Judge: Bruce G. Iwasaki, Case: 24STCV16251, Date: 2025-05-29 Tentative Ruling

Case Number: 24STCV16251    Hearing Date: May 29, 2025    Dept: 14

SUPERIOR COURT OF THE STATE OF CALIFORNIA¿¿¿¿ 

FOR THE COUNTY OF LOS ANGELES¿¿ 

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DEPARTMENT 14¿ 

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I.                Background 

            On June 28, 2024, Plaintiffs Reuven and Natalie Stern (“Plaintiffs”) filed their complaint for personal injury alleging Mr. Stern developed mesothelioma from occupational exposure to asbestos and asbestos-containing products during his work as a freelance painter and as an electrical contractor between approximately the 1970s to 1990s, as well as through his personal use of asbestos-containing talcum powder, including Johnson’s Baby Powder, from approximately 1973-1978. As against Defendant, the Sherwin-Williams Company (“Sherwin-Williams” or “Defendant”) Plaintiffs allege that Mr. Stern was exposed to asbestos or asbestos contaminated talc in paint he purchased from Defendant between 1973 and 1975 or 1976.

On January 13, 2025, Sherwin-Willaims filed its motion for summary judgment arguing that Plaintiffs’ discovery responses are factually devoid as to threshold exposure and that it presents affirmative evidence that even if Mr. Stern was exposed to asbestos containing paint manufactured by Defendant, it could not have been a substantial factor in causing his mesothelioma. In the alternative, Defendant moves for summary adjudication as to Plaintiffs’ claim for punitive damages based on allegedly factually devoid discovery responses. On March 28, 2025, Plaintiffs filed their opposition. On April 4, 2025, Defendant filed its reply. On April 10, 2025, the court held a hearing.

On April 17, 2025, the court issued an order denying Sherwin-Williams’s motion for summary judgment and motion for summary adjudication. The court found that Defendant failed to satisfy its initial burden based on factually devoid discovery responses or affirmative evidence. With regards to Plaintiffs’ discovery responses, the court observed: “at this stage, the inquiry focuses on whether Plaintiffs’ discovery responses are sufficiently devoid of specific facts to support an inference that Plaintiffs lack and cannot reasonably obtain needed evidence. This testimony [deposition testimony of Elizabeth Anne Gilbert taken in the Nabors, Casci, and McBroom matters], regardless of its admissibility or ability to create a triable issue of material fact, shows that Plaintiffs’ discovery responses are not devoid of facts to support their causes of action.” (April 17, 2025 minute order at p. 8.)

On April 22, 2025, Defendant provided notice of the Court’s ruling.  On May 5, 2025, Defendant filed this motion for reconsideration arguing that the court made an error of law with regards to its analysis that Plaintiffs’ discovery responses were not factually devoid. Specifically, Defendant relies upon Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, Guthrey v. State of California (1998) 63 Cal.App.4th 1108, and other authority and trial court rulings for the proposition that “Discovery responses citing inadmissible hearsay are necessarily devoid of material facts.” (Motion at p. 1.)

On May 15, 2025, Plaintiffs filed opposition. Plaintiffs principally argue that Defendant’s motion for reconsideration does not satisfy the requirements of Code of Civil Procedure section 1008. Plaintiffs additionally argue that the Rio Linda case is distinguishable authority for concluding that Plaintiffs’ discovery responses are factually devoid. Finally, Plaintiffs argue that even if their discovery responses were factually devoid, Plaintiffs created a triable issue of material fact through affirmative evidence from Mr. Stern and expert Jerome Spear.

On May 21, 2025, Sherwin-Williams filed its reply. On May 29, 2025, the court held a hearing.

The court finds that Sherwin-Williams failed to satisfy its burden to show it is entitled to reconsideration under Code of Civil Procedure section 1008.

II.             Discussion

A.    Legal Standards

“A motion for reconsideration may only be brought if the party moving for reconsideration can offer 'new or different facts, circumstances, or law' which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion.... A motion for reconsideration will be denied absent a strong showing of diligence.” (Forrest v. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202, disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal.App.4th 1192, 1199 [noting that 1992 amendment to Code Civ. Proc., § 1008 tightened diligence requirements].

A court has inherent power to reconsider, on its own motion, outside of the limitations of Code of Civil Procedure section 1008, “[b]ut a party may not file a written motion to reconsider that has procedural significance if it does not satisfy the requirements of section 437c, subdivision (f)(2), or 1008.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.) Judges' reconsideration, on their own motions, must be based on the evidence originally submitted in support of the ruling, and not upon evidence that should have been presented in connection with the original motion. (In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1314.)

