcueva of (1) minimizing or
18 eliminating his exposure to Hamilton asbestos-containing joint compound and (2) deflecting liability
19 for his injuries onto his employers.
20 First, E.F. Brady had a similar motive to cross-examine Mr. Hernandezcueva at the prior
21 proceeding because UCC, Elementis, and E.F. Brady are liable for the exact same asbestos-containing
22 product: Hamilton joint compound. If E.F. Brady can minimize or eliminate Mr. Hernandezcueva’s
23 exposure to the Hamilton joint compound it installed at Park Place, it not only eliminates itsown
24 liability, it exonerates UCC and Elementis as well. In other words, these defendants succeed or fail
25 together. E.F. Brady, UCC, and Elementis are thus perfectly aligned in their desire to minimize or
26 eliminate Mr. Hernandezcueva’s exposure to Hamilton joint compound at his jobsite, as well as to
27 blame his employer, Fluor Corporation. And, predictably, that is exactly what E.F. Brady attempted
28
9
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
1 to do at trial [See Ex. G to Adams Dec.: Opening Statement of E.F. Brady in which it immediately
2 presents its “shell and core” defense (i.e., no exposure) and blames Mr. Hernandezcueva’s employer.]
3 Second, E.F. Brady’s motive to shift legal fault pursuant to Civil Code § 1431.2 (Proposition
4 51) to Mr. Hernandezcueva’s employers is not only similar to UCC’s and Elementis’s motive, but
5 identical. All three defendants have a strong motive to blame Mr. Hernandezcueva’s employers for
6 purportedly violating OSHA requirements, for failing to test the joint compound or wallboard for the
7 presence of asbestos before demolition, and for failing to provide a mask or other breathing protection
8 to Mr. Hernandezcueva when he was performing his work. E.F. Brady, UCC, and Elementis are
9 perfectly aligned in this regard, and E.F. Brady cross-examined Mr. Hernandezcueva on matters
10 relevant to his employers’ liability.
11 Moreover, many of the criticisms of E.F. Brady’s cross-examination made by Defendants are
12 nonsensical given the limits on Mr. Hernandezcueva’s personal knowledge. For example, Defendants
13 complain that no questions were asked that mentioned UCC or Elementis, addressed the supply of
14 asbestos fiber for Hamilton joint compound, or sought “to prove UCC and Elementis had no liability.”
15 [Mtn. at 17:26-18:2] But Mr. Hernandezcueva did not install the joint compound or even see it
16 installed. He would have known nothing about the joint compound or the fiber suppliers for that joint
17 compound that were used 20 years before he arrived as a janitor at Park Place in 1992. Mr.
18 Hernandezcueva simply had no basis for personal knowledge of these matters. He also had no basis
19 for personal knowledge of repairs made to the premises and joint compound products that might have
20 been removed or applied during those repairs in the intervening 16 years between E.F. Brady’s
21 installation of Hamilton joint compound and Mr. Hernandezcueva’s time at Park Place. [Mtn. 18:23-
22 19:3] Defendants call this “a critical area of inquiry that was not explored during Mr.
23 Hernandezcueva’s deposition and would have been explored had counsel for UCC or Elementis been
24 present.” [Id.] But again, Mr. Hernandezcueva had no possible basis for personal knowledge of those
25 events because they occurred before he arrived at Park Place.
