Judge: Bruce G. Iwasaki, Case: 21STCV04792, Date: 2025-06-13 Tentative Ruling

Case Number: 21STCV04792    Hearing Date: June 13, 2025    Dept: 14

SUPERIOR COURT OF THE STATE OF CALIFORNIA¿¿  

FOR THE COUNTY OF LOS ANGELES  

DEPARTMENT 14¿ 

¿ 

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

I.                Background

On February 4, 2021, Plaintiffs Shahab Laal and Safieh Farshadnia filed their complaint for personal injury alleging Mr. Laal developed mesothelioma from occupational exposure to asbestos and asbestos-containing products while working as a junior architect from 1981 to 1984, and direct non-occupational exposure to asbestos-containing personal hygiene products, automotive repair products, home and garden maintenance products, and while making art between 1975 and 2013. On May 8, 2021 Mr. Laal died. Thereafter, on May 5, 2022, Plaintiffs Safieh Farhadnia, Azal Laal, Shiveh Servat Lawwl and Dastan Manju Laal (“Plaintiffs”) filed the operative wrongful death complaint, and for the first time named Gold Bond Co. LLC (“Gold Bond” or “Defendant”) as a defendant. As against Gold Bond Plaintiffs allege that Mr. Laal was exposed to asbestos contaminated Gold Bond talcum powder products between 1975 and 2013.

On March 10, 2025, Gold Bond filed its motion for summary adjudication arguing that Plaintiffs’ discovery responses are factually devoid of specific facts supporting Plaintiffs’ third cause of action for false representation and fourth cause of action for intentional tort/concealment. Specifically, Gold Bond argues that Plaintiffs’ discovery responses are factually devoid as to evidence of a false representation that Mr. Laal relied upon. Defendant also argues that Plaintiffs fail to raise an issue of fact regarding fraudulent concealment. Finally, Gold Bond argues that Plaintiffs’ discovery responses are factually devoid as to specific facts supporting malice, fraud, or oppression on the part of its officers, directors, or managing agents.

On May 23, 2025, Plaintiffs filed their opposition arguing that their discovery responses were not factually devoid, and in the alternative, that they present sufficient evidence to create a triable issue of material fact as to their causes of action for false representation or fraudulent concealment and claim for punitive damages. On June 2, 2025, Gold Bond filed its reply.

The court finds that Plaintiffs’ discovery responses were factually devoid as to specific facts supporting Plaintiffs’ third cause of action for false representation and fourth cause of action for fraudulent concealment. The court also finds that Plaintiffs fail to present admissible evidence sufficient to create a triable issue of material fact as to Mr. Laal’s reliance on a false representation by Gold Bond. Therefore, Defendant’s motion for summary adjudication as to Plaintiffs’ third cause of action for fraudulent misrepresentation is granted.   

The court also finds that Plaintiffs’ discovery responses were factually devoid as to specific facts showing that Defendant intentionally concealed the dangers of their products. Plaintiffs likewise fail to present evidence sufficient to create a triable issue of material fact as Defendant’s intentional concealment. Therefore, Defendant’s motion for summary adjudication for Plaintiffs’ fourth cause of action for fraudulent concealment is granted.

Finally, the court finds that Plaintiffs’ discovery responses are factually devoid as to specific facts supporting Plaintiffs’ claim for punitive damages. Plaintiffs likewise fail to present sufficient evidence of malice, fraud, or oppression on the part of an officer, director, or managing agent of Defendant. Therefore, Defendant’s motion for summary adjudication as to Plaintiffs’ claim for punitive damages is granted.

II.             Evidentiary Objections:

Defendant’s Objections:

Overruled:

Sustained:

1.  Seitz declaration exhibit 2 “a true and correct copy of the relevant portions of the deposition of Matthew Lochstampfor starting on November 2, 2022” is inadmissible hearsay. Plaintiffs fail to rebut the general rule against the admissibility of former deposition testimony. (Berroteran v. Superior Court (2022) 12 Cal.5th 867, 895 [“The party urging admission of deposition testimony bears the burden of rebutting the general rule by submitting appropriate information justifying the admission of designated deposition testimony.”].) Plaintiffs offer no evidence or argument to support the admissibility of this deposition, and specifically do not address whether this deposition was intended to serve as a trial preservation transcript, a subsequent agreement was made to use the deposition as trial testimony, or that any of the Berroteran factors bear in favor of the admissibility of the deposition.

Separately, the court notes Plaintiffs did not cite to Mr. Lochstampfor’s deposition in their separate statement. The court has discretion to disregard evidence that is not within either party’s separate statement. (Ghazarian v. Magellan Health, Inc. (2020) 53 Cal.App.5th 171, 183.) [“A trial court's decision to consider or not consider evidence outside the separate statement is reviewed for an abuse of discretion.”].)