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B.    Procedural Arguments

Defendant does not establish the elements required for a statutory motion for reconsideration under Code of Civil Procedure section 1008. Specifically, Sherwin-Williams does not set forth facts sufficient to show that either the Rio Linda or Guthrey cases cited in the motion for reconsideration constitute “new or different…law.” The Rio Linda case was decided in 1997 and the Guthrey case was decided in 1998; this law is not new. Although neither party cited either case in briefing the motion for summary judgment or, in the alternative, summary adjudication, the issue of whether Plaintiffs’ discovery responses were factually devoid was clearly at issue. (See Defendant’s memorandum of points and authorities at pp. 14-17 [erroneously each marked as p. 2], Plaintiffs’ opposition at pp. 12-14.)

Even if the law is “new or different” within the meaning of Code of Civil Procedure section 1008, Sherwin-Williams fails to present evidence that “the moving party could not, with reasonable diligence, have discovered or produced it” (New York Times, supra, 135 Cal.App.4th at p. 213.) At best, Defendant’s explanation for its failure to diligently produce this law is: “Plaintiffs fault Sherwin-Williams for not arguing in its summary judgment papers that hearsay evidence cannot defeat a moving defendant’s initial burden on summary judgment. But before the Court’s sua sponte comments at the summary judgment hearing, no one suggested otherwise. Plaintiffs do not dispute that the point of law raised in the motion was not at issue until the Court brought it up on its own accord in its summary judgment analysis. Indeed, Plaintiffs never argued (and still do not argue) that inadmissible hearsay can create a triable issue of fact. The point is thus undisputed.” (Motion for reconsideration reply at p. 3.)

However, Plaintiffs’ opposition to the motion for summary judgment expressly argued that their discovery responses were not factually devoid because “Plaintiffs responses cite specific depositions in which: (i) Sherwin-Williams admits that talc was a component in most of its paints; (ii) Sherwin-Williams admits its only known talc supplier was Vanderbilt; and (iii) Vanderbilt admits that tremolite asbestos was in all of its talc. (Id. at 6:15-8:20.)” (Motion for summary judgment opposition at pp. 13-14.) Based on this opposition, Defendant argued in reply: “Plaintiffs’ Opposition asserts that Mr. Stern’s above testimony, combined with Ms. Gilbert’s testimony in previous cases, is sufficient to identify ‘the specific product(s) alleged to contain asbestos.’ However, as explained below, Ms. Gilbert’s testimony is inadmissible hearsay…. Her out-of-context, speculative statements in other cases cannot be relied upon and this Court should exclude them again here, just as it has done consistently before…. Plaintiffs do not, and cannot, present any other evidence to meet their threshold burden to prove specific facts that Mr. Stern ever actually encountered a Sherwin-Williams paint that contained talc, let alone asbestos-contaminated talc. This lack of evidence, in and of itself, compels judgement as a matter of law for Sherwin-Williams, just as it did in Mottahedeh.”

A reasonably diligent defendant would have adduced law to support its argument that Plaintiffs’ discovery responses relying on potentially inadmissible deposition testimony were factually devoid as to specific facts supporting their causes of action.  Instead, Defendant ignored its own initial burden on reply and merely argued that such testimony would be insufficient to satisfy Plaintiffs’ burden to establish a triable issue of material fact. Therefore, Defendant also fails to show reasonable diligence. (Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1199 [“If counsel need not explain the failure to earlier produce pertinent legal authority that was available, the ability of a party to obtain reconsideration would expand in inverse relationship to the competence of counsel. Without a diligence requirement the number of times a court could be required to reconsider its prior orders would be limited only by the ability of counsel to belatedly conjure a legal theory different from those previously rejected, which is not much of a limitation.”].)

Sherwin-Williams’s essential argument is that the court erred by failing to sustain objections which, had they been sustained, would have compelled a different result for Defendant’s motion for summary judgment. Evidentiary error is not a ground for a motion under section 1008, absent a change in law. “[I]f the trial court fails to rule expressly on specific evidentiary objections, it is presumed that the objections have been overruled, the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.)

Defendant fails to show that its motion is supported by “new or different…law” that it could not with “reasonable diligence” have discovered and produced at the time of the previous hearing. Sherwin-Willaims also has recourse to challenge the court’s evidentiary rulings on appeal when and if a final appealable order is issued. Nevertheless, even assuming Sherwin-William’s motion satisfied these procedural elements, the court find that the additional law Sherwin-Williams relies upon does not compel a different result.

