Judge: Bruce G. Iwasaki, Case: 23STCV07224, Date: 2025-06-04 Tentative Ruling

Case Number: 23STCV07224    Hearing Date: June 4, 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 April 3, 2023, Plaintiffs David Grundfast and Erika Cameron filed their complaint for wrongful death alleging Plaintiffs’ father, Michael Grundfast (“Mr. Grundfast”), developed mesothelioma from occupational exposure to asbestos and asbestos-containing products while working as a laborer, manager, and forklift operator in California from the mid-1970s through 1990. As against Defendant the Union Carbide Corporation. (“UCC” or “Defendant”) Plaintiffs allege that Mr. Grundfast was exposed to asbestos supplied by UCC to an employer, Ball Industries, which mixed raw asbestos into its products while Mr. Grundfast worked there in the mid-1970s.

On March 6, 2025, UCC filed its motion for summary adjudication arguing that Plaintiffs’ discovery responses are factually devoid as specific facts supporting Plaintiffs’ third cause of action for false representation and fourth cause of action for intentional tort/concealment. Specifically, Defendant argues that Plaintiffs’ discovery responses are factually devoid as to the reliance element required for false representation and the special relationship required for fraudulent concealment. On May 9, 2025, Plaintiffs filed their opposition arguing that their discovery responses were not factually devoid, and in the alternative, they present sufficient evidence to create a triable issue of material fact. On May 19, 2025, Defendant filed its reply. On June 3, 2025, the court held a hearing.

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. Grundfast’s reliance on a false representation by UCC or the existence of a special relationship between Mr. Grundfast and UCC.

Plaintiffs’ opposition fails to offer a separate statement of assertedly disputed material facts. It largely concedes that UCC’s statement of facts are undisputed.  Much of Plaintiffs’ opposition brief recites purported assertions wholly absent from any separate statement, and are grounded in evidence the court strikes as lacking in foundation. The court disregards these assertions. Plaintiffs fail to show that Mr. Grundfast relied on any purported false statement by UCC. They also fail to show any transactional relationship between Grundfast and Union Carbide that gave rise to a duty to disclose facts.

UCC’s motions for summary adjudication as to Plaintiffs’ third cause of action for fraudulent misrepresentation and fourth cause of action for fraudulent concealment are granted.

II.             Evidentiary Objections:

Defendant’s Objections:

Sustained:

1. Exhibits 4, 7, and 12 to the Seitz declaration: “Deposition of Jack Walsh, taken on October 20, 2011 in Tankersley v. CSK Auto, Inc., et. al., Alameda Superior Court Case No. RG1050610”; “Deposition of John Myers, taken on June 16, 2005, in In re Asbestos Litigation, Harris County of Texas”; and “Deposition of John Myers, taken in 2003” in an unspecified case are 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.”].)

2. Exhibits 9, 11, and 21 to the Seitz declaration: “a true and correct copy of 1972 Letter from Castor Oil Company to DuPont Company”; “a true and correct copy of Mellon Institute Report, July 11, 1966”; “Verma & Middleton, Occupational Exposure to Asbestos in the Drywall Taping Process, J. Am. Indus. Hygiene Ass’n (1980)” are inadmissible hearsay. Plaintiffs present no argument or explanation to support the admissibility of these documents.

            3. Defendant makes a blanket objection to Seitz exhibits 2, 5-6, 8, 10, 13-20, and 22-27. These blanket objections are not in the proper form. The text of Defendant’s objection only addresses Exhibit no. 2 and does not discuss the basis for its arguments as to any of the other exhibits. Nevertheless the court rules as follows:

Exhibit 2: Overruled. Exhibit 5: Overruled. Exhibit 6: Overruled. Exhibit 8: Sustained. Exhibit 10: Sustained. Exhibit 13: Overruled. Exhibit 14: Sustained. Exhibit 15: Sustained. Exhibit 16: Sustained. Exhibit 17: Sustained. Exhibit 18: Sustained. Exhibit 19 (erroneously marked as Exhibit 18): Sustained. Exhibit 20: Sustained. Exhibit 22: Sustained. Exhibit 23: Overruled. Exhibit 24: Overruled. Exhibit 25: Overruled.  Exhibit 26: Overruled. Exhibit 27: Sustained.