3. Seitz declaration exhibit 3, “a true and correct copy of the relevant portions of the deposition of Matthew Lochstampfor starting on March 7, 2018.” is inadmissible for the same reasons described in no. 1.

4. Seitz declaration exhibit 4, “a true and correct copy of the relevant portions of the deposition of Matthew Lochstampfor starting on November 16, 2021” is inadmissible for the same reasons described in no. 1

III.           Discussion

A.    Legal Standards

A defendant seeking summary judgment must “conclusively negate[] a necessary element of the plaintiff’s case, or . . . demonstrate[] that under no hypothesis is there a material issue of fact that requires the process of trial.”  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.)  To show that a plaintiff cannot establish an element of a cause of action, a defendant must make the initial showing “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)  “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence – as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855.) “ ‘If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiff’s factually devoid discovery responses.’ ”  (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1440.)

B.    Standards for False Representation

In an action for fraudulent or intentional misrepresentation, a plaintiff is required to show (1) false representation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. [citation.]” (Burch v. CertainTeed Corporation (2019) 34 Cal.App.5th 341, 353 citing Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) “ ‘It is settled that a plaintiff, to state a cause of action for deceit based on a misrepresentation, must [prove] that he or she actually relied on the misrepresentation.’ [Citation.].” (Id. at p. 353, citing Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1089.)

Similarly, false representation under Restatement of Torts section 402B establishes “liability for injuries caused by justifiable reliance on false advertising.” (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1750.) Under this section “ ‘[o]ne engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though [¶] (a) it is not made fraudulently or negligently, and [¶] (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.’ [Citation.]” (Id. at pp. 1750-1751.) “The rule ‘is one of strict liability for physical harm to the consumer, resulting from a misrepresentation of the character or quality of the chattel sold, even though the misrepresentation is an innocent one, and not made fraudulently or negligently.’ [Citation.]” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 114.) Under section 402-B, the “‘reliance need not necessarily be that of the consumer who is injured. It may be that of the ultimate purchaser of the chattel . . . who because of such reliance passes it on to the consumer who is in fact injured, but is ignorant of the misrepresentation.’ [Citation.]” (Westlye, supra, 17 Cal.App.4th at p. 1751.)

Defendant argues that it is entitled to summary adjudication of Plaintiffs’ third cause of action because Plaintiff’s discovery responses are factually devoid as to specific facts showing that Mr. Grundfast relied on any false representations by Defendant. Specifically, Defendant argues: “Plaintiffs do not have and cannot reasonably obtain, any evidence that GBC ever made any sort of statement to Decedent, much less a false statement that he ever relied upon or that he was damaged by such reliance.” (Motion at p. 16.)  

1.     Defendant’s Burden: Factually Devoid

Gold Bond presents sufficient evidence to make a prima facie showing that Plaintiffs lack and cannot reasonably obtain needed evidence of Mr. Laal’s reliance upon any representations made by Defendant. Defendant points to Plaintiffs’ written discovery responses and deposition testimony. Defendant does not appear to have propounded a special interrogatory on Plaintiffs specifically directed to Plaintiffs’ fraud causes of action. (See Defendant’s index of exhibits, Ex. D.) In special interrogatory no. 4, Defendant generally asked Plaintiffs to “IDENTIFY each PERSON with knowledge of facts relating to DECEDENT'S alleged EXPOSURE” (Defendant’s index of exhibits, ex. D at p. 4.) Plaintiffs responded by referring back to their response to the general “all facts” special interrogatory no. 1. (Defendant’s index of exhibits, ex. E at p. 10.) As pertinent to witness identification, Plaintiffs’ response reads: “Plaintiffs identify Mr. Laal, his wife, Plaintiff Safieh Farshadnia, and Mr. Laal's co-workers 22 as witnesses to Decedent's use of Chattem's Gold Bond products.” (Id. at p. 8.)

Defendant also propounded requests for production nos. 23 and 24 which asked Plaintiffs to produce “All DOCUMENTS that support YOUR allegation that CHATTEM is liable for False Representation Under Restatement of Torts Section 402-B as alleged in YOUR Complaint” and “All DOCUMENTS that IDENTIFY any PERSON who has knowledge of any fact that  supports YOUR cause of action for False Representation Under Restatement of Torts Section 402-B against CHATTEM.” (Defendant’s Index of Exhibits Ex. F at p. 8.) Plaintiffs’ responses  to these requests refer back to Plaintiffs’ response to request for production no. 1 which des not identify any specific document pertinent to the issue of false representation. (Defendant’s Index of Exhibits Ex. G at 10-11, 2-4.)

