Judge: Bruce G. Iwasaki, Case: 24STCV06918, Date: 2025-06-13 Tentative Ruling

Case Number: 24STCV06918    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 March 19, 2024, Plaintiffs James and Julie Ann Byrd (“Plaintiffs”) filed their complaint for personal injury alleging Mr. Byrd developed mesothelioma from occupational exposure to asbestos and asbestos-containing products while working as a manager of a service station from 1976 to 1979, as a contractor working with construction products from 1979 to 1985, and as a carpenter for the Department of Defense from approximately 1985 to 1987. As against Defendant the W.W. Henry Company, L.P. (“WW Henry” or “Defendant”), Plaintiffs allege that Mr. Byrd was exposed to asbestos incorporated into roofing mastics starting between 1972 or 1973 and 1985.

On March 20, 2025, WW Henry filed its motion for summary adjudication arguing that Plaintiffs’ discovery responses are factually devoid of specific facts supporting malice, fraud, or oppression on the part of an officer, director, or managing agent of WW Henry. On May 23, 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 as to punitive damages. On June 2, 2025, WW Henry filed its reply.

The court finds that Plaintiffs’ discovery responses were not factually devoid as to specific facts supporting malice, fraud, or oppression on the part of an officer, director, or managing agent of WW Henry. Therefore, Defendant’s motion for summary adjudication as to Plaintiffs’ claim for punitive damages is denied.

II.             Evidentiary Objections:

Defendant’s Objections:

            Defendant improperly objects to Plaintiffs’ separate statement of material facts rather than the underlying evidence supporting the separate statement. As to the four exhibits Plaintiffs offer in support of their opposition, Defendant appears to generally object to the admissibility of three of the four exhibits:  Exhibit A “excerpts from the deposition of W.W. Henry Company through its designated corporate representative Lori Angelo taken on December 30, 2014 in Anders v. American Biltrite, Inc., et al., Superior Court of California, County of San Francisco, Case No. CGC-14-276287”; Exhibit B “Relevant excerpts from the deposition of W.W. Henry Company through its designated corporate representative Lori Angelo taken on December 21, 2011 in Nielsen v. Borgwarner Morse TEC, Inc., et al., Superior Court of California, County of Los Angeles, Case No. BC459642”; and Exhibit C “Relevant excerpts from the deposition of Paul Beemer taken on December 30, 2014 in Anders v. American Biltrite, Inc., et al., Superior Court of California, County of San Francisco, Case No. CGC-14- 276287.” Defendant further objects to certain specific lines of testimony within these transcripts. The court analyzes these objections in turn.

Sustained:

1. Exhibit A to Plaintiffs’ index of exhibits “Relevant excerpts from the deposition of W.W. Henry Company through its designated corporate representative Lori Angelo taken on December 30, 2014 in Anders v. American Biltrite, Inc., et al., Superior Court of California, County of San Francisco, Case No. CGC-14-276287” 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 do not present any evidence or argument regarding the admissibility of Ms. Angelo’s testimony under the former testimony exception. Therefore, Plaintiffs fail to rebut the general rule of inadmissibility.

Moreover, even if admissible under a hearsay exception, Ms. Angelo lacked any foundation for her testimony as to events that took place before her employment with Defendant. Ms. Angelo was not an expert witness; accordingly she was limited to testifying only to matters within her personal knowledge. (Evid. Code ¶ 702(a) [“Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.”].) Ms. Angelo’s involvement with Defendant began only in 2000. (Angelo depo 24:2-18 [“Okay. So you started in 1982 with Ardex Corporation; is that right? A. Yes. Yes. Q. And did Ardex have any business dealings with W.W. Henry Company at that point that you were involved in? A. No. No. Q. And were you involved at all in the 1987 purchase by Armstrong? A. No. Q. Okay. So -- now, this starts to make a little bit more sense. So when you were talking about purchases and helping the transition, you were talking about in previous depositions, you were part of a team for the 2000 acquisition of Ardex -- of Armstrong by Ardex; right? A. Yes that’s correct.”].) Moreover, Ms. Angelo repeatedly qualified her testimony with her own lack of knowledge as to certain key facts, including her knowledge of the history of corporate knowledge regarding asbestos hazards. (See e.g. Angelo depo at 52:24-53:15 [“Okay. So let's start with something -- you would be the person most qualified to speak about W.W. Henry's knowledge regarding the health hazards of asbestos; correct? MS. McCLAIN: Vague, ambiguous, overbroad. A. I might be the only one to speak to, but I don't think I'd be a good one to speak to. Q. Would you say there's someone at the company currently more qualified than you to speak about the health hazards of asbestos regarding W.W. Henry -- or, W.W. Henry's knowledge of the health hazards of asbestos? A Historical knowledge?  Q. Yes.  A I would say there's probably nobody currently in our company that could speak to that.”].) Accordingly, the evidence presented tends to show that Ms. Angelo lacked foundation as her testimony regarding WW Henry during the exposure period at issue here.. (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, 947 [“The Evidence Code also does not recognize a special category of ‘person previously designated as most knowledgeable’ witness.”]; 951 [“Although [defendant’s corporate representative] does not identify any source at all for most of her information, given that she did not work at [defendant] until 1994, her statements involving activities before that time cannot be based on personal knowledge and must be based on hearsay.”].)