C.    Application of Rio Linda Unified School Dist. v. Superior Court to Sherwin-Williams’s motion for summary judgment.

The court finds that Rio Linda, the case Sherwin-Williams primarily relies upon as new or different law, does not alter the court’s rationale in concluding that Plaintiffs’ discovery responses were not factually devoid. The pertinent portion of the Rio Linda case states: “disregarding the inadmissible hearsay to which the School objected, there is no evidence real party fell from a slide on the School's playground. Real party, as we have noted, did not dispute the School's legal argument that this defect would be fatal to his case. [Citation.]) We therefore shall direct the trial court to grant the School's motion.” (Rio Linda, supra, 52 Cal.App.4th at p. 741.) This language has been interpreted in certain secondary sources to stand for the proposition that: “Defendant may be able to ‘show’ the absence of evidence on a crucial element of plaintiff's case by:… (4) Legally inadmissible discovery responses: A lack of evidence exists where the opposing party's discovery responses consist of inadmissible hearsay and the moving party timely objects to them.” (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2024) §§10:245, 10:245.27.) Defendant also relies upon Guthrey v. State of California for the proposition “inadmissible evidence such as hearsay ‘must be disregarded’ entirely in the summary judgment analysis.” (Motion for reconsideration at p. 5) The pertinent portion of this case states: “A motion for summary judgment must be decided on admissible evidence in the form of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice may be taken. (Hayman v. Block (1986) 176 Cal.App.3d 629, 638, 222 Cal.Rptr. 293.)” (Guthrey, supra, 63 Cal.App.4th at pp. 1119-1120.)

Defendant argues that the above language from Rio Linda compelled the court to determine the admissibility of Ms. Gilbert’s deposition testimony in the Nabors, Casci, and McBroom cases and, if it found the testimony to be inadmissible, to find Plaintiffs’ discovery responses were factually devoid. (See motion for reconsideration memo at p. 6 [it is not possible under California law for the Court to avoid deciding the admissibility of Gilbert’s past statements as a threshold matter. Plaintiffs have made no attempt to meet their burden to prove that Gilbert’s statements are admissible, see Berroteran, 12 Cal. 5th at 898, and Sherwin-Williams has repeatedly objected to those statements as inadmissible on several independent grounds. See SW’s Evid. Objs. at 2-11. If those objections are correct (and they are), neither Plaintiffs nor the Court can rely on Gilbert’s past statements as supporting evidence of anything for summary judgment purposes.”].)

In opposition, Plaintiffs argue that Rio Linda is distinguishable from this case. Plaintiffs characterize the rule from Rio Linda as follows: “The rule is that where a plaintiff’s interrogatory responses cite to clearly inadmissible evidence and suggest that there is no way for the plaintiff to introduce that evidence at trial in an admissible form, then those interrogatory responses are devoid and shift the summary judgment burden to the plaintiff” (Motion for reconsideration opposition at p. 5.) Plaintiffs further argue that the deposition testimony Plaintiffs cited in their discovery responses are neither “clearly inadmissible,” nor gives rise to the inference that Plaintiffs “could not obtain the same PMQ testimony in an admissible form.” (Id. at p. 6.)

In reply, Defendant argues: “it is undisputed that under Rio Linda, a nonmovant’s discovery responses are factually devoid if they cite only inadmissible evidence such as hearsay.” (Motion for reconsideration reply at p. 4.) Defendant further argues: “Plaintiffs bear the burden to prove the admissibility of all of their evidence, and they never even attempted to do so here, and did not even attach this transcript in support of their opposition. So they cannot claim it has any relevance now.” (Id. at p. 5.) Finally Defendant argues: “Plaintiffs present no basis to assert they can obtain admissible versions of the inadmissible Gilbert and Vanderbilt transcripts. But that is not a basis for denying this reconsideration motion. The Court would still have to grant this Motion because summary judgment was denied on a legally impermissible ground. It could then decide whether to reject Mr. Stern’s sham declaration (the admissibility of which the Court did not actually decide, contrary to Plaintiffs’ suggestion otherwise) and whether to grant a continuance, and then re-address Sherwin-Williams’ Motion for Summary Judgment after further discovery, if any.” (Id. at p. 6.)

California summary judgment law places the burden of production on a moving defendant to show evidence “that a cause of action has no merit” for instance by showing “that one or more elements of the cause of action, even if not separately pleaded, cannot be established.” (Cal. Civ. Proc. 437c(p)(2).) 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 [citing Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107.)

The question here is whether Rio Linda compelled the court to sustain Defendant’s evidentiary objections, and by doing so, conclude that Plaintiffs’ discovery responses were factually devoid. The court finds that to the extent Rio Linda announced a rule that discovery responses may be factually devoid when they rely exclusively on inadmissible evidence, the facts of Rio Linda are too far afield from the facts of this case to support the application of that rule here.