Gold Bond also directs the court’s attention to deposition testimony from Ms. Farshadnia and the stipulations from other Plaintiffs. The majority of the Plaintiffs, Mr. Laal’s children, stipulated that they would not be offered “as witnesses as to GBC in support of: (a) Plaintiffs’ Third Cause of Action for False Representation under Restatement of Torts Section 402-B; (b) Plaintiffs’ Fourth Cause of Action for Intentional Tort/Intentional Failure to Warn/Concealment; and (c) Plaintiffs’ claim for Punitive Damages.” (March 10, 2025 stipulation.) In her deposition Ms. Farshadnia stated that none of her husband’s co-workers would have witnessed her husband’s use of Gold Bond. (Defendant’s index of exhibits, Ex. H Farshadnia depo at 152:22-25 [“Do you know any of those co-workers who would have -- who witnessed his Gold witnessed his Gold Bond usage? A No.”].) Ms. Farshadnia likewise stated she had never seen any advertisements for Gold Bond. (Id. at 145:6-11 [“Q Do you ever recall seeing advertisements for Gold Bond? A No. Q Do you have any print advertisements of Gold Bond in your possession? A. No.”].) Finally, Ms. Farshadnia stated she was unaware of any false or misleading statements made by Gold Bond Co. to either her or her husband. (Defendant’s index of exhibits Ex. H at 154:22-155:2 [“Q. Are you aware of any false -- false or misleading statements made by Chattem to you? A. No. Q. Are you aware of any false or misleading statements made to your husband? A No.”].)

In opposition, Plaintiffs argue that their discovery responses were not factually devoid. Specifically, Plaintiffs argue: “Defendant Gold Bond has not presented evidence showing that Plaintiffs do not have and cannot reasonably obtain evidence needed to establish false representation or concealment.” (Opposition at p. 5.) Plaintiffs further argue: “No matter how many times Defendant Gold Bond claims that Plaintiffs do not have evidence to support their case, the conclusion remains the same: Defendant Gold Bond has not presented evidence showing that Plaintiffs do not have and cannot reasonably obtain needed evidence.” (Ibid.)

            In reply, Gold Bond maintains it satisfied its initial moving burden. Defendant argues: “GBC’s discovery requests to Ms. Farshadnia are similar to the Judicial Council form interrogatory No. 17.1 in that the requests ask for documents, witnesses, and facts that support Plaintiff’s fraud and punitive damages claims.” (Reply at p. 7.) Defendant further argues: “It is also important to note that GBC’s evidence veers from the evidence provided in Union Bank in that GBC also supports its Motion with deposition testimony.” (Id. at p. 8.)

Plaintiffs’ discovery responses are factually devoid as to specific facts to support their cause of action for intentional misrepresentation. To provide factually sufficient discovery responses, Plaintiffs’ discovery responses were required to provide specific facts to support each of the elements of the negligent misrepresentation cause of action, including Mr. Laal’s justifiable reliance on a misrepresentation of fact by Defendant. (See Burch, supra, 34 Cal.App.5th at p. 353; Westlye, supra, 17 Cal.App.4th at pp. 1750-1751.) The only parties capable of competently testifying to whether Mr. Laal was exposed directly or indirectly to a misrepresentation of fact, and his actual reliance on that representation, are Mr. Laal himself and the people who knew him during the period he allegedly relied on those representations. Unfortunately, Mr. Laal passed away before he could be asked whether he directly or indirectly relied on any representations of fact from Gold Bond.

Plaintiffs stipulated that amongst the Plaintiffs, only Ms. Farshadnia would provide evidence to support product identification, the causes of action for fraud, and the claim for punitive damages. (March 10, 2025 stipulation.) Ms. Farshadnia had no information regarding any representations made by Gold Bond to Mr. Laal, or any information regarding whether she or Mr. Laal received any misrepresentations of fact from Gold Bond Co. (Defendant’s index of exhibits, Ex. H Farshadnia depo at 145:6-11, 154:22-155:2.) Ms. Farshadnia also confirmed that, contrary to Plaintiffs’ responses to special interrogatory no. 4, Mr. Laal’s co-workers would not have any knowledge regarding his use of Gold Bond powder. (Id. at 154:22-155:2)

 Plaintiffs written  discovery responses also did not provide any specific facts regarding any representations made by Gold Bond, or Mr. Laal’s reliance on any such representation. Therefore, while deposition testimony is not always sufficient to give rise to the inference that a plaintiff lacks and cannot reasonably obtain needed evidence, here Defendants have presented sufficient evidence to show that Plaintiffs lack and cannot reasonably obtain needed evidence of a misrepresentation of fact made by Defendant which Mr. Laal actually relied upon. (See Weber, supra, 143 Cal.App.4^th at 1442 [“We do not hold that a defendant never will be able to meet its initial burden of persuasion without propounding special interrogatories or engaging in extensive discovery. In [McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098], for example, the defendant was able to negate causation simply by showing that the plaintiff would have identified the defendant's product had the plaintiff been exposed to it.”].)

