Judge: Bruce G. Iwasaki, Case: 24STCV22464, Date: 2025-06-02 Tentative Ruling

Case Number: 24STCV22464    Hearing Date: June 2, 2025    Dept: 14

SUPERIOR COURT OF THE STATE OF CALIFORNIA¿¿  

FOR THE COUNTY OF LOS ANGELES  

DEPARTMENT 14¿ 

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[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

On September 3, 2024, Plaintiffs Kenneth and Anne Armstrong filed their action for personal injury based on Mr. Armstrong developing mesothelioma from occupational exposure to asbestos while working with automobiles from the mid to late 1960s to 2006m as well as from his own personal automotive repair work in that period. As against Defendant Hennessy Industries LLC (“Hennessy” or “Defendant”), Plaintiffs allege that Mr. Armstrong was exposed to asbestos through his use of Defendant’s AMMCO brake shoe arcing machines on asbestos containing friction brake products during his work for the Los Angeles County Mechanical Department from approximately 1969 to 1971.

On April 28, 2025, Hennessy filed its motion for summary adjudication arguing that Plaintiffs’ discovery responses are factually devoid as specific facts supporting Plaintiffs’ third cause of action for negligent misrepresentation, fourth cause of action for fraud by nondisclosure, and Plaintiffs’ claim for punitive damages. However, Defendant failed to attach to their index of exhibits any of the case specific written discovery it propounded against Plaintiffs. Instead, Defendant attaches special interrogatories and requests for production it propounded against Mr. Alfredo Waltower and Mr, Waltower’s responses. (See Defendant’s Index of Exhibits, Exs. B-E.) Defendant also attaches some of Mr. Waltower’s deposition testimony. (Id. at Ex. F.) The only case specific discovery referencing the Armstrongs presented on this motion are excerpts of Mr. Armstrong’s deposition in which he described his exposure to the AMMCO machine and to any employees of that company. (Id. at Ex. G.)

Plaintiffs argued in their opposition filed on May 13: “The evidentiary showing made by Hennessy here is therefore insufficient to shift the burden of production to Plaintiffs. Hennessy failed to demonstrate that it propounded comprehensive written discovery in this case designed to elicit facts, witnesses and documents supporting Plaintiffs’ claims against it. Instead, Hennessy submitted the written discovery it propounded on a different plaintiff in a separate unrelated matter and that plaintiff’s responses (see, Defendant’s Exhibits B-E), leaving this Court without any evidence from which to draw any inference about the ability of Plaintiffs in this case to prove their claims at trial. This Court can infer nothing at all about the ability of Plaintiffs here to prove their case at trial from the discovery responses served by a different unrelated plaintiff in a different, unrelated case.” (Opposition at pp. 6-7.)

Over a week later, Defendant filed its reply in which it did not address the fact that it attached the wrong plaintiffs’ discovery responses to its initial motion. (Reply at pp. 2-3.)

The court finds that Defendant failed to satisfy its initial burden of production on this motion. As Plaintiffs observed, the law is clear that with regards to factually devoid discovery responses “we can infer nothing at all with respect to questions which were neither asked nor answered.” (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 81.) Defendant’s failure to demonstrate that it propounded comprehensive discovery against Plaintiffs does not permit the court sufficient evidence to determine whether “the plaintiff does not possess needed evidence” or whether the “plaintiff cannot reasonably obtain needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. 854.)

Defendant also fails to submit sufficient affirmative evidence to carry its initial burden. Defendant presented the declaration of Kevin Belack which states in pertinent part: “Based on my review of Hennessy's historical corporate documents, including but not limited to engineering drawings, catalogs, marketing materials, various other documents, corporate records, minutes, and documents regarding any and all acts of officers, directors, and employees regarding asbestos, AMMCO did not intentionally conceal or misrepresent any material facts with the intent to harm any user of an AMMCO arcing machine.” (Belack Decl. ¶ 8.) However, as Plaintiffs correctly observe, Mr. Belack provides no basis for his personal knowledge as to these facts. There is no indication that Mr. Belack was employed by Defendant between 1969 and 1971 and therefore no basis to find that he has personal knowledge of these facts during that time period. Moreover, he is not qualified as an expert and therefore not entitled to rely on hearsay, including the unidentified “historical corporate documents” which were not placed into the record. Accordingly, the court sustains Plaintiffs objections to Mr. Belack’s declaration.

In sum, the court finds that Defendant fails to satisfy its prima facie burden to show Plaintiffs’ discovery responses factually devoid as to specific facts supporting Plaintiffs’ causes of action of action for fraud or claim for punitive damages. Therefore, Defendant Hennessey’s motion for summary adjudication is denied.