Judge: Gary Y. Tanaka, Case: BC708163, Date: 2022-12-20 Tentative Ruling

Case Number: BC708163    Hearing Date: December 20, 2022    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                 Tuesday, December 20, 2022

Department B                                                                                                                             Calendar No. 9

PROCEEDINGS

Dan O’Leary, et al. v. The Dow Chemical Company, et al. 

BC708163

1.      The Dow Chemical Company’s Motion for Summary Adjudication, or, Alternatively, Summary Adjudication

TENTATIVE RULING

            The Dow Chemical Company’s Motion for Summary Adjudication, or, Alternatively, Summary Adjudication is denied.

Background

Plaintiffs filed their Complaint on May 31, 2018. Plaintiffs’ First Amended Complaint was filed on October 15, 2018.  Plaintiffs allege the following facts.  From 1982 to 2000, Plaintiff Dan O’ Leary worked for The Boeing Company (“Boeing”) as an electrical journeyman at Boeing. (First Am. Compl. (“FAC”) ¶ 20.) Plaintiffs allege that, during this time, Dan O’Leary used or was exposed to certain solvents containing trichloroethylene (“TCE”), perchloroethylene, and other toxic chemicals that were manufactured by Defendants.  (FAC ¶ 21.)  Dan O’Leary sued the manufacturers and suppliers of the chemicals to which he was exposed, alleging causes of action for negligence, strict product liability, concealment, and breach of implied warranty. Dan O’Leary's wife Darla O’Leary alleges a claim for Loss of Consortium, and both Plaintiffs seek punitive damages.

Objections

            Plaintiff’s Objections, dated Oct. 19, 2022:

            Objections 1 and 2 are sustained.  Objections 3 to 6 are overruled.

            Defendant’s Objections, dated Oct. 28, 2022:

            Objections to Additional Material Facts: Objections 1 to 4 are overruled. Additional Material Facts are not evidence.

            Objections to the declaration of Jesse Fuentes: Objections 1 to 3 are overruled.

            Plaintiff’s Objection dated Dec. 6, 2022:

            Plaintiff’s objection to evidence submitted with the Reply is overruled.

Motion for Summary Judgment/Adjudication

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  CCP § 437c(p)(2).  “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2).  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.)

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c(p)(1).)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, 159 Cal.App.4th at 467; CCP § 437c(c).)

Defendant moves for summary judgment, or, in the alternative, summary adjudication in its favor and against Plaintiffs Dan O’Leary and Darla O’Leary (“Plaintiffs”). The motion is made on the grounds that Plaintiffs’ Complaint, and each of its causes of action are without merit and present no triable issues of material fact.

Alternatively, Dow requests summary adjudication of issues in its favor and against Plaintiffs pursuant to Code of Civil Procedure § 437c, as follows:

“Issue No. 1: Plaintiffs Daniel and Darla O’Leary’s Second Cause of Action for Strict Liability – Failure to Warn is without merit because Mr. O’Leary testified that he never read warnings contained in the Material Safety Data Sheet.

Issue No. 2: Plaintiffs Daniel and Darla O’Leary’s Fourth Cause of Action for Fraudulent Concealment is without merit because Plaintiffs cannot show evidence that Dow owed Mr. O’Leary a legal duty.

Issue No. 3: Plaintiffs Daniel and Darla O’Leary’s prayer for punitive damages is without merit because Plaintiffs have no evidence of malice, oppression, or fraud committed by Dow against Plaintiffs.”  (Notice of Motion, page 2, lines 13-21.)

The standard for determining causation in a toxic tort action is set forth in Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71. “[T]he plaintiff must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.[ . . .] In cases like the one before us, presenting complicated and possibly esoteric medical causation issues, the standard of proof ordinarily required is a reasonable medical probability based upon competent expert testimony that the defendant's conduct contributed to [the] plaintiff's injury. [¶] The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical. Thus, a force which plays only an 'infinitesimal' or 'theoretical' part in bringing about injury, damage, or loss is not a substantial factor, but a very minor force that does cause harm is a substantial factor.”  (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 (internal citations and quotations omitted).)  However, exposure to the product itself is essential, and, if there is no exposure, there can be no causation. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 982; Powell v. Standard Brands Paint Company (1985) 166 Cal.App.3d 357, 366.)

Defendant Dow has met its initial burden to show that an essential element of Plaintiffs’ causes of action cannot be established.  Defendant presents evidence that Plaintiff Daniel O’Leary’s deposition and discovery responses do not show that Plaintiff worked with or around a Dow product. (Defendant’s Separate Statement of Facts and Supporting Evidence, 19-21.) Defendant provides evidence showing that Plaintiffs’ evidence regarding causation is speculative without the ability to pinpoint his damages to a Dow product.  (Id.) Defendant submitted evidence that it did not sell or ship Neu-Tri (the product allegedly manufactured by Dow) to Boeing’s or McDonnell-Douglas Corporation’s Torrance, Long Beach, Huntington Beach or Seal Beach, California locations from 1979 through 1998, including the claimed dates of exposure.  (Id. at 21.) Additionally, Dow submitted evidence that it did not manufacture Neu-Tri in aerosol cans.  (Id. at 20.)