Defendant argues that Rio Linda affirms that where a defendant moves for summary judgment or adjudication based on factually devoid discovery responses, the court must always rule on objections to evidence identified in the plaintiff’s discovery responses, and if the court finds that evidence to be inadmissible, the court must find that plaintiff’s discovery responses are factually devoid. However, the court finds that the language of the Rio Linda court does not bear the interpretation Sherwin-Williams argues it does. To begin, nowhere in the plain language of Rio Linda did the Court of Appeal ever set out the rule or proposition Sherwin-Williams cites it for. At most, one can infer from the disposition of the case, reversing a denial of summary judgment, that the court found based on the record before it, that the moving defendant had presented sufficient evidence to satisfy its initial burden and that plaintiffs failed to present sufficient evidence to create a triable issue of material fact. (See Rio Linda, supra, 52 Cal.App.4th at 739 [“In its order denying the motion, the trial court stated,… ‘There is evidence from which the inference can be drawn that [Real Party] was injured on the subject slide, which evidence is referred to in moving party's own submission of the testimony of the mother as to the son's response when asked where he was injured. The father's [conflicting] testimony in that respect simply created a factual issue…’ ”], 741 [“Thus disregarding the inadmissible hearsay to which the School objected, there is no evidence real party fell from a slide on the School's playground. Real party, as we have noted, did not dispute the School's legal argument that this defect would be fatal to his case. [Citation.] We therefore shall direct the trial court to grant the School's motion.”].)

The record in the Rio Linda case discloses the following key facts: (1) “Born in 1986, real party is developmentally disabled and has very minimal vocal skills either in English or Spanish.” (Rio Linda, supra, 52 Cal.App.4th at 736.) (2) “The litigants stipulated real party was not competent to testify as a witness.” (Ibid at fn. 4.) (3) “Real party's parents testified that at some unspecified point during vacation while their son was still in his cast and required a wheelchair, they took him to the playground to see if they could determine how he had been injured. They wheeled him around from location to location, asking if he had fallen. According to Maria Diaz, her son pointed at the taller slide and said the Spanish word for “there.” The father's testimony was less clear, at first indicating his son pointed at the taller slide, but then selecting the photograph of the smaller slides as the location identified by his son.” (Id. at p. 737.) (4) “In their interrogatory responses, the Diazes admitted they were not presently aware of any witnesses to the accident. They did not list any videotapes among the materials in their possession relevant to the accident.” (Id. at 738.) Based on the foregoing, the court appeared to affirm the moving defendant’s arguments that “this evidence cannot be used to prove how the accident occurred because it is inadmissible hearsay, and since real party had no other evidence (nor could obtain any) he could not establish his case” (Id. at p. 740.)

Based on this record, the plaintiffs in Rio Linda had effectively stipulated that there was exactly one source of information for the facts identified in in their discovery responses, namely Ms. Maria Diaz’s deposition testimony recounting what her developmentally disabled child had told her. Her child would not be able to provide any testimony because it was stipulated he was incompetent to do so. The Rio Linda plaintiffs’ key argument was that moving defendant had admitted evidence regarding the fall by including this conversation in its statement of undisputed facts. (Id. at p. 739 [“Real party does not dispute the propriety of the legal analysis by the School. Instead, he disputes the School's factual predicate. He asserts, ‘In [the School]'s own Statement of Undisputed Facts, they [sic ] specifically admit evidence showing where the Real Party in Interest fell from the slide. That is, the testimony of MARIA DIAZ that when asked where he injured himself, their son pointed to a playground slide and uttered “[there]”.’ ”].) Plaintiffs effectively accepted that if Ms. Diaz’s deposition testimony was inadmissible and Defendant had not admitted to the facts within that deposition, plaintiffs would have no other way to present admissible evidence to create a triable issue of material fact that “real party fell from a slide on the School's playground.” (Id. at p. 741.) Without any way to present this testimony though admissible evidence, there was no question that the Rio Linda plaintiffs “[did] not possess, and [could not] reasonably obtain, needed evidence” to support their cause of action. (Aguilar, supra, 25 Cal.4th at p. 854.)