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 for false representation 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: “UCC is entitled to summary adjudication against the complaint’s third cause of action for false representation because Plaintiffs lack competent evidence to prove that UCC made an affirmative misrepresentation of fact to Mr. Grundfast that he then actually and justifiably relied on.” (Motion at p. 14.)  

1.     Defendant’s Burden: Plaintiffs’ Factually Devoid Discovery Responses

UCC presents sufficient evidence to make a prima facie showing that Plaintiffs lack and cannot reasonably obtain needed evidence of Mr. Grundfast’s reliance upon any representations made by Defendant. In support of its argument Defendant relies on Plaintiffs’ special interrogatory responses and the deposition testimony, including stipulations made during the depositions, of Plaintiffs two identified witnesses James Hurst and Kelly Melton. Defendant does not appear to have propounded a special interrogatory on Plaintiffs specifically directed to Plaintiffs’ fraud causes of action. Instead, Defendant directs the courts attention to Plaintiffs’ responses to special interrogatories no. 1 and 2 which generally asked Plaintiffs to identify the asbestos-containing products they allege Mr. Grundfast was exposed to and the facts supporting Plaintiffs’ allegations that UCC supplied the asbestos in those products. (Schultz Decl. Ex. C at p. 2-4.) As pertinent to the issue of fraudulent misrepresentation, Plaintiffs responses state:

“Plaintiffs allege that Mr. Grundfast was exposed to Union Carbide’s Calidria asbestos through the dumping of bags of asbestos for use in the products manufactured at Ball Industries… [¶] As for witnesses, Mr. Grundfast unfortunately passed away before he could be deposed. Plaintiffs identify James Hurts [sic] and Kelly Melton, who were co-workers with Mr. Grundfast at Ball Industries. Plaintiffs are not currently aware of the names of any other co-workers that will give product identification testimony as to Defendant, but Plaintiffs are continuing to investigate.” (Schultz Decl. Ex. C at p. 3.)

Defendant also directs the court’s attention to deposition testimony from the two witnesses identified in Plaintiffs’ special interrogatory responses, James Hurst and Kelly Melton. During their depositions, counsel for Plaintiffs stipulated that neither Mr. Hurst nor Mr. Melton would offer testimony in support of Plaintiffs’ intentional tort causes of action. (See Schultz Decl. Ex. D, Melton Depo, at 55:7-21 [“Defendants have met and conferred with plaintiffs, and we have come up with the following stipulation. My understanding is plaintiffs will stipulate that Mr. Kelly Melton will not be offering any product identification testimony with regard to any products that were not identified during Mr. Melton's direct examination today. Mr. Melton, likewise, will not be offering any testimony in support of plaintiff's intentional tort or punitive damage claims in this case. This stipulation applies to Mr. Melton at trial, deposition and via declaration; is that correct? MS. VINOCUR: Yes, so stipulated.”]; Ex. E, Hurst Depo, 50:10-21 [“plaintiffs stipulate that Mr. Hurst will not offer any product identification testimony which applies to equipment as well via deposition, at trial or via affidavit or declaration regarding any of the defendants that were not identified during the direct exam of Mr. Hurst's deposition just now. If I am correct, that stipulation also includes that Mr. Hurst will not be providing any testimony either by a deposition, declaration or trial regarding any intentional torts or punitive damage allegations plaintiffs are alleging. MS. VINOCUR: True.”].)           