26
27
28
10
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS
CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL
HERNANDEZCUEVA
4. Case law supports admission of Mr. Hernandezcueva’s former testimony.
1
Defendants rely on Gatton v. A.P. Green Services (1998) 64 Cal.App.4th 688 in support of
2
their argument that E.F. Brady did not have a similar motive to theirs, but the case is inapposite. The
3
plaintiffs in Gatton, a wrongful death action, sued A.P. Green Services, Inc., contending it was
4
Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 04/01/2022 05:56 PM Sherri R. Carter, Executive Officer/Clerk of Court, by L. Smith,Deputy Clerk 1 Simona A. Farrise, Esq. (CSB No. 171708) FARRISE LAW FIRM, P.C. 2 P.O. Box 118 Port Costa, CA 94569 3 Benjamin H. Adams, Esq. (CSB No. 272909) 4 DEAN OMAR BRANHAM SHIRLEY, LLP 302 N. Market Street, Suite 300 5 Dallas, Texas 75202 Telephone: (214) 722-5990 6 Facsimile: (214) 722-5991 badams@dobslegal.com 7 Attorneys for Plaintiffs 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF LOS ANGELES 11 Coordinated Special Proceeding Coordinated Case No. JCCP 4674 Special Title (Rule 3.550) 12 [Assigned for all pre-trial purposes to the LAOSD ASBESTOS CASES Honorable Hon. Stuart M. Rice, Dept. 15] 13 14 LASC Case No.: BC475956 JOEL HERNANDEZCUEVA, Deceased; (Consolidated with BC558820) 15 JOVANA COLLANTES, individually and as PLAINTIFFS’ OPPOSITION TO 16 her and successor-in-interest to JOEL DEFENDANTS UNION CARBIDE HERNANDEZCUEVA, deceased; JOANNA CORPORATION AND ELEMENTIS 17 HERNANDEZ, JOEL HERNANDEZ, CHEMICALS’S MOTION IN LIMINE NO. 3 TO EXCLUDE FORMER JENNY HERNANDEZ, NOHELY 18 TESTIMONY OF JOEL HERNANDEZ, individually and as heirs to HERNANDEZCUEVA 19 JOEL HERNANDEZCUEVA, deceased, 20 Plaintiffs, [Filed Concurrently with Declaration of Benjamin H. Adams; [Proposed] Order] 21 vs. 22 AMERICAN STANDARD, INC.; et al. Complaint Filed: September 25, 2014 Trial Date: May 2, 2022 23 Defendants. 24 25 26 27 28 PLAINTIFFS’ OPPOSITION TO DEFENDANTS UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA TABLE OF CONTENTS 1 2 TABLE OF AUTHORITIES .......................................................................................................... ii I. INTRODUCTION .................................................................................................................. 1 3 II. STATEMENT OF FACTS ..................................................................................................... 2 4 III. LEGAL ARGUMENT........................................................................................................ 4 5 A. Defendants’ motion in limine is procedurally improper as a motion for summary judgment in disguise, and thus is improper. ............................................ 4 6 B. Because UCC had six months to cross-examine Mr. Hernandezcueva before 7 he died, it cannot now claim it had no opportunity to question him........................ 5 8 1. UCC had six months to cross-examine Mr. Hernandezcueva, but it did not pursue his testimony. ....................................................................... 5 9 2. UCC cannot object that it lacked the opportunity to cross-examine 10 Mr. Hernandezcueva when UCC never asked for his deposition. ............... 7 C. Mr. Hernandezcueva’s former testimony is admissible against UCC and 11 Elementis because E.F. Brady had an opportunity to cross-examine 12 Mr. Hernandezcueva with an interest and motive similar to UCC and Elementis. ................................................................................................................ 7 13 1. Evidence Code § 1292 excepts former testimony from hearsay 14 exclusion between cross-examination by an entity with a similar motive in cross-examining the witness ensures trustworthiness. ................ 8 15 2. The similar motive and interest requirement relates to the motive in 16 pursuing the testimony, not a general litigation position, and requires only a similar motive, not an identical one. ................................... 8 17 3. E.F. Brady had a similar motive and interest to UCC and Elementis 18 because all three Defendants seek to minimize Mr. Hernandezcueva’s exposure to the same product and to shift blame 19 to his employers. .......................................................................................... 9 20 4. Case law supports admission of Mr. Hernandezcueva’s former testimony.................................................................................................... 11 21 D. Plaintiffs’ experts may consider Mr. Hernandezcueva’s testimony in forming their opinions. .......................................................................................... 