2.     Plaintiffs’ Burden:

The court finds Plaintiffs fail to present evidence sufficient to create a triable issue of material fact as to their third cause of action for fraudulent misrepresentation. In opposition, Plaintiffs rely on four pieces of evidence to create a triable issue of material fact. As noted, the court finds that three of these pieces of evidence, Mr. Lochstampfor’s deposition in three other cases, are inadmissible hearsay because Plaintiffs provided no evidence or argument that this testimony satisfied the requirement of Evidence Code sections 1291 or 1292. The only admissible evidence Plaintiffs present is Gold Bond’s standard interrogatory responses in this case. (Seitz Decl. Ex. 1.) Plaintiffs do not cite to or rely upon this evidence in their separate statement.

In reply, Gold Bond argues Plaintiffs have presented no evidence sufficient to create a triable issue of material fact as to Plaintiffs’ fraud causes of action.  “Aside from the inadmissible deposition testimony of Mr. Lochstampfor, Plaintiffs provide no evidence to defeat GBC’s Motion. Plaintiffs’ respond to GBC’s Separate Statement of Undisputed Material Facts but provide no new affirmative evidence that would prove any triable issue of material fact. As such, Plaintiffs failed to meet their burden under Code of Civil Procedure section 437c, and the Court must summarily adjudicate Plaintiff’s causes of action for false representation, intentional tort/intentional failure to warn/concealment, and claim for punitive damages.” (Reply at p. 10.)

The court finds Plaintiffs fail to establish a triable issue of material fact as Mr. Grundfast’s justifiable reliance on a false representation of fact. In opposition, the only admissible evidence Plaintiffs present are Defendant’s responses to standard interrogatories. The portion of these interrogatories Plaintiffs direct the courts attention to states only Defendant’s corporate history. (Seitz Decl. Ex. 1.) The cited portion of the interrogatories reads in full:

“CHATTEM is believed to have been founded as The Chattanooga Medicine Company in 1879, and it was incorporated as a Tennessee corporation in 1909. In 1966, the name of the company was changed to CHATTEM Drug & Chemical Company. Since 1978, the company has operated under the name CHATTEM, Inc. On March 10, 2010, Sanofi-Aventis completed the acquisition of 100% of CHATTEM, which is now a wholly owned subsidiary of Sanofi or one of its affiliated entities. CHATTEM maintained its principal place of business in Chattanooga Tennessee from the time it was incorporated until 2019, and its current principal place of business is located in New Jersey.

CHATTEM manufactures and markets branded consumer health care products, which include health and beauty products, cosmetics, over-the-counter drugs, and dietary supplements to sell to its retail customers. CHATTEM acquired the rights to market, distribute, and sell the Gold Bond® products from Martin Himmel, Inc. and its principal stockholder Jeffrey S. Himmel (“MHI”) in April 1996. CHATTEM did not develop the Gold Bond products for which rights were acquired in April 1996. Information available generally shows that the Gold Bond product (original powder formula) dates back to 1882, and it became “medicated” in or around 1908. The original product was manufactured and distributed in the Northeast area of the United States, but when MHI purchased the brand in approximately 1990, distribution expanded and became nationwide. Since CHATTEM acquired the rights related to the Gold Bond products in April 1996, there have been line extensions under the Gold Bond brand.”  (Seitz Decl. Ex. 1.)

This evidence does not present any facts regarding any misrepresentation made by Defendant, either directly or indirectly, to Mr. Laal which Mr. Laal subsequently relied upon. Accordingly, Plaintiffs fail to present evidence sufficient to create a triable issue of material fact as to their third cause of action for false representation. Defendant Gold Bond’s motion for summary adjudication for Plaintiffs’ third cause of action is granted.

C.    Standards for Fraudulent Concealment

The elements of a cause of action for fraudulent concealment are: “(1) the defendant concealed or suppressed a material fact; (2) the defendant was under a duty to disclose the fact to the plaintiff; (3) the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as they did if they had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff sustained damage.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311, citing Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.)

Element two, sometimes referred to as the special relationship requirement, means that there are four circumstances which can give rise to actionable fraud by non-disclosure or concealment: “ ‘(1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.]’ ” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) In the absence of a fiduciary relationship between a plaintiff and a defendant, “As a matter of common sense, such a relationship can only come into being as a result of some sort of transaction between the parties.” (Id. at p. 337.)

