Judge: Gary Y. Tanaka, Case: BC708163, Date: 2023-05-10 Tentative Ruling

Case Number: BC708163    Hearing Date: May 10, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                      Wednesday, May 10, 2023

Department B                                                                                                                          Calendar No. 10

PROCEEDINGS

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

BC708163

1.      Petro Source Investments Inc. (“Petro Source”) and BC Stocking Distributing’s (“BC Stocking”) Motion for Summary Adjudication  

TENTATIVE RULING

            Petro Source Investments Inc. (“Petro Source”) and BC Stocking Distributing’s (“BC Stocking”) Motion for 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

            Plaintiffs’ Objections, dated April 26, 2023:

            Plaintiffs’ objections are 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).)

Defendants move for summary adjudication in their favor and against Plaintiffs Dan O’Leary and Darla O’Leary (“Plaintiffs”) as follows:

“Issue 1: Plaintiffs’ First Cause of Action for Negligence must fail as a matter of law because the claim is barred by the statute of limitations.

Issue 2: Plaintiffs’ Second Cause of Action for Strict Liability – Failure to Warn must fail because the claim is barred by the statute of limitations.

Issue 3: Plaintiffs’ Third Cause of Action for Strict Liability – Design Defect must fail because the claim is barred by the statute of limitations.

Issue 4: Plaintiffs’ Fifth Cause of Action for Breach of Implied Warranties must fail because the claim is barred by the statute of limitations.

Issue 5: Plaintiffs’ Sixth Cause of Action for Loss of Consortium must fail because the claim is barred by the statute of limitations.” (Notice of Motion, page 2, lines 13-22).

Defendants argue that the first through third, fifth, and sixth causes of action are barred by the statute or statutes of limitations. However, Defendants fail to mention at all in their memorandum of points and authorities, separate statement, or supporting evidence, the actual statute or statutes of limitations that are applicable to Plaintiffs’ causes of action. Defendants merely argue that Plaintiffs had notice of the claims no later than July 2016. Then, Defendants mention that the Complaint was filed on May 31, 2018, and that Plaintiffs’ First Amended Complaint was filed on October 15, 2018. (Defendants’ Separate Statement of Facts, 1-7.) Defendants state that the length of the statute of limitations is two years, but, again, as noted above, failed to mention or reference at all the specific statute that provides for the alleged two-year limitation period. The only actual statute that is referenced is CCP § 474 with Defendants arguing that Plaintiffs cannot utilize this statute because the action, for purposes of the statute of limitations, does not relate back to the filing date of the original Complaint.  The actual statute of limitations, however, is not mentioned at all.

Cal. Rules of Court, Rule 3.1113(b) states: “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”  Here, Defendants fail to state, at all, the specific statute of limitations that is relied upon.  The failure to even state or refer to the specific statute of limitations cannot constitute a concise statement of the law or a discussion of the statute for purposes of Rule 3.1113(b).

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (emphasis added). In Aguilar, the Supreme Court made clear that the moving party has both a burden of persuasion and burden of production – the latter dealing specifically with evidence. Id. at 850-51.  Here, by failing to even reference, at all, the actual statute of limitations to which Defendants contend act as a bar to Plaintiffs’ claims, Defendants have failed to meet their burden of persuasion. Thus, the burden does not shift to Plaintiffs to provide specific facts to show the existence of a triable issue of material fact.

In addition, Defendant Petro Source failed to state CCP § 340.8 in its Answer.  Instead, Defendant Petro Source has now belatedly attempted, with the Reply, to seek leave to amend its Answer to add the specific statute, CCP § 340.8, as a basis for a statute of limitations defense. Defendants apparently recognize established authority which mandates that the Answer must plead the specific statute of limitations within the Answer. A pleading that fails to specify both the applicable statute and subdivision “raise[s] no issue and present[s] no defense.”  Davenport v. Stratton (1944) 24 Cal.2d 232, 246-247.  Thus, Defendant cannot rely on this specific statute of limitations as a basis for its motion for summary adjudication.  Also, this belated attempt to amend the Answer further exemplifies both Defendants’ failure to meet their burden of persuasion on a motion for summary adjudication.  As mentioned above, the parties are required to specifically identify the statute of limitations that provides the basis for their contention that the claims are barred instead of merely setting forth the purported time frame of an unidentified statute leaving for the Court to guess or search for the specific statute.

Defendants argue that the affirmative defense may be raised, for the first time, in a motion for summary judgment so long as no prejudice is shown.  Atkins v. St. Cecilia Catholic School (Cal. Ct. App., Apr. 28, 2023, No. B314220) 2023 WL 3142316, at *7.  However, here, the specific statute which supports the affirmative defense was only set forth in the Reply.  As mentioned above, the specific statute was not referenced at all in the original motion.

Thus, Defendants Petro Source Investments Inc. (“Petro Source”) and BC Stocking Distributing’s (“BC Stocking”) Motion for Summary Adjudication is denied.

The Court makes no ruling on Petro Source’s request for leave to amend the Answer and reserves any ruling to a properly noticed motion for leave to amend.

Plaintiffs are ordered to give notice of this ruling.