13 22 IV. CONCLUSION................................................................................................................. 14 23 24 25 26 27 28 i PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA TABLE OF AUTHORITIES 1 2 Page(s) 3 Cases 4 Berroteran v. Super. Ct. of Los Angeles Cty., (Cal., Mar. 7, 2022, No. S259522) 2022 WL 664719 ............................................................. 8, 9 5 6 Gatton v. A.P. Green Services, (1998) 64 Cal.App.4th 688 .................................................................................................. 12, 13 7 Hernandezcueva v. E.F. Brady Co., Inc., 8 (2015) 243 Cal.App.4th 249 ........................................................................................................ 4 9 In re Gary U, 10 (1982) 136 Cal.App.3d 494 ......................................................................................................... 8 11 McGonnell v. Kaiser Gypsum, (2002) 98 Cal.App.4th 1098 ...................................................................................................... 14 12 Moore v. Am. United Life Ins. Co., 13 (1984) 150 Cal.App.3d 610 ......................................................................................................... 8 14 Pellegrini v. Weiss, 15 (2008) 165 Cal.App.4th 515 ........................................................................................................ 5 16 Pena v. Toney, (1979) 98 Cal.App.3d 534 .................................................................................................. Passim 17 18 People v. Champion, (1995) 9 Cal.4th 879 .................................................................................................................... 7 19 People v. Zapien, 20 (1993) 4 Cal.4th 929 .................................................................................................................... 8 21 Statutes 22 Ev. C. §801 .................................................................................................................................. 15 23 Ev. C. §1292 ............................................................................................................................. 9, 13 24 25 26 27 28 ii PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA 1 Plaintiffs Jovana Collantes, Joanna Hernandez, Jenny Hernandez, Joel Hernandez, Jr.,and 2 Nohely Hernandez (“Plaintiffs”) oppose Defendants Union Carbide Corporation’s and Elementis 3 Chemicals Inc.’s Motion in Limine to Exclude the Deposition and Trial Testimony of Joel 4 Hernandezcueva Taken in the Prior Personal Injury Action in Which They Were Not Parties and Were 5 Unable to Cross-Examine Mr. Hernandezcueva. Decedent’s testimony is admissible, and Plaintiffs’ 6 experts may reasonably rely on it. 7 I. INTRODUCTION 8 Union Carbide (“UCC”) and Elementis move in limine to exclude all Decedent’s deposition 9 and trial testimony. The motion is, in effect, a motion for summary judgment on Decedent’s exposure, 10 which is improper in the guise of a motion in limine. Moreover, the Court properly rejected 11 Defendants’ identical arguments in their earlier motion to exclude Mr. Hernandezcueva’s testimony, 12 and nothing has changed since the motion was denied in July 2018 that justifies revisiting that ruling. 13 In fact, UCC did have the opportunity to depose Mr. Hernandezcueva as required by Evid. 14 Code §1291(a), and the fact that it chose to move for a stay rather than depose a dying man does not 15 entitle it to exclude the Decedent’s testimony. Had UCC stirred itself to depose Mr. Hernandezcueva 16 in the six months between the date Plaintiffs served it with the personal injury complaint and the date 17 of Mr. Hernandezcueva’s death, it could have fully cross-examined him and had all the information 18 it wanted from Decedent. And had itdone so, Elementis would also have had the information it 19 wanted, given that Defendants admit their motive and interest in questioning Decedent is the same. 20 Additionally, the motion should be denied because Mr. Hernandezcueva’s deposition satisfies 21 the three requirements of Evid. Code §1292: (i) decedent Joel Hernandezcueva is unavailable, (ii) this 22 is a civil action, and (iii) defendant E.F. Brady Company, Inc., a party to the personal injury action in 23 which Mr. Hernandezcueva’s former testimony was given, had the right and opportunity to cross- 24 examine Mr. Hernandezcueva with an interest and motive similar to UCC and Elementis. E.F. Brady 25 shared a similar motive with UCC and Elementis because each Defendant was sued for Mr. 26 Hernandezcueva’s exposure to the same asbestos-containing product: Hamilton joint compound. 