In Bader v. Johnson & Johnson (2022) 86 Cal.App.5th 1094, 1132 the court considered whether there was prejudicial error for defendant when the trial court failed to give a jury instruction on the transaction requirement for fraudulent concealment. The court held, even assuming that failing to give the instruction an error, there was no prejudice because the plaintiffs had presented evidence: “that [plaintiff] lived with her parents growing up, her mom used and kept JBP in the house, and [plaintiff] used JBP on her siblings as a kid and then on herself from age 11 to about age 13. There was also evidence showing that J&J was involved in retail sales of JBP to consumers and profited therefrom.” (Bader, supra, 86 Cal.App.5th at p. 1132) The court found this evidence sufficient because it concluded the special relationship requirement of fraudulent concealment may be satisfied even in the absence of a direct transaction between defendant and plaintiffs where there is “similar evidence of transactions, advertising, or [defendant’s] direct monetary benefit.” (Ibid.)

Here, Defendant argues that Plaintiffs discovery responses are factually devoid because “Plaintiffs have no evidence of fraud as to GBC.” (Motion at p. 17.)

1. Defendant’s Burden: Factually Devoid

            Defendant satisfies its burden to show that Plaintiffs’ discovery responses were factually devoid as to evidence of a special relationship between Mr. Laal and Gold Bond Co. sufficient to give rise to a duty to disclose. The parties’ arguments regarding Defendant’s initial burden are identical as those discussed regarding fraudulent misrepresentation. For the same reasons discussed, the court finds the deposition testimony of Ms. Farshadnia and the stipulations of the remaining plaintiffs are sufficient evidence to raise the inference that Plaintiffs’ lack and cannot reasonably obtain needed evidence to support their cause of action for fraudulent concealment.

Moreover, as pertinent to fraudulent concealment, Plaintiffs’ written discovery responses do not contain sufficiently specific facts regarding Gold Bond’s actual knowledge of the dangers of its products sufficient to show that Gold Bond intentionally concealed or suppressed the dangers of its product to defraud Plaintiffs. Plaintiffs’ discovery responses present at least some evidence of existence of a “special relationship” between Mr. Laal and Gold Bond. According to Ms. Farshadnia testified that both she and her husband purchased Gold Bond products from a number of retailers including Safeway, CVS, and Longs. (Defendant’s index of exhibits Ex. H at 146:19-147:5 [“You mentioned -- I think I heard CVS, Longs, and Safeway, but that you just - - you bought Dr. Scholl's wherever you happened to be shopping. Is there any -- what were the stores that you bought Gold Bond at? A The same story. Wherever I was and it was available. Q And would you typically purchase the Gold Bond, or would your husband? A He would mainly buy his things, but if I am doing shopping, and he I would ask him if he needs something, I would get it if it was there.”].) As in Bader, there is evidence that Mr. Laal and Ms. Farshadnia purchased and used Defendant’s products, and evidence of “transactions, advertising, or [defendant’s] direct monetary benefit.” (Bader, supra, 86 Cal.App.5th at p. 1132.)

However, Plaintiffs’ discovery responses do not provide specific facts to support Gold Bond’s knowledge that its products were dangerous or that it intentionally concealed this knowledge. Plaintiffs’ response to special interrogatory no. 1 lays out their theory of Gold Bond’s knowledge of the hazards of asbestos in its products sufficient to constitute fraud:

“Chattem admits that it knew in the ‘early or mid to late '70s’ that talc causes damage to the lungs through prolonged exposure. (Lochstampfor Deposition, Woods, 11/16/21) Chattem knew there were studies and data to that effect, Chattem had their own "safety officer" in the 70s that had experience and was aware of the literature regarding the health hazards of prolonged exposure to talc, and it was ‘common knowledge.’ (Lochstampfor Deposition, Woods, 11/16/21) Chattem admits that all forms of asbestos can cause mesothelioma. (Lochstampfor Deposition, Woods, 11/16/21)

When Chattem purchased the Gold Bond product line in 1996, Chattem did not test the Gold Bond products to make sure they did not contain asbestos. (Lochstampfor Deposition, When Chattem purchased the Gold Bond product line in 1996, Chattem did not test the Gold Bond products to make sure they did not contain asbestos. (Lochstampfor Deposition, Woods, 6 11/16/21) In the 24-25 years Chattem owned and manufactured the Gold Bond line of talc powder products, Chattem itself only conducted testing of the talc that went into its Gold Bond products one time, in 2012, on only three samples, for the sole purpose of selecting an alternate talc supplier. Chattem never tested the talc that went into its Gold Bond products for the presence of asbestos, or to ensure their products were safe for use by consumers. (Lochstampfor Deposition, Woods, 11/16/21)” (Defendant’s index of exhibits, Ex. E.)  