However, Plaintiffs have met their burden to provide specific facts to show the existence of a triable issue of material fact as to their causes of action.  (CCP § 437c(p)(2).)  Plaintiff presented evidence to support an inference that during his employment with Boeing he personally used or was exposed to various Dow products. (Plaintiff’s Additional Material Facts and Supporting Evidence, 1-4.)

Plaintiffs have submitted evidence in the form of a declaration from Plaintiff O’Leary’s former co-worker, Jesse Fuentes.  Fuentes states that 55-gallon drums of TCE with the Dow logo were stored at the Boeing facility, and that he and Plaintiff O’Leary used that product regularly. Plaintiffs served a subpoena upon Boeing to produce records concerning chemical products that were used at Boeing’s facility when Plaintiff O’Leary worked there.  Boeing produced a Material Safety Data Sheet for Dow’s Neu-Tri solvent.  (Id.)

Defendant argues that Plaintiff’s evidence is speculative and that the Court must believe Defendant’s declarant, Ann E. Wright, when she states: “Based on my review, there are no records evidencing that Dow sold or shipped Neu-Tri™ to Boeing Corporation or its predecessor company, McDonnell Douglas Corporation, at its Torrance, Long Beach, Huntington Beach or Seal Beach, California locations from 1979 through 1998, including the claimed dates of exposure by Mr. O’Leary.”  (Decl., Wright, ¶ 8.)  First, the Court notes that this evidence merely indicates that Ms. Wright did not uncover records of shipments, and, not necessarily, that no shipments ever occurred.  In any event, Plaintiff submitted first-hand evidence that provides an inference that Plaintiff was exposed to Dow’s product.  With the Reply, Defendant also argues that the existence of a Material Safety Data Sheet does not necessarily mean that the product was shipped to McDonnell Douglas.  Of course, this statement does not show that the production of the Material Safety Data Sheet by Boeing is insignificant, and that it may provide an inference that, in fact, the product was shipped.  The Court cannot consider the weight of the evidence when ruling on a motion for summary judgment.

Thus, there is a triable issue of fact as to whether Mr. O’Leary was exposed to Dow’s products during his employment with Boeing.  Therefore, Plaintiffs have shown the existence of a triable issue of material fact as to the essential causation element of Plaintiffs’ causes of action.

Issue 1

Defendant’s motion for summary adjudication is denied.  Defendant failed to meet its initial burden to show that an essential element or elements of Plaintiffs’ second cause of action cannot be established or that there is a compete defense to the second cause of action.  Therefore, the burden did not shift to Plaintiffs to provide specific facts to show the existence of a triable issue of material fact as to their causes of action.  (CCP § 437c(p)(2).)

Defendant’s motion is based on the ground that Plaintiffs cannot establish that Defendant’s products caused Plaintiff Daniel O’Leary’s damages because, in his discovery responses, including deposition testimony, he stated that he never read or relied on any of the labels or material safety data sheets for any of Defendant’s products. Thus, according to Defendant, any alleged deficiencies in the labels and material safety data sheets of its products could not have caused his injuries.  Defendant relies on Plaintiff’s discovery responses.  Factually devoid discovery responses and deposition testimony can be used as evidence that Plaintiff does not possess the necessary evidence to prove his causes of action.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)

The standard for determining causation in a toxic tort action is set forth in Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71. “[T]he plaintiff must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.[ . . .] In cases like the one before us, presenting complicated and possibly esoteric medical causation issues, the standard of proof ordinarily required is a reasonable medical probability based upon competent expert testimony that the defendant's conduct contributed to [the] plaintiff's injury. [¶] The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical. Thus, a force which plays only an 'infinitesimal' or 'theoretical' part in bringing about injury, damage, or loss is not a substantial factor, but a very minor force that does cause harm is a substantial factor.”  (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 (internal citations and quotations omitted).)

“[S]trict liability can be based on the absence of a warning which creates an unreasonable risk to the consumer. Drawing on the Restatement Second of Torts section 402A, comment j, Canifax held that ‘a product, although faultlessly made, may nevertheless be deemed ‘defective’ under the rule and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given.  (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995–96.)

“[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.  (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)

Defendant argues that Plaintiff’s cause of action fails because Plaintiff admitted in discovery responses that he did not read or rely upon warnings or safety data sheets.  (Ramirez v. Plough, Inc. (1999) 6 Cal.4th 539, 556.)  However, Defendants failed to submit competent evidence that, in fact, warnings, instructions, and/or material data sheets were made available to Plaintiff.  “Whether the absence of a warning makes a product defective depends on several factors, among them the normal expectations of the consumer as to how a product will perform, degrees of simplicity or complication in its operation or use, the nature and magnitude of the danger to which the user is exposed, the likelihood of injury, and the feasibility and beneficial effect of including a warning.  Occasionally the evidence is such that the adequacy of a warning may be decided by the court as a matter of law.  In most cases, however, the adequacy of a warning is a question of fact for the jury.” (Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1320 (internal citations omitted).)