27 UCC mined and milled the raw asbestos fiber in Hamilton joint compound; Elementis distributed 28 1 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA 1 UCC’s raw asbestos fibers to Hamilton; and E.F. Brady purchased and installed Hamilton joint 2 compound at Mr. Hernandezcueva’s worksite. In other words, the only reason E.F. Brady was in the 3 underlying personal injury case was because itinstalled a product containing UCC’s raw asbestos 4 fiber, distributed by Elementis. And even if E.F. Brady’s legal defense was not perfectly aligned with 5 UCC and Elementis, its motive and interest in deposing Mr. Hernandezcueva was. Thus, under Evid. 6 Code §1292(a), Mr. Hernandezcueva’s former testimony qualifies for the hearsay exception, and the 7 motion should be denied. 8 II. STATEMENT OF FACTS 9 This action for wrongful death and loss of consortium, brought by Mr. Hernandezcueva’s 10 young widow, Jovana Collantes, their three minor children, and Mr. Hernandezcueva’s daughter from 11 a prior relationship, arises out of Mr. Hernandezcueva’s exposure to asbestos at the complex of Fluor 12 buildings known as Park Place, located in Irvine, California. From approximately 1992 to 1995, Mr. 13 Hernandezcueva was the janitor at the 800,000 square foot Park Place complex. [See Ex. A to 14 Declaration of Benjamin H. Adams (“Adams Decl.”).] His work brought him regularly near 15 construction and demolition work, including demolition of 25% of the original interior walls during 16 tenant improvement and alteration projects at the massive complex of buildings. These original 17 interior walls were covered with Hamilton joint compound, which contained UCC’s raw asbestos 18 fiber and had been installed in the mid-1970s by drywall contractor E.F. Brady. Mr. Hernandezcueva 19 cleaned up dust and debris from this demolition work and breathed the dust from Hamilton joint 20 compound. 21 Two decades later Mr. Hernandezcueva died of malignant mesothelioma, an inevitably fatal 22 cancer of the lining of the lungs caused almost exclusively by exposure to asbestos. [See Ex. F to 23 Adams Decl.] He was 45 years old. At the time of his death, Mr. Hernandezcueva and his 36-year- 24 old wife, Jovana Collantes, had three children together, all under the age of twelve. 25 Before Mr. Hernandezcueva died, he appeared for thirteen separate deposition sessions over 26 a period of nearly a year. [Adams Decl. at ¶ 4.] Defendants, including E.F. Brady and others, 27 extensively cross-examined Mr. Hernandezcueva for twelve of the thirteen deposition sessions. [Id.] 28 2 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA 1 Mr. Hernandezcueva never identified UCC, Elementis, Hamilton Materials, Expo Industries, or E.F. 2 Brady—the entities in the chain of distribution of the asbestos-containing joint compound at Park 3 Place.1 [Id. at ¶ 5.] Other than his employers, Mr. Hernandezcueva never gave any defendant- 4 identification testimony concerning his exposure to products during wall demolition at Park Place. 5 [Id.] In fact, it was E.F. Brady, not Mr. Hernandezcueva, that supplied the product identification 6 information against UCC and Elementis via the deposition of its persons most knowledgeable, 7 Vincent Lombardo and Warren Bozzo, who identified Hamilton as the brand of joint compound used 8 during the original construction of the Park Place buildings in the mid-1970s. [See Ex. B and C to 9 Adams Decl.] UCC was the exclusive supplier of raw asbestos fiber used in Hamilton joint 10 compound; thus, exposure to Hamilton joint compound is exposure to UCC asbestos fiber, which 11 Elementis distributed. 12 Plaintiffs litigated the case through trial to verdict against E.F. Brady, resulting in the 13 following jury findings: 14 (1) Joel Hernandezcueva was exposed to asbestos released from a product installed by E.F. 15 Brady Company, Inc.; 16 (2) E.F. Brady Company, Inc. was not negligent. [See Ex. D to Adams Decl.] 17 Plaintiffs filed a timely notice of appeal of the judgment, moved for a new trial, and served 18 UCC with a Doe amendment naming it as a Defendant on October 10, 2013. [See Ex. E to Adams 19 Decl.] Plaintiffs’ appeal was successful, and on December 22, 2015, the judgment was reversed as to 20 Plaintiffs’ strict liability claim against E.F. Brady. [See Hernandezcueva v. E.F. Brady Co., Inc. 21 (2015) 243 Cal.App.4th 249.] 