In contrast, the record here does not support the inference that Plaintiffs would have no other way to reasonably obtain needed evidence if the deposition testimony cited in Plaintiffs’ interrogatory responses was inadmissible. First, the specific evidence Defendant argues is inadmissible and therefore renders Plaintiffs’ discovery responses to be factually devoid is prior deposition testimony from Defendant’s previous person most qualified Elizabeth Agnes Gilbert in the McBroom case and Paul Vanderbilt, a co-defendant’s person most qualified, in the Gandy case. This deposition testimony was relied upon by Plaintiffs in their discovery responses to connect co-defendant Vanderbilt Minerals LLC’s talc to Sherwin-Williams’s products and establish the tremolite content of Vanderbilt’s talc respectively. There is no evidence in the record that Plaintiffs here stipulated or admitted that without these depositions they would be unable to present evidence to support their causes of action against Sherwin-Williams. There is no evidence in the record that either Ms. Gilbert or Mr. Vanderbilt would be unable provide admissible evidence in this matter if called to testify at trial. And even if these particular corporate representatives could not have provided admissible evidence in this case, there is no reason to suspect that Sherwin-Williams or Vanderbilt could not have been required to produce a corporate representative to discuss the same topics addressed in the prior depositions at trial.

Moreover, when the court denied Sherwin-William’s motion for summary judgment, the court was aware that there was a discovery dispute preventing Plaintiffs from submitting a complete evidentiary record in opposition to Defendant’s motion. In fact, by the time the court denied Defendant’s motion on April 17, the court had already granted Plaintiffs’ motion to compel Defendant’s responses to certain outstanding discovery regarding the alleged asbestos and talc content of Sherwin-Williams paint. (See April 10, 2025 minute order at pp. 20-21 [“The court finds that there is good cause to order Defendant’s compliance with Plaintiffs’ request for production of documents and interrogatory as limited by this order. Plaintiffs special interrogatory no. 9 asks: “Identify by brand name, trade name, type, or any other identifying information all the paint you manufactured or sold during the 1970s that contained Vanderbilt talc.” As to the interrogatory, Defendant shall provide a code-compliant verified response without objection to the interrogatory for the period 1972 to 1978 involving its architectural paints sold in Los Angeles. Plaintiffs’ request for production no. 53 seeks: “Produce all documents related to the ingredients used in the paint you manufactured or sold during the 1970s (ie formula cards, etc.)” As to the document request, Defendant shall produce the formula cards for architectural paints sold in Southern California during 1972 to 1978 that contained asbestos or talc with the following information unredacted: the portions of these formula cards showing trade names, product numbers, ingredient and/or supplier numbers for the talc or asbestos, the percentage of asbestos or talc within those products, appropriate use cases, and any other ingredients Defendant argues would prevent talc or asbestos within the paint from becoming friable and breathable. Defendant shall also provide a code-compliant verified response to request no. 53. All other information can be redacted from the formula cards.”].) As such, the court finds that the incomplete discovery, partially triggered by Defendant’s failure to respond to valid interrogatories and requests for production propounded against it, likewise does not give rise to the inference that Plaintiffs could not reasonably obtain needed evidence.

The record in this case does not support Defendant’s contention that application of the rationale or rule from the Rio Linda case would compel the court to alter its April 17, 2025 ruling on Sherwin-William’s motion for summary judgement. The record does not provide direct or circumstantial evidence that the deposition testimony identified in Plaintiffs’ discovery responses is the only reasonable source for facts connecting Defendant to allegedly asbestos-containing paint products at issue in this case. As stated, the court finds that the existence of current corporate representatives and the outstanding discovery dispute which may produce documentary evidence supports the reasonable inference that there are many possible sources of information regarding the alleged asbestos content of Sherwin-Williams products. Defendant failed to present sufficient evidence that showed that Plaintiffs lacked and could not reasonably obtain needed evidence through alternative sources. Therefore, unlike the plaintiffs in Rio Linda, a finding that the particular deposition transcripts relied upon in Plaintiffs’ discovery responses would not give rise to the inference that Plaintiffs’ discovery responses were factually devoid. Accordingly, even considering the law Sherwin-Williams directs the court to in its motion for reconsideration, the court would not alter its rationale as to Defendant’s motion for summary judgment.

III.           Conclusion

Sherwin-Williams fails to satisfy its burden to show that it meets the statutory requirements for reconsideration under Code of Civil Procedure 1008. Specifically, Defendant fails show to that the decades old law it now presents constitutes “'new or different…law” within the meaning of Code of Civil Procedure section 1008 or that it presented evidence of its reasonable diligence. Even considering the law Sherwin-Williams presents, Defendant fails to show that this would alter the court’s ruling that Defendant failed to satisfy its initial burden by showing Plaintiffs’ discovery responses were factually devoid. Accordingly, Sherwin-Williams’s motion for reconsideration is denied.

Plaintiffs are ordered to give notice.