In opposition, Plaintiffs argue that their discovery responses were not factually devoid. Specifically, Plaintiffs argue: “Defendant Union Carbide has not presented evidence showing that Plaintiffs do not have and cannot reasonably obtain evidence needed to establish their claims for false representation and concealment.” (Opposition at pp. 15-16.) Plaintiffs further argue: “No matter how many times Defendant Union Carbide claims that Plaintiffs do not have evidence to support their case, the conclusion remains the same: Defendant Union Carbide has not presented evidence showing that Plaintiffs do not have and cannot reasonably obtain needed evidence. Thus, Defendant Union Carbide’s motion should be denied because it has not satisfied its moving burden.” (Id. at p. 10.)

            In reply, Defendant maintains it satisfied its initial burden. Defendant argues: “Pages 9-12 of UCC’s motion discussed the evidence and multiple grounds that met UCC’s initial burden of production to support the motion for summary adjudication. The opposition ignores and hence does not dispute many of these grounds.” (Reply at p. 6.) UCC further argues: “UCC’s Undisputed Fact Nos. 8, 10, 19, and 21 established that Plaintiffs stipulated their two witnesses (Kelly Melton and James Hurst) had no information to support the fraud claims. This stipulation alone met UCC’s initial burden of production based on the following cases that the Opposition does not mention, let alone address.” (Ibid.)

The court finds that 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 were required to provide specific facts to support each of the elements of the negligent misrepresentation cause of action, including Mr. Grundfast’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.) As a matter of common sense, the only parties capable of competently testifying to Mr. Grundfast’s actual reliance on a representation are Mr. Grundfast himself and the people who knew him during the period he allegedly relied on those representations. Unfortunately, Mr. Grundfast passed away before he could be asked whether he directly or indirectly relied on any representations from UCC. Plaintiffs stipulated that the only two witnesses identified in their written discovery responses would not present evidence regarding Plaintiffs’ causes of action for fraud. (Schultz Decl. Ex. D, Melton Depo, at 55:7-21; Ex. E, Hurst Depo at 50:10-21.)   Therefore, while a lack of deposition testimony on a topic 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. (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:

Plaintiffs fail to present evidence sufficient to create a triable issue of material fact. In opposition, Plaintiffs argue that they present a triable issue of material fact as to fraudulent misrepresentation. Plaintiffs argue: “it is not necessary for a misrepresentation to have been made directly to Mr. Grundfast. Defendant Union Carbide is liable for misrepresentation with respect to any nondisclosure or affirmative misrepresentation that it made to its customers or the public… Defendant Union Carbide sold asbestos-containing products, knew the hazards of asbestos, and refused to disclose the hazards to its customers, including Mr. Grundfast’s employer, who in turn did not provide warnings to end users like Mr. Grundfast. As a result, Mr. Grundfast was unknowingly exposed to Union Carbide asbestos. There is sufficient evidence for a jury to reasonably conclude Union Carbide falsely represented its product to Mr. Grundfast.” (Opposition at p. 17.)

In reply, Defendant does not dispute that Plaintiffs were not required to present evidence of a direct misrepresentation from UCC to Mr. Grundfast. Instead, Defendant argues: “Hauter, Mirkin, and Cadlo confirm the settled law that supports summary adjudication against the third cause of action because there is no evidence that UCC made a misrepresentation of fact that Michael Grundfast actually and justifiably relied upon. (See OCM Principal Opportunities Fund v. CIBC World Markets (2007) 157 Cal.App.4th 835, 864 [“A plaintiff asserting fraud by misrepresentation is obliged to plead and prove actual reliance, that is, to ‘establish a complete causal relationship’ between the alleged misrepresentations and the harm claimed to have resulted therefrom.”].) (Reply at pp. 9-10.)