22 23 24 1 Below is a chart of the supply chain for the asbestos-containing joint compound at the Park Place complex: 25 Miner/Miller of Distributor of Manufacturer of Distributor of Installer of Joint 26 Raw Asbestos Raw Asbestos Joint Compound Joint Compound Compound Union Carbide à Elementis à Hamilton à Expo Industries à E.F. Brady 27 28 3 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA 1 For nearly six months after UCC was served in the personal injury case, Joel Hernandezcueva 2 was alive and available for deposition. [See Ex. F to Adams Decl.] But UCC never noticed his 3 deposition. [Adams Decl. at ¶ 6.] UCC and Elementis suggest that Plaintiffs deliberately denied them 4 the opportunity to be present at Mr. Hernandezcueva’s deposition. In fact, Plaintiffs were unable to 5 bring these Defendants in until after the deposition and the previous trial because Defendants Fluor 6 Corporation and E.F Brady concealed the fact that Kaiser Gypsum’s asbestos-free joint compound, 7 identified in the Park Place building records, had been replaced at the last minute with Hamilton 8 asbestos-containing joint compound during the original construction of the Park Place complex. 9 Because Fluor and E.F. Brady failed to truthfully respond to written discovery, Plaintiffs had no 10 suspicion UCC and Elementis were implicated in causing Plaintiffs’ injuries until the eve of trial at 11 the deposition of E.F. Brady’s corporate representative. Through ongoing discovery, Plaintiffs 12 confirmed that UCC supplied raw asbestos fibers for Hamilton joint compound and promptly filed a 13 Doe amendment naming UCC as a Defendant. Plaintiffs made no strategic decision to exclude UCC 14 and Elementis from Mr. Hernandezcueva’s deposition, and Plaintiffs joined UCC as a Defendant 15 when Mr. Hernandezcueva was still alive and available to be deposed. 16 III. LEGAL ARGUMENT 17 A. Defendants’ motion in limine is procedurally improper as a motion for summary judgment in disguise, and thus is improper. 18 Defendants move to exclude all of Decedent’s testimony, as well as reliance on that testimony 19 by Plaintiffs’ experts. The motion, if granted, would effectively gut Plaintiffs’ exposure evidence. 20 Although Mr. Hernandezcueva was unaware of the asbestos-containing products he worked around, 21 he is the one witness who knows exactly what he did at Park Place—the areas in which he worked 22 and the materials he cleaned up. Although other witnesses have testified about the extensive 23 renovation and remodeling that occurred during Mr. Hernandezcueva’s tenure at Park Place, Mr. 24 Hernandezcueva is the only witness who has testified he was exposed to it. 25 “A motion in limine may not be used for the purpose of seeking summary judgment or the 26 summary adjudication of an issue or issues.” [L.A. Sup. Ct. R. 3.57(b).] The local rules are mandatory 27 28 4 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA 1 and “applicable to all courts in the County.” [L.A. Sup. Ct. Rule 1.11 and 1.1 (“‘May not’…mean[s] 2 ‘is not permitted to.’”).] Even if the use of a motion in limine to substitute for a dispositive motion 3 were not prohibited by the local rule, the practice is disfavored and “produces substantial risk of 4 reversal.” [Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 530.] 5 Defendants previously moved to exclude Mr. Hernandezcueva’s testimony, and the motion 6 was denied. [See Ex. I to Adams Decl.] While the matter can certainly be reconsidered by the Court, 7 Defendants have made no new arguments in support of the motion, and there are no changed 8 circumstances that might justify a different result. Certainly, a new result is not warranted in the 9 context of a motion in limine where granting the motion would exclude all the Decedent’s testimony 10 about his work history. For these reasons alone, the motion should be denied. 11 B. Because UCC had six months to cross-examine Mr. Hernandezcueva before he died, it cannot now claim it had no opportunity to question him. 12 1. UCC had six months to cross-examine Mr. Hernandezcueva, but it did not 13 pursue his testimony. 14 UCC was a party to the proceeding in which Mr. Hernandezcueva was deposed, although it 15 was a later-joined party. Under Evid. Code §1291(a), Mr. Hernandezcueva’s former testimony is 16 admissible against UCC if (1) Mr. Hernandezcueva is unavailable, and (2) UCC “had the right and 17 opportunity to cross-examine the declarant with an interest and motive similar to that which he has at 18 the hearing.” It is undisputed that Mr. Hernandezcueva died of mesothelioma on April 5, 2014 and is 19 unavailable. And UCC did have an opportunity to depose and to cross examine Mr. Hernandezcueva, 20 but it did not seize that opportunity. 