 Missing from these discovery responses is any evidence that Gold Bond knew that exposure to its products would expose end users to an increased risk of asbestos related disease. (See McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 873 [“What the evidence does not show is that defendant's executives knew there were ‘probable dangerous consequences’ from trace levels of asbestos in its talc, and deliberately did nothing to avoid them.”]) As discussed further herein regarding Plaintiffs’ claim for punitive damages, Plaintiffs do not present any specific facts showing that Gold Bond knew that its products contained asbestos. For instance, Plaintiffs do not present any specific facts showing that Defendant was in possession of testing records showing the presence of asbestos within their products. (See Bader, supra, 86 Cal.App.5th at 1133 [“Colgate's XRD testing detected tremolite in Italian and North Carolina talc, and tremolite and anthophyllite in Montana talc in 1976. In 1974, McCrone found chrysotile asbestos in North Carolina Regal talc and in Cashmere Bouquet. Dr. Longo confirmed that, with TEM, the 1974 pictures from McCrone showed chrysotile asbestos, and Dr. Sanchez did the same”].)

Plaintiffs’ discovery responses indicate that at some point some testing of Gold Bond powder and its source ores was conducted and that asbestos was found. (See Defendant’s index of exhibits, Ex. G at p. 6 [“Montana talc used in Gold Bond finished talc powder products contained asbestos. Dr. William Longo, a material scientist and electron microscopist specializing in the analysis of asbestos containing materials, including talc, using various analytical methodologies and equipment, identified chrysotile asbestos in 21 of 21 containers of Gold Bond talc powder products, or 100% of the Gold. Bond talc products tested, and chrysotile asbestos in 6 of 6 aliquots of Montana talc ores, or 100% of the Montana talc ores tested. Talc mined from the Montana mines has consistently been found to contain asbestos.”].) However, Plaintiffs fail to identify when such testing occurred, and whether Defendant knew of the results of this testing. In the absence of any facts showing that Defendant was aware of these testing results during the period Mr. Laal was purchasing Gold Bond, Plaintiffs’ discovery responses are factually devoid as to specific facts showing that Gold Bond “intentionally concealed or suppressed” the danger of its products “with the intent to defraud the plaintiff” (Bigler-Engler, supra, 7 Cal.App.5th at p. 310.)

2.  Plaintiffs’ Burden

               Plaintiffs fail to present evidence sufficient to create a triable issue of material fact as to their cause of action for fraudulent concealment. The only admissible evidence Plaintiffs present on this motion are standard interrogatory responses made by Defendant in this case. (See section B(2) supra.) These standard interrogatory responses only address the corporate history of Defendant. (Seitz Decl. Ex. 1.) Accordingly, the court finds that there is no admissible evidence to support Plaintiffs’ fourth cause of action for fraudulent concealment. Therefore, Defendant’s motion for summary adjudication as to Plaintiffs’ fourth cause of action is granted.

D.    Standards for Punitive Damages

When the motion targets a request for punitive damages, a higher standard of proof is at play. “Although the clear and convincing evidentiary standard is a stringent one, ‘it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment [or summary adjudication.’  [Citations.]  Even so, ‘where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.’  [Citation.]”  (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1158-1159.) For a corporate defendant, the oppression, fraud or malice “must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).) That requirement can be satisfied “ ‘if the evidence permits a clear and convincing inference that within the corporate hierarchy authorized persons acted despicably in “willful and conscious disregard of the rights or safety of others.” ’  [Citation.]” (Morgan v. J-M Manufacturing Company, Inc. (2021) 60 Cal.App.5th 1078, 1090.)

For a corporate defendant, the oppression, fraud or malice “must be on the part of an officer, director, or managing agent of the corporation.”  (Civ. Code, § 3294, subd. (b).)  That requirement can be satisfied “ ‘if the evidence permits a clear and convincing inference that within the corporate hierarchy authorized persons acted despicably in “willful and conscious disregard of the rights or safety of others.” ’  [Citation.]”  (Morgan v. J-M Manufacturing Company, Inc. (2021) 60 Cal.App.5th 1078, 1090.)  A plaintiff also “can satisfy the ‘managing agent’ requirement ‘through evidence showing the information in the possession of the corporation and the structure of management decision making that permits an inference that the information in fact moved upward to a point where corporate policy was formulated.’  [Citation.]”  (Id. at p. 1091.)

“ ‘[I]ntentionally marketing a defective product knowing that it might cause injury and death is ‘highly reprehensible.’  [Citation.]”  (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 85.)  Punitive damages may be available when a defendant knows the dangers of asbestos, took action to protect its own employees from the hazard, knew that its products were likely to pose a danger to users, and did not warn them.  (Pfeifer v. John Crane, Inc. (2013) 220 Cal.Ap.4th 1270, 1300.)  Such evidence “was sufficient to show malice, that is, despicable conduct coupled with conscious disregard for the safety of others.”  (Id. at pp. 1300-1301.)