Here, Defendants presented no evidence of the existence of the warnings and data sheets with respect to its product and that they were made available to Plaintiff.  Defendant failed to produce evidence regarding the content and placement of its warnings.  Defendant failed to produce evidence as to whether it provided safety data sheets to Plaintiff or Plaintiff’s employer. Without meeting this threshold issue of the actual existence and availability of these materials, Plaintiff’s discovery responses stating that he did not recall reading the warnings or data sheets does not, on its own, establish that an essential element of the cause of action cannot be established. The Court cannot simply presume that these warnings and materials were, in fact, provided to Plaintiff.

Therefore, the motion for summary adjudication of Issue 1 is denied.

Issue 2

Defendant moves for summary adjudication of Plaintiff’s fraudulent concealment claim on the ground that Plaintiffs cannot establish a duty.  The motion for summary adjudication of Issue 2 is denied.

“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.”  Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. “[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he has known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.”  (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)

Manufacturers and distributors of chemical products have a statutory duty to disclose the toxic hazards of their products under the Federal Occupational Safety and Health Act (29 C.F.R. § 1910.1200), and also under California statute and regulation (Cal. Labor Code § 6390.5 and 8 C.C.R. § 5194).  Manufacturers and distributors of chemicals must provide their customers with a material safety data sheet (MSDS) for each hazardous chemical they produce (29 C.F.R. §1910.1200(g)(1).)  A statutory duty of disclosure arises from the relationship between workers who use hazardous chemicals and the manufacturers and distributors of those chemicals.  (Jones v. ConocoPhillips Co. (2011) 198 Cal. App.4th 1187, 1200.)  Plaintiff O’Leary alleges these statutory duties in the FAC.  (Dow Ex. “A,” ¶¶ 37-40, 90.)  A common law duty to warn of the hazards of toxic products is also recognized.  (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 331.)

Here, Plaintiff submitted evidence to show that he was employed by Boeing and that he was exposed Dow products during his employment.  (Plaintiff’s Additional Separate Statement of Facts and Supporting Evidence, 1-4.)  Thus, a triable issue of material fact exists as to the duty element of fraudulent concealment. Defendant’s argument that Plaintiff could not have justifiably relied upon any warnings is properly disputed under the same theory noted above, in that, Defendant submitted no competent evidence that any such warnings were provided.

Issue 3

Defendant moves for summary adjudication of Plaintiffs’ claim for punitive damages.  The motion for summary adjudication of Issue 3 is denied.  Defendant failed to meet its initial burden to show that an essential element or elements of Plaintiffs’ claim for punitive damages cannot be established. Therefore, the burden did not shift to Plaintiffs to provide specific facts to show the existence of a triable issue of material fact as to the claim for damages.  (CCP § 437c(p)(2).)

The failure of a manufacturer or distributor of products to provide warnings of the toxic hazards of its products may support the elements of malice and oppression.  (City of Sanger v. Superior Court (1992) 8 Cal.App.4th 444, 447.)  Punitive damages may be available for strict product liability claims arising from the conscious disregard of a product manufacturer for the health and safety of the users of its products. (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 810.)  Defendant has failed to establish with competent evidence that it provided warnings to Plaintiff.

Defendant also moves to adjudicate Plaintiffs’ claim for punitive damages on the ground that Plaintiffs have no evidence that an officer, director, or managing agent of Defendants acted maliciously, oppressively, or fraudulently to impose punitive damages, or that an officer, director, or managing agent of Defendants authorized or ratified the conduct of oppression, fraud, or malice. Defendants rely on Plaintiffs’ discovery responses.  Factually devoid discovery responses and deposition testimony can be used as evidence that Plaintiffs do not possess the necessary evidence to prove their claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)

Civ. Code, § 3294(b) states:

“An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Defendants served discovery requests asking Plaintiffs to set forth all facts to support Plaintiffs’ claim for punitive damages.  Defendants argue that Plaintiffs’ discovery responses failed to set forth any facts identifying an act of an officer, director, or managing agent constituting malice, oppression, or fraud, or an act of an officer, director, or managing agent authorizing or ratifying an act of oppression, fraud, or malice.  However, a review of the discovery responses reveal that Plaintiffs did state that the act of malice, oppression, or fraud was conducted by managing agents of Defendant.  (Plaintiff’s Separate Statement of Facts and Supporting Evidence, 38.)

Therefore, the discovery responses are not factually devoid and thus does not shift the burden of producing evidence to Plaintiffs in the manner required by Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.  The mere fact that Plaintiffs did not identify, by name, a managing agent does not render the discovery responses factually devoid for purposes of the burden shifting analysis of Union Bank.  Thus, since the burden did not shift to Plaintiffs, the motion for summary adjudication is denied as to Issue 3.

Therefore, Dow’s Motion for Summary Judgment and/or Summary Adjudication of Issues is denied.

Plaintiffs are ordered to give notice of this ruling.