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, Plaintiffs present 28 exhibits of documentary evidence, the vast majority of which purport to be UCC corporate documents or depositions of UCC’s corporate representatives from previous cases. The only case specific documents from which Plaintiffs could present a triable issue of material fact as to the existence of a misrepresentation upon which Mr. Grundfast relied are deposition testimony of Mr. Kelly Melton (Seitz Decl. Ex. 1), and Plaintiffs’ own special interrogatory responses (Seitz Decl. Ex. 28.) Plaintiffs may not rely upon their own interrogatory responses as evidence. (Code Civ. Proc., § 2030.410 [“the propounding party or any party other than the responding party may use any answer or part of an answer to an interrogatory only against the responding party.”] Moreover, as discussed, Plaintiffs counsel expressly stipulated during Mr. Melton’s deposition that he would not present any evidence relating to Plaintiffs’ causes of action for intentional tort. (See Schultz Decl. Ex. D, Melton Depo, at 55:7-21.) The remaining admissible materials do nothing to show Mr. Grundfast justifiably relied on any representation of fact either directly or indirectly from UCC. There is, in short, no evidence in the record regarding what representations, if any, UCC made to either Mr. Grundfast or his employer, and no indication that Mr. Grundfast took any action in reliance on those representations. In the absence of this evidence, Plaintiffs fail to present a triable issue of material fact as their cause of action for fraudulent misrepresentation.

C.    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.)

With respect to the second element, sometimes referred to as the special relationship requirement, 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 was 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 “there was no transaction between UCC and Mr. Grundfast that is required to impose a duty to disclose facts to him.” (Motion at p. 19.)

1. Defendant’s Burden: Factually Devoid

            Defendant satisfies its burden to show that Plaintiffs’ discovery responses were factually devoid as to evidence of a transactional relationship between Mr. Grundfast and UCC 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 and stipulations of Mr. Melton and Mr. Hurst, 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’ discovery responses contain no specific facts supporting the existence of a “special relationship” between Mr. Grundfast and UCC. According to Plaintiffs’ discovery responses, Mr. Grundfast was exposed to UCC’s asbestos from working for Ball Industries which purchased asbestos for use in its products. (Schultz Decl. Ex. C at p. 3. [“Plaintiffs allege that Mr. Grundfast was exposed to Union Carbide’s Calidria asbestos through the dumping of bags of asbestos for use in the products manufactured at Ball Industries.”].)

Plaintiffs’ discovery responses are silent as to the existence of any kind of relationship between Mr. Grundfast and Defendant. There is, for instance, no indication that Mr. Grundfast purchased UCC’s products or was a customer for Calidria asbestos. In the absence of specific facts to support the existence of a special relationship between Mr. Grundfast and UCC, Plaintiffs’ discovery responses support the reasonable inference that Plaintiffs lack and cannot reasonably obtain needed evidence. Therefore, the burden passes to Plaintiffs to present evidence sufficient to create a triable issue of material fact.

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. In opposition, Plaintiffs argue: “There is a question of fact as to whether these ‘affirmative statement[s] [were] so misleading that it [gave] rise to a fraud cause of action even where the relationship or transaction would be insufficient to give rise to a generalized duty to disclose.’ (Bigler-Engler, supra, 7 Cal.App.5th at p. 312.) The jury could reasonably conclude that Union Carbide expected that by providing these mistruths to the its customers, like Ball Industries, that its customers, like Ball Industries, would not properly warn their employees or end users, like Mr. Grundfast. Union Carbide was aware of the hazards faced by the end users, as evidenced by their provision of protective equipment, including respirators, to its own employees and calculated marketing techniques to undermine the toxicity and carcinogenicity of their Calidria asbestos fiber, and so the jury could infer that Union Carbide’s statements were directed at its customers, like Ball Industries, the end users, like Mr. Grundfast.” (Opposition at p. 22.)

            In reply, Defendant maintains that Plaintiffs present no evidence sufficient to support the existence of special relationship between Mr. Grundfast and UCC. Defendant argues: “There is no document and no testimony attached to the opposition to demonstrate UCC and Michael Grundfast entered into a transaction with each other to support a claim that UCC had a duty to disclose facts to him.” (Reply at p. 13.)