21 When UCC was served with the Doe amendment on October 10, 2013 [see Ex. H to 22 McKelvey Decl.], it did not seek to take Mr. Hernandezcueva’s deposition. UCC knew from the 23 complaint that this was an asbestos case, and UCC could have immediately ascertained that Mr. 24 Hernandezcueva suffered from malignant mesothelioma—for example, from Plaintiffs’ General 25 Order 29 Case Report or the dozens of filing available electronically on file&servexpress at the time. 26 [See Ex. J to Adams Decl. at 2:11-13.] UCC certainly has enough experience in asbestos litigation to 27 understand that obtaining the deposition of a mesothelioma victim is an urgent matter, but UCC did 28 5 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA 1 not prioritize its right to cross-examine Mr. Hernandezcueva. It demurred; it filed a motion to quash; 2 and it moved to stay the action. [See Mtn. 20:12-16.] UCC showed no interest in taking the 3 opportunity to cross-examine Mr. Hernandezcueva. The demurrer was overruled and both motions 4 were denied. [Id.] Mr. Hernandezcueva died on April 5, 2014—almost exactly six months after UCC 5 was served. [See Ex. F to Adams Decl.] 6 Defendants’ argument that Plaintiffs excluded them from the deposition and “effectively 7 deprived UCC and Elementis of the opportunity to cross-examine Mr. Hernandezcueva either at his 8 deposition or at trial” is wrongheaded. [Mtn. at 14:12-14.] It suggests that UCC had no control and 9 no option for deposing Mr. Hernandezcueva, but that is simply not true. Initially UCC focused on 10 motion practice and claims that it could not, at the same time, review the facts or consider deposing 11 a sick Plaintiff. UCC also argues that it was prevented from deposing Mr. Hernandezcueva by a stay 12 that was in effect from January 16 until April 2, 2014. But UCC moved for the stay. It created the 13 hurtle to deposing Mr. Hernandezcueva, even though UCC is aware, as Dr. Frank testified in this 14 case, that the average life expectancy for a mesothelioma patient is eighteen months to three years 15 from the date of diagnosis. [See Ex. K to Adams Decl. at 52:13-20.] Mr. Hernandezcueva was 16 diagnosed with malignant pleural mesothelioma on December 5, 2011 (22 months before UCC was 17 served), and he died April 5, 2014 (28 months after his diagnosis). [See Ex. F to Adams Decl.; Ex. I 18 to McKelvey Decl.] 19 When UCC focused on its motions and moved for a stay rather than seeking to depose Mr. 20 Hernandezcueva, it made a strategy call. UCC deliberately rejected what it knew or should have 21 known was a relatively narrow window in which Mr. Hernandezcueva was available for further cross- 22 examination. UCC had the opportunity to cross-examine Mr. Hernandezcueva at any time between 23 October 10, 2013 and April 5, 2014. That opportunity was not diminished because it came after the 24 bulk of the testimony. In fact, UCC could have used the availability of previous testimony in the case 25 to its advantage in cross-examining Mr. Hernandezcueva. Allowing a delay before cross-examination 26 is sometimes used to ameliorate prejudice from the late production of evidence. [See, e.g., People v. 27 Champion (1995) 9 Cal.4th 879, 916–17, overruled on other grounds in People v. Combs (2004) 34 28 6 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA 1 Cal.4th 821, 860.] UCC simply never availed itself of the opportunity to depose Mr. Hernandezcueva, 2 and it should not be permitted now to exclude Decedent’s testimony because itdid not diligently 3 pursue discovery. 4 2. UCC cannot object that it lacked the opportunity to cross-examine Mr. Hernandezcueva when UCC never asked for his deposition. 5 The fact that UCC chose not to cross-examine him cannot make Mr. Hernandezcueva’s former 6 testimony inadmissible. Because UCC had “the opportunity for effective cross-examination, the 7 statutory requirements [a]re satisfied; the admissibility of this evidence did not depend on whether 8 [UCC] availed [it]self fully of that opportunity.” [People v. Zapien (1993) 4 Cal.4th 929, 975 (emph. 9 added)]. The fact that a party did not utilize the methods available to procure cross-examination does 10 not mean that the party lacked the opportunity for meaningful cross-examination. [See In re Gary U 11 (1982) 136 Cal.App.3d 494 (rejecting argument party lacked meaningful opportunity to cross- 12 examine witness absent evidence that party tried to use methods such as requesting issuance of letters 13 rogatory or appointment of commissioner to obtain the testimony)]. 