2. Exhibit B to Plaintiffs’ index of exhibits, “Relevant excerpts from the deposition of W.W. Henry Company through its designated corporate representative Lori Angelo taken on December 21, 2011 in Nielsen v. Borgwarner Morse TEC, Inc., et al., Superior Court of California, County of Los Angeles, Case No. BC459642” is inadmissible for the same reasons discussed in no. 1.

Overruled:

3. Exhibit C to Plaintiffs’ index of exhibits, “Relevant excerpts from the deposition of Paul Beemer taken on December 30, 2014 in Anders v. American Biltrite, Inc., et al., Superior Court of California, County of San Francisco, Case No. CGC-14- 276287” is admissible for this motion. Unlike the Angelo transcripts, Plaintiffs offer some argument to support the admissibility of this transcript. For instance, Plainitffs argue: “Mr. Beemer testified at his deposition with a representative from W.W. Henry present, with an opportunity to be cross-examined by Defendant, and given Mr. Beemer was ninety-two years old at the time of his 2014 deposition, to preserve testimony for potential trial in that case and future cases.” (Opposition at p. 13.)

The court finds that Mr. Beemer’s deposition testimony is admissible under Evidence Code section 1291, which states: “(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:… (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” (Evid. Code § 1291.) First, Mr. Beemer was 92 years old in 2014, which would make him 103 as of the day of the hearing. Accordingly, it is a reasonable inference that Mr. Beemer died within the last 10 years and is therefore unavailable as a witness. Second, the court finds Defendant had the same or similar interest in examining Mr. Beemer in the Anders matter as it would in the present motion. The court finds that given the advanced age of Mr. Beemer at the time of his deposition and the obvious difficulty in having a 92 year old witness testify in person at trial, this deposition was more likely than not intended at the outset to serve as a trial preservation deposition. Accordingly, “it may be inferred that all counsel had, at that deposition, a right and opportunity to examine the declarant with an interest and motive similar to that which the party would have at trial in a future case — and hence this key requirement of section 1291(a)(2), would, as general matter, be satisfied.” (Berroteran, supra, 12 Cal.5th at pp. 900-901.)

As to foundation, Mr. Beemer stated he worked for WW Henry for 57 years from approximately 1948 to 2005. (Beemer depo at 17:7-22 [“Q Until approximately some point in 1948? A. I'm having trouble remembering. That must be so. Q. Okay. And then at that point what did you do for work? A. I went to work for The Henry Asphalt Company. Q. That company later became W.W. Henry? A Yes. Q For how long did you work at The Henry Asphalt Company or W.W. Henry? A. Or its successors? Q. Correct. A. I worked from that time until about -- I guess it must have been around 1984. I worked for them for 57 years, whatever that is.”].) This prolonged period of employment tends to indicate that he had personal knowledge of what WW Henry knew throughout the entire exposure period.

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.    Standard 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.)

WW Henry 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. 17 [“The Court can only infer two possible things from Plaintiffs’ unspecific discovery responses to W.W. Henry’s all fact discovery requests. (Andrews, supra 138 Cal.App.4th at 106.) Either Plaintiffs do not have any evidence, or they are withholding it. (Id.) Either way the burden of production shifts. (Id.) Plaintiffs cannot create triable issue of fact by providing a laundry list of documents in addition to the inadmissible testimony already discussed”].)