            The court finds that Plaintiffs fail to present evidence sufficient to create a triable issue of material fact as to their fourth cause of action for fraudulent concealment. As an initial matter, Plaintiffs improperly cite Kovich v. Paseo Del Mar Homeowners' Assn. (1996) 41 Cal.App.4th 863, 866 for the proposition “Liability for non-disclosure also arises in the absence of a special relationship where the defendant has actively concealed material facts.” (Opposition at p. 18) The relevant language in Kovich reads: “ ‘The general rule for liability for nondisclosure is that even if material facts are known to one party and not the other, failure to disclose those facts is not actionable fraud unless there is some fiduciary or confidential relationship giving rise to a duty to disclose. [Citation.] However, active concealment of facts and mere nondisclosure of facts may under certain circumstances be actionable without such a relationship. [Citation.] [¶] For example, a duty to disclose may arise without a confidential or fiduciary relationship where the defendant, a real estate agent or broker, alone has knowledge of material facts which are not accessible to the plaintiff, a buyer of real property. [Citation.]’ [Citation.]” (Ibid.) In full context, this case stands for the uncontroversial proposition that a duty to disclose may arise in the absence of a “confidential or fiduciary” relationship, not, as Plaintiffs represent, in the absence of any “special relationship” at all.

            Second, Plaintiffs’ effort to distinguish Bigler-Engler are unavailing. Plaintiffs argue: “This case is distinguishable from Bigler-Engler for two reasons. First, unlike the defendant in Bigler-Engler who sold its products and was unaware that it was being rented out to other consumers, Union Carbide sold its asbestos for use in Ball Industries products, knowing that its asbestos would be incorporated into products by employees of Ball Industries, and knowing that the manufacturers, including Ball Industries, were relying on them as to the hazards of their Calidria asbestos… Second, Union Carbide downplayed the risks of its products when it had full knowledge of how dangerous they were.” (Opposition at pp. 17-18) These efforts to distinguish Bigler-Engler do not address the fundamental issue, the utter absence of evidence of a relationship between Mr. Grundfast and UCC. As the court in Bigler-Engler stated: “An essential element underlying Engler's claim for intentional concealment, a duty to disclose, is absent here because there was no evidence of a relationship between Engler (or her parents) and Breg sufficient to give rise to a duty to disclose. (Bigler-Engler, supra, 7 Cal.App.5th at p. 314.) Here, as in Bigler-Engler, UCC did not transact with Mr. Grundfast or Plaintiffs in any way. (Ibid. [“Breg did not transact with Engler or her parents in any way”].) Mr. Grundfast’s exposure to UCC’s asbestos was a result of Ball Industry’s purchase of UCC’s products not from any transaction between Mr. Grundfast and UCC. (Ibid. [“Engler obtained her Polar Care device from Oasis, based on a prescription written by Chao, all without Breg's involvement.”] There is no evidence that UCC knew Mr. Grundfast would be exposed to its asbestos. (Ibid. [“The evidence does not show Breg knew—prior to this lawsuit—that Engler was a potential user of the Polar Care device, that she was prescribed the Polar Care device, or that she used the Polar Care device.”].) There is also no evidence that UCC advertised directly to consumers or received direct monetary benefit from Mr. Grundfast’s use of or exposure to its products. (Ibid. [“The evidence also does not show that Breg directly advertised its products to consumers such as Engler or that it derived any monetary benefit directly from Engler's individual rental of the Polar Care device.”].)

            In sum, the evidence in the record does not support a finding, or a reasonable inference, that there was a special relationship between Defendant and Mr. Grundfast sufficient to support Plaintiffs’ fourth cause of action for fraudulent concealment. Therefore, Defendant’s motion for summary adjudication as to Plaintiffs’ fourth cause of action for fraudulent concealment 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 Union Carbide Corporation is ordered to give notice.