14 UCC made a strategic choice about how to proceed in this case. It could have deposed and 15 cross-examined Mr. Hernandezcueva, but it chose instead to rely on its motion practice and to pursue 16 a stay of the proceedings—even though Mr. Hernandezcueva’s medical condition meant that an 17 opportunity delayed was likely an opportunity lost. [Cf. Berroteran v. Super. Ct. of Los Angeles Cty. 18 (Cal., Mar. 7, 2022, No. S259522) 2022 WL 664719, at *14-15 (noting that full cross-examination is 19 appropriate during deposition when health conditions or other concerns make witness’s appearance 20 at trial uncertain).] UCC’s choice to forgo that opportunity for strategic reasons is not protected by 21 Evid. Code § 1291. Mr. Hernandezcueva’s testimony is admissible against UCC under Evid. Code § 22 1291(a)(2). 23 C. Mr. Hernandezcueva’s former testimony is admissible against UCC and 24 Elementis because E.F. Brady had an opportunity to cross-examine Mr. Hernandezcueva with an interest and motive similar to UCC and Elementis. 25 Pursuant to Evid. Code § 1292(a), former testimony is not made inadmissible by the hearsay 26 rule if the witness is unavailable to testify and a “party to the prior proceeding had the right and 27 28 7 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA 1 opportunity to cross-examine the declarant with an interest and motive similar to that which the party 2 against whom the testimony is now offered has at the present proceeding.” [See Moore v. Am. United 3 Life Ins. Co. (1984) 150 Cal.App.3d 610, 628-629; Pena v. Toney (1979) 98 Cal.App.3d 534, 540 4 (recognizing similar motive to discredit witness regarding stolen money).] 5 1. Evidence Code § 1292 excepts former testimony from hearsay exclusion between cross-examination by an entity with a similar motive in cross- 6 examining the witness ensures trustworthiness. 7 Section 1292 constitutes a specific exception to the hearsay rule. The rationale for the hearsay 8 exception is that the opportunity to cross-examine with a similar motive ensures the trustworthiness 9 of the testimony: “The trustworthiness of the former testimony is sufficiently guaranteed because the 10 former adverse party had the right and opportunity to cross-examine the declarant with an interest 11 and motive similar to that of the present adverse party.” [Editors’ Notes to Ev. C. §1292: Assem. 12 Comment on Judiciary.] Even though the party against whom the prior testimony is being used did 13 not cross-examine the witness, “it can be generally assumed that most prior cross-examination is 14 adequate if the same stakes are involved.” [Id.] 15 Defendants contest the adequacy of E.F. Brady’s cross-examination and assert that they would 16 have asked additional questions, but “[e]ven where the prior cross-examination was inadequate, there 17 is better reason here for providing a hearsay exception than there is for many of the presently 18 recognized exceptions to the hearsay rule.” [Id.] There is no requirement that the cross-examination 19 that was conducted have been perfect—or even adequate—if the entity performing that cross- 20 examination had a similar motive to the party seeking exclusion. 21 2. The similar motive and interest requirement relates to the motive in pursuing the testimony, not a general litigation position, and requires only a similar 22 motive, not an identical one. 23 The similar motive and interest requirement is not concerned with the party’s litigation 24 position generally. The Court must consider specifically whether E.F. Brady had a similar motive and 25 interest to UCC and Elementis in deposing Mr. Hernandezcueva. For example, in Berroteran, the 26 supreme court considered the similarity of interest and motive during “cross-examination at a 27 discovery deposition” and during cross-examination at trial. [2022 WL 664719, at *13.] In Pena v 28 8 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA 1 Toney, the court found that testimony from a hearing in a criminal proceeding was admissible in a 2 separate but factually related civil case because the party cross-examining the witness in the criminal 3 case had a similar motive and interest to the party challenging the testimony in the civil case: to 4 discredit the witness. [(1979) 98 Cal.App.3d 534, 540.] 5 Defendants point out that E.F. Brady had an opposing interest in blaming the product 6 manufacturer to deflect from its own negligence, but that opposing interest is not triggered in deposing 7 Mr. Hernandezcueva. During the deposition, these Defendants had the identical motive to eliminate 8 or minimize Mr. Hernandezcueva’s exposure to the same Hamilton joint compound, to dispute its 9 presence at Park Place when Mr. Hernandezcueva worked there, and to shift legal fault onto others 10 under Proposition 51 (e.g., onto Mr. Hernandezcueva’s employers). Even if E.F. Brady’s legal 11 defense caused its interests to later diverge from UCC’s and Elementis’s, its interest and motive in 12 deposing Mr. Hernandezcueva was fully aligned with UCC’s and Elementis’s. 13 3. E.F. Brady had a similar motive and interest to UCC and Elementis because all three Defendants seek to minimize Mr. Hernandezcueva’s exposure to the 14 same product and to shift blame to his employers. 