Gold Bond argues that Plaintiffs’ discovery responses are factually devoid as to evidence of malice, fraud, or oppression on the part of an officer, director, or managing agent of Defendant. Motion at p. 19 [“Here, the Plaintiffs have not met the clear and convincing evidentiary burden that could allow a reasonable jury to make the requisite evidentiary finding of malice, fraud, or oppression underlying the Plaintiffs’ punitive damages claim.”].)

1.     Defendant’s Burden: Factually Devoid

Defendant satisfies its initial burden to show that Plaintiffs discovery responses are factually devoid as to specific facts supporting malice, fraud, or oppression on the part of an officer, director, or managing agent of Caterpillar. In addition to the discovery responses discussed, Defendant additionally relies on Plaintiffs’ responses to Defendant’s special interrogatory no. 7.  Defendant’s special interrogatory no. 9 asked Plaintiffs  “If you contend that CHATTEM is liable to YOU for exemplary or punitive damages, please IDENTIFY all evidence that supports this contention, including DOCUMENTS supporting YOUR 19 contention and/or witnesses who have knowledge of any supporting facts.” (Defendant’s index of exhibits ex. D at p. 4.) Plaintiffs’ response refers back to their response to special interrogatory no. 1 which reads in pertinent part:

“Since its purchase of Gold Bond in 1996, Chattem has never placed a warning on its Gold Bond talc powder products that they contained asbestos, or that they were hazardous to human health. (Deposition of Matthew A. Lochstampfor, as Person Most Knowledgeable for Chattem, taken in the matter of Woods, et al. v. Kolmar Laboratories, Inc., et al., in the Supreme Court of the State of New 23 York, Seventh Judicial District, Index No. E2020003840, on November 16, 2021, hereinafter referred to as "Lochstampfor Deposition, Woods, 11/16/21"). Chattem admits that it knew in the ‘early or mid to late '70s’ that talc causes damage to the lungs through prolonged exposure. (Lochstampfor Deposition, Woods, 11/16/21) Chattem knew there were studies and data to that effect, Chattem had their own "safety officer" in the 70s that had experience and was aware of the literature regarding the health hazards of prolonged exposure to talc, and it was ‘common knowledge.’ (Lochstampfor Deposition, Woods, 11/16/21) Chattem admits that all forms of asbestos can cause mesothelioma. (Lochstampfor Deposition, Woods, 11/16/21)

When Chattem purchased the Gold Bond product line in 1996, Chattem did not test the Gold Bond products to make sure they did not contain asbestos. (Lochstampfor Deposition, Woods, 6 11/16/21) In the 24-25 years Chattem owned and manufactured the Gold Bond line of talc powder products, Chattem itself only conducted testing of the talc that went into its Gold Bond products one time, in 2012, on only three samples, for the sole purpose of selecting an alternate talc supplier. Chattem never tested the talc that went into its Gold Bond products for the presence of asbestos, or to ensure their products were safe for use by consumers. (Lochstampfor Deposition, Woods, 11/16/21) During the time period when Chattem sold Gold Bond talc powder products, the source of the talc used in Gold Bond talc powder products was Montana talc. (Lochstampfor Deposition, Woods, 13 11/16/21) Barretts Minerals, Inc. supplied the Montana talc used in Chattem's Gold Bond talc powders from 1996-2012. (Lochstampfor Deposition, Woods, 11/16/21). Whittaker, Clark & Daniels, Inc. was the talc distributor of cosmetic talc used in Chattem's Gold Bond talc powders "when Chattem assumed the [Gold Bond line of] products from Martin Himmel" in 1996. (Lochstampfor Deposition, Woods, 11/16/21) When Chattem purchased and assumed the Gold Bond product-line of talc powder products from Martin Himmel, Whittaker, Clark & Daniels, Inc. was distributing the talc that came from Barretts. (Lochstampfor Deposition, Woods, 11/16/21). In 2012, Chattem got an alternate talc supplier, Imerys Talc America. (Lochstampfor Deposition, Woods, 11/16/21) The source of Imerys talc supplied to Chattem for its Gold Bond talc powders was Yellowstone, Montana. (Lochstampfor Deposition, Woods, 11/16/21) Chattem removed talc from its Gold Bond powder products in 2021. (Lochstampfor Deposition, Woods, 11/16/21).