1.     Defendant’s Burden: Factually Devoid

Defendant fails to satisfy 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. Defendant directs the court’s attention to its special interrogatory no. 9 which asked Plaintiffs to “STATE ALL FACTS SUPPORTING YOUR CLAIM FOR PUNITIVE DAMAGES against DEFENDANT as set forth in YOUR Complaint.” (Defendant’s index of exhibits ex. C at p. 7.) Plaintiffs responses refer back to their response to special interrogatory no. 1 which reads in pertinent part:

“Paul Henry Beemer worked as a chemist for W.W. Henry from 1948 to 1984, starting in 1950 he supervised the laboratory and was in charge of product development. (Deposition of Paul Henry Beemer taken in Anders v. American Biltrite, Inc. et al., SFSC Case No. CGC-14- 276287 taken on December 30, 2014 at 9:19-21, 17:7-22, 22:5-25:21.) W.W. Henry’s corporate representative, Ms. Angelo, agrees that someone like Mr. Beemer who was with the company prior to 1987 and was involved in research and development of the adhesive would have more knowledge regarding the testing conducted and the warnings provided on W.W. Henry’s adhesive and emulsion. (Deposition of Lori Angelo taken December 30, 2014. at 52:24-55:13, 70:6-22, 73:16-74:4, 90:22-91:4, 106:21-107:4.) W.W. Henry did not perform tests relative to safety on any of its products. (Deposition of Paul Henry Beemer taken on December 30, 2014 at 32:12-33:2.) W.W. Henry never tested its adhesives or emulsion to determine whether or not they released asbestos fibers. (Id. at 59:7-18.) Mr. Beemer admits that adhesive was commonly removed years after use and that the process generally involved sanding which typically made a mess. (Id. at 60:4-61:1.) The health hazards of asbestos were a common point of discussion at W.W. Henry. (Id. at 50:2-11.) According to Mr. Beemer, it is not obvious to an end user of W.W. Henry products that asbestos can cause cancer. (Id. at 57:19-25.) In spite of this, while Mr. Beemer was with the company until 1984, no warning label was ever placed on W.W. Henry’s adhesive or emulsion regarding health hazards. (Id. at 48:24-49:8.)” (Defendant’s index of exhibits, Ex. F at 3:18-4:8.)

Defendant also directs the court’s attention to the deposition testimony of Mr. Byrd. Mr. Byrd stated that he had never spoken to anyone that he understood to be an employee of WW Henry. (Defendant’s index of exhibits, ex. N, 235:14-22.) Mr. Byrd further stated he had no information regarding any misrepresentation made by WW Henry, any information that WW Henry withheld, or any information that WW Henry behaved with a reckless or conscious disregard for his safety. (Id. at 236:16-237:14.)

Defendant primarily argues that Plaintiffs’ discovery responses are factually devoid because the deposition testimony cited to in Plaintiffs’ responses to special interrogatory no. 1 is inadmissible hearsay. Defendant argues: “Section 437c requires that dispositive motions require affidavits and declarations be made and affirmatively shown to be on personal knowledge and based on admissible evidence a summary judgment motion cannot be denied based on inadmissible evidence. (Craig Corp. v. County of Los Angeles (1975) 51 Cal. App. 3d 909, 915.) While the testimony of Beemer and Angelo may suggest that evidence may be found, a triable issue of material fact cannot be based on mere speculation and conjecture (Pena v. W. H. Douthitt Steel & Supply Co. (1986) 179 Cal. App. 3d 924, 931. Plaintiff must produce admissible evidence raising a triable issue of fact. (Craig Corp. v. County of Los Angeles (1975) 51 Cal. App. 3d 909, 915.) The witnesses identified by Plaintiffs do not create triable issues of fact because the testimony identified by Plaintiffs is inadmissible.” (Motion at p. 16.)

In opposition, Plaintiffs argue that their discovery responses are not factually devoid because it is improper to analyze whether discovery responses are or are not factually devoid based on the admissibility of the evidence described within those documents. Plaintiffs argue: “Defendant’s insistence on a multi-factor hearsay analysis - including Berroteran – is wrongheaded and delivers bizarre outcomes. Should one scrutinize the Beemer and Angelo depositions under Cal. Ev. C. § 1291, the availability of these two witnesses is a dispositive question. It’s untenable to expect Plaintiffs’ discovery responses to include evidence of unavailability at trial for PMQs that might only be admitted under § 1291. The statutory framework for motions of summary judgment not only specifically permit the use of prior testimony to oppose, but also grant deference to the nonmoving party; thus, defendant’s stringent evidentiary argument works against both the letter and spirit of the law. (See, supra, Gregorian v. Nat’l Convenience Stores, Inc. (1985) 174 Cal.App.3d 944, 946.)” (Opposition at p. 12.) Plaintiffs further argue “the transcripts do, in any case, pass muster with a variety of exceptions to the rule against hearsay. Mr. Beemer testified at his deposition with a representative from W.W. Henry present, with an opportunity to be cross-examined by Defendant, and given Mr. Beemer was ninety-two years old at the time of his 2014 deposition, to preserve testimony for potential trial in that case and future cases. (Paul Beemer Deposition from Anders v. American Biltrite, Inc., San Francisco Superior Court, Case No CGC-14-276287 at 8:15-17; 9:22-23.)” (Id. at p. 13)

In reply, Defendant maintains their objections to the admissibility of the Angelo and Beemer deposition testimony Plaintiffs’ rely upon in their discovery responses, but otherwise does not address its initial moving burden. Defendant states only: “W.W. Henry has shown that it served extensive discovery, including a specific request for all facts regarding Plaintiffs’ claim for punitive damages, and received responses that were factually devoid. Plaintiffs’ assertion that their interrogatory responses are not factually devoid because the responses cite the inadmissible testimony of Lori Angelo and Paul Beemer regarding purported knowledge of the hazards of asbestos and testing of products because the evidence offered is inadmissible hearsay lacking in foundation.” (Reply at p. 2.)