15 Defendants dispute whether another party cross-examined Mr. Hernandezcueva with an 16 interest and motive similar to Union Carbide’s and Elementis’s, but E.F. Brady, UCC, and Elementis 17 had the common motive and interest in deposing Mr. Hernandezcueva of (1) minimizing or 18 eliminating his exposure to Hamilton asbestos-containing joint compound and (2) deflecting liability 19 for his injuries onto his employers. 20 First, E.F. Brady had a similar motive to cross-examine Mr. Hernandezcueva at the prior 21 proceeding because UCC, Elementis, and E.F. Brady are liable for the exact same asbestos-containing 22 product: Hamilton joint compound. If E.F. Brady can minimize or eliminate Mr. Hernandezcueva’s 23 exposure to the Hamilton joint compound it installed at Park Place, it not only eliminates itsown 24 liability, it exonerates UCC and Elementis as well. In other words, these defendants succeed or fail 25 together. E.F. Brady, UCC, and Elementis are thus perfectly aligned in their desire to minimize or 26 eliminate Mr. Hernandezcueva’s exposure to Hamilton joint compound at his jobsite, as well as to 27 blame his employer, Fluor Corporation. And, predictably, that is exactly what E.F. Brady attempted 28 9 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA 1 to do at trial [See Ex. G to Adams Dec.: Opening Statement of E.F. Brady in which it immediately 2 presents its “shell and core” defense (i.e., no exposure) and blames Mr. Hernandezcueva’s employer.] 3 Second, E.F. Brady’s motive to shift legal fault pursuant to Civil Code § 1431.2 (Proposition 4 51) to Mr. Hernandezcueva’s employers is not only similar to UCC’s and Elementis’s motive, but 5 identical. All three defendants have a strong motive to blame Mr. Hernandezcueva’s employers for 6 purportedly violating OSHA requirements, for failing to test the joint compound or wallboard for the 7 presence of asbestos before demolition, and for failing to provide a mask or other breathing protection 8 to Mr. Hernandezcueva when he was performing his work. E.F. Brady, UCC, and Elementis are 9 perfectly aligned in this regard, and E.F. Brady cross-examined Mr. Hernandezcueva on matters 10 relevant to his employers’ liability. 11 Moreover, many of the criticisms of E.F. Brady’s cross-examination made by Defendants are 12 nonsensical given the limits on Mr. Hernandezcueva’s personal knowledge. For example, Defendants 13 complain that no questions were asked that mentioned UCC or Elementis, addressed the supply of 14 asbestos fiber for Hamilton joint compound, or sought “to prove UCC and Elementis had no liability.” 15 [Mtn. at 17:26-18:2] But Mr. Hernandezcueva did not install the joint compound or even see it 16 installed. He would have known nothing about the joint compound or the fiber suppliers for that joint 17 compound that were used 20 years before he arrived as a janitor at Park Place in 1992. Mr. 18 Hernandezcueva simply had no basis for personal knowledge of these matters. He also had no basis 19 for personal knowledge of repairs made to the premises and joint compound products that might have 20 been removed or applied during those repairs in the intervening 16 years between E.F. Brady’s 21 installation of Hamilton joint compound and Mr. Hernandezcueva’s time at Park Place. [Mtn. 18:23- 22 19:3] Defendants call this “a critical area of inquiry that was not explored during Mr. 23 Hernandezcueva’s deposition and would have been explored had counsel for UCC or Elementis been 24 present.” [Id.] But again, Mr. Hernandezcueva had no possible basis for personal knowledge of those 25 events because they occurred before he arrived at Park Place. 26 27 28 10 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ UNION CARBIDE CORPORATION AND ELEMENTIS CHEMICALS INC.’S MOTION IN LIMINE NO. 3 TO EXCLUDE THE FORMER TESTIMONY OF JOEL HERNANDEZCUEVA 4. Case law supports admission of Mr. Hernandezcueva’s former testimony. 1 Defendants rely on Gatton v. A.P. Green Services (1998) 64 Cal.App.4th 688 in support of 2 their argument that E.F. Brady did not have a similar motive to theirs, but the case is inapposite. The 3 plaintiffs in Gatton, a wrongful death action, sued A.P. Green Services, Inc., contending it was 4