Montana talc used in Gold Bond finished talc powder products contained asbestos. Dr. William Longo, a material scientist and electron microscopist specializing in the analysis of asbestos containing materials, including talc, using various analytical methodologies and equipment, identified chrysotile asbestos in 21 of 21 containers of Gold Bond talc powder products, or 100% of the Gold. Bond talc products tested, and chrysotile asbestos in 6 of 6 aliquots of Montana talc ores, or 100% of the Montana talc ores tested. Talc mined from the Montana mines has consistently been found to contain asbestos.”  (Defendant’s index of exhibits, Ex. E at pp. 4-6.)

            Based on these discovery responses, the court finds that Plaintiffs’ discovery was factually devoid as to specific facts supporting their claim for punitive damages. Plaintiffs’ written discovery responses contain no specific facts showing when Gold Bond Co. acquired actual knowledge that its products contained asbestos. Plaintiffs’ discovery responses state that Gold Bond had knowledge that prolonged exposure to talc causes damage to the lungs and that Gold Bond knew that asbestos can cause mesothelioma. (Defendant’s Index of Exhibits Ex. E at p. 4.) However, Plaintiffs provide no specific facts showing that Defendant knew there was asbestos in the talc it used, or that exposure to talc generally presented a known risk of harm to end users of Gold Bond product. As discussed, Plaintiffs fail to present any specific facts showing when Defendant first became aware of test results showing the presence of asbestos in its products. Moreover, as the court in McNeal discussed, a Defendant’s knowledge of the hazards of asbestos generally does not translate into knowledge that their talc based product was dangerous. (McNeal, supra, 80 Cal. App.5th at 874 [“Yes, defendant knew asbestos was an ‘unsafe ingredient’ if there were enough of it in the talc—meaning amounts experts would consider ‘significant enough to, over time, produce injury or illness.’ But no one knew exposure to talcum powder could cause mesothelioma until 1994—years after plaintiff's exposure to talc ended in 1980. Medical or scientific developments years after plaintiff's injury cannot establish defendant's executives knew of ‘probable dangerous consequences’ of contaminated talc before plaintiff's injury.”].) Although the finding of fact underpinning the McNeal court’s decision, that “no one knew exposure to talcum powder could cause mesothelioma until 1994” is not binding on this court, Plaintiffs fail to present specific facts showing when Gold Bond, or any other party, became aware that Gold Bond talcum powder products contained asbestos.

At most, Plaintiffs discovery responses raise the inference that Defendant was negligent in failing to test its products by only conducting one round of testing on the talc used in its products in 2012. (Defendant’s index of exhibits, Ex. E at p. 5.) However, negligently failing to test a product is not the same as the consciously disregarded the risk of selling known asbestos containing products. (See McNeal, supra, 80 Cal.App.5th at p. 873 [As indicated, defendant does not challenge the jury's finding that defendant's negligence caused harm to defendant. Thus, we assume the evidence supports a finding that defendant's testing was inadequate, and defendant negligently failed to warn its customers that its testing was not sensitive enough to guarantee its talc was entirely free of asbestos. [¶] What the evidence does not show is that defendant's executives knew there were “probable dangerous consequences” from trace levels of asbestos in its talc, and deliberately did nothing to avoid them.”].) Moreover, as Defendant’s argue, negligence is insufficient to support a claim for punitive damages. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 [“The drafters' [of Civil Code section 3294] goals were to avoid imposing punitive damages on employers who were merely negligent or reckless.”].)

Accordingly, the court finds that Plaintiffs’ discovery responses are factually devoid as to specific facts supporting their claim for punitive damages. Therefore, the burden shifts to Plaintiffs to establish a triable issue of material fact as to malice, fraud, or oppression on the part of an officer, director, or managing agent of Defendant sufficient to create a triable issue of material fact as to punitive damages.

2.     Plaintiffs’ Burden

            The court finds Plaintiffs fail to present sufficient evidence to create a triable issue of material fact as to malice, fraud, or oppression on the part of an officer, director or managing agent of Defendant. As discussed, the only admissible evidence Plaintiffs present on this motion are standard interrogatory responses made by Defendant in this case. (See section B(2) supra.) These standard interrogatory responses only address the corporate history of Defendant. (Seitz Decl. Ex. 1.) This corporate history does not provide any evidence to support Plaintiffs’ claim for punitive damages. Accordingly, the court finds that there is no admissible evidence to support Plaintiffs’ claim for punitive damages. Therefore, Defendant’s motion for summary adjudication is granted.

IV.           Conclusion

Defendant’s motion for summary adjudication regarding Plaintiffs’ third and fourth causes of action for fraudulent misrepresentation and fraudulent concealment are granted. Defendant’s motion for summary adjudication regarding Plaintiffs’ claim for punitive damages is granted. Defendant Gold Bond Co., LLC is ordered to give notice.