Based on these discovery responses, the court finds that Plaintiffs’ discovery responses were not factually devoid as to specific facts supporting Plaintiffs’ claim for punitive damages. Plaintiffs’ response to special interrogatory no. 9 cites to specific pages and lines of testimony from two of Defendant’s corporate representatives Ms. Angelo and Mr. Beemer to show Defendant’s corporate knowledge of the hazards of asbestos during the period Mr. Byrd used Henry roofing mastic. (Defendant’s Index of Exhibits, Ex. F at pp. 2-4.) Assuming without deciding that Plaintiffs’ discovery responses were required to present admissible evidence to support their interrogatory responses, the court finds that Plaintiffs satisfied their burden to show that Mr. Beemer’s deposition testimony was admissible under Evidence code section 1291.

Moreover, the portions of Plaintiffs’ discovery responses referencing only Mr. Beemer’s testimony are not factually devoid as to evidence of malice, fraud, or oppression on the part of officers, directors, and managing agents of WW Henry. Plaintiffs’ discovery responses are factually rich as to a specifically identified senior manager of WW Henry (Mr. Beemer) who during his time working for WW Henry knew about potential health hazards of asbestos. (Beemer Depo at 50:2-11 [“Q Did you have discussions with anyone else in The W.W. Henry Company regarding the health hazards of asbestos? Overbroad. Vague and ambiguous. Lacks foundation. THE WITNESS: Am I to answer? MS. LUETTO: Yes, please. THE WITNESS: It came to be a common point of discussion because of the interest that was being shown in the matter in the press and such.”] Mr. Beemer further agreed that such hazards were non-obvious to end users. (Beemer depo 57: 19-25 [“"Would you agree with me that it is not obvious to an end user of W.W. Henry product that asbestos can cause cancer? MS. LUETTO: Same objections. THE WITNESS: I would agree with you that it is not obvious to anybody that asbestos can cause cancer.”].) Mr. Beemer testified as to measures taken inside the factory to reduce the exposure to asbestos to factory workers. (Beemer depo 52:23-53:8 [“Q. Okay. Well, let me ask you if you recall why it was decided to install this piece of equipment by the mixing station? A. Common sense. Q When you say ‘common sense,’ what do you mean by that, sir? A. Well, you have an operator opening bags of asbestos and dumping them into a mixer and there's some dust that comes out when he does that. You don't want the person breathing that so you have to position vacuum equipment to take the dust away.”].)

Finally, Mr. Beemer stated that he knew that use of WW Henry products would entail removal of adhesive products which would, at least for flooring adhesives, create a mess. (Beemer Depo at 60:4-16 [“And you knew that W.W. Henry product during a remodel, for example, would have to be removed; correct? MS. LUETTO: Objection. Lacks foundation. Calls for speculation. Overbroad. THE WITNESS: Am I to answer or not? MS. LUETTO: Yes, please. THE WITNESS: Am I aware that the product would have to be removed? BY MR. AMELL: Q Yes, sir, during a remodel. A I'm aware that the product, in some cases, would have to be removed, yes.”].) In sum, these discovery responses present specific facts to support a finding that WW Henry knew of 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, supra, 220 Cal.Ap.4th at p. 1300.) 

Taken together, Plaintiffs discovery responses, and the admissible evidence supporting those discovery responses, do not give rise to the inference that Plaintiffs lack or cannot reasonably obtain evidence to support their claim for punitive damages. Plaintiffs’ reliance on Mr. Beemer’s admissible deposition testimony is sufficient to show that Plaintiffs’ discovery responses are not “boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents” (Weber, supra, 143 Cal.App.4th at p. 1440.) As such, the court finds that Defendant fails to satisfy its initial burden on this motion. Therefore, Defendant’s motion for summary adjudication is denied.

IV.           Conclusion

Defendant’s motion for summary adjudication regarding Plaintiffs’ claim for punitive damages is denied. Defendant W.W. Henry Company, L.P. is ordered to give notice.