Judge: Kenneth J. Medel, Case: 37-2019-00032076-CU-MC-CTL, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 13, 2024

05/14/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Misc Complaints - Other Summary Judgment / Summary Adjudication (Civil) 37-2019-00032076-CU-MC-CTL CADENA VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 02/15/2024

Defendants the City of San Diego and Ronald Villa's (collectively 'Defendants') motion for summary judgment is GRANTED.

The parties' requests for judicial notice are GRANTED. (ROA # 162, 196.) A court can take judicial notice of official acts and public records, but not the truth of matters stated therein. (In re Joseph H. (2015) 237 Cal.App.4th 517, 541.) While the Court may take judicial notice of the existence of a document, it does not take judicial notice of its interpretation. (See C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1104 ['the general rule is that the truthfulness and interpretation of a document's contents are disputable'].) Plaintiffs' objections to Defendants' evidence in support of their motion for summary judgment (Nos. 1-4) are SUSTAINED to the extent the declarations' statements concern knowledge of third-parties (i.e., 'anyone else at the City').

Plaintiffs operative third amended complaint ('TAX') alleges two causes of action: (1) Fraudulent Concealment of Injury and (2) Intentional Infliction of Emotional Distress. (ROA # 129.) Plaintiffs also seek punitive damages against Defendant Ronald Villa. (Id.) Defendants move for summary judgment arguing that the claims are barred by the workers compensation exclusive remedy rule because Plaintiffs have failed to meet any of the necessary elements for a claim of fraudulent concealment. In particular, Defendants argue that there is no evidence they were aware of any exposure to airborne asbestos to their employees or asbestos injuries prior to January 26, 2018, that it therefore could not have concealed that information from its employees, and consequently they could not have aggravated Plaintiffs' injuries since they did not conceal anything.

Alternatively, Defendants move for summary adjudication as to: (1) Plaintiffs' first cause of action for IIED; and (2) Plaintiffs' claim and prayer for punitive damages against Ronald Villa.

Plaintiffs oppose the motion arguing that Defendants were aware of the presence of asbestos, were aware that a large amount of asbestos would be abated during the renovation, were aware of employee complaints regarding construction dust and health concerns during the renovation, chose to keep employees in the building during the renovation, and misled its employees regarding the exposure.

In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the Calendar No.: Event ID:  TENTATIVE RULINGS

3125643  34 CASE NUMBER: CASE TITLE:  CADENA VS CITY OF SAN DIEGO [IMAGED]  37-2019-00032076-CU-MC-CTL issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. (Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83.) In ruling on a summary judgment motion, the court must 'liberally construe' the opposing party's evidence and 'strictly scrutinize' the moving party's evidence, and 'resolve any evidentiary doubts or ambiguities' in favor of the opposing party. (McDonald v. Antelope Valley Community College District (2008) 45 Cal.4th 88, 96 – 97.) Similarly, 'any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.' (Reid v. Google, Inc.

(2010) 50 Cal.4th 512, 535.) A defendant moving for summary judgment must show that either one or more elements of the 'cause of action ... cannot be established' or that there is a complete defense to that cause of action. (CCP § 437c(p)(2).) Once defendants meet this burden, the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense. If plaintiff is unable to do so, defendants are entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) Exclusivity of Workers' Compensation An employer's liability for workplace injuries suffered by its employees is governed by Labor Code § 3600 et seq. Under the exclusivity rule codified in Labor Code §3602(b), when the injury occurs at the workplace, 'the right to recover compensation is, except as specifically provided in this section . . . the sole and exclusive remedy of the employee or his or her dependents against the employer.' '[A]s a general rule, an employee injured in the course of employment is limited to the remedies available under the Workers' Compensation Act.' (Davis v. Lockheed Corp. (1993) 13 Cal.App.4th 519, 521-522.) This includes an employee's exposure to toxins such as asbestos. (Melendrez v. Ameron Internat. Corp.

(2015) 240 Cal.App.4th 632, 639-640.) The exclusivity rule also encompasses claims for intentional infliction of emotional distress. (Mueller v. Los Angeles (2009) 176 Cal.App.4th 809, 823.) In determining whether an employee's claim of injury as against his or her employer falls within the workers compensation scheme, ''the workers' compensation laws 'shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.'. . . The rule of liberal construction 'is not altered because a plaintiff believes that [he] can establish negligence on the part of [his] employer and brings a civil suit for damages.' [Citation.] It requires that we liberally construe the [laws] 'in favor of awarding work[ers'] compensation, not in permitting civil litigation.'' (Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 834 [emphasis in original, quoting Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1065; citing Labor Code ¶ 3202].) In this case, it is undisputed that Plaintiffs were employees of Defendants and are claiming injuries incurred in the course their employment, but Plaintiffs assert that the fraudulent concealment exception applies.

Under Labor Code § 3602(b)(2): 'Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer's liability shall be limited to those damages proximately caused by the aggravation.' To establish that the 'fraudulent concealment' exception applies, a plaintiff must prove that: (1) the employer knew of the plaintiff's work-related injury: (2) the employer concealed their knowledge of a connection between the injury and their employment; and (3) this concealment aggravated the injury.

(Hughes Aircraft Co. v. Superior Court (1996) 44 Cal.App.4th 1790, 1794-1797.) 'If any one of these conditions is lacking, the exception does not apply and the employer is entitled to judgment in its favor.' (Silas v. Arden (2012) 213 Cal.App.4th 75, 91.) The exception is intended to be narrow and does not apply unless the employer has knowledge of the Calendar No.: Event ID:  TENTATIVE RULINGS

3125643  34 CASE NUMBER: CASE TITLE:  CADENA VS CITY OF SAN DIEGO [IMAGED]  37-2019-00032076-CU-MC-CTL injury prior to the employee. (Jensen v. Amgen, Inc. (2003) 105 Cal.App.4th 1322, 1326-1327 [acknowledging that an employer will rarely discovery the injury before the employee but holding that this requirement was intentional].) Accordingly, an employer must have actual knowledge and 'cannot be charged with concealing something of which it has no knowledge.' (Ashdown v. Ameron Internat. Corp.

(2000) 83 Cal.App.4th 868, 880.) In this case, Defendants' separate statement of undisputed material facts (SSUMF) sets forth ten facts.

(ROA # 158.) Of those issues, six are disputed by plaintiffs. (ROA # 187) [numbers 5-10]. Plaintiffs also submitted 64 additional facts. Of those, at least fifteen are disputed by Defendants and most were not relevant to the issues.

Defendants presented admissible evidence establishing that: (1) Defendants did not have notice of loose asbestos debris or airborne asbestos until at least January 26, 2018, when the City ordered all employees to leave the building; (2) Defendants did not have notice of any asbestos related injuries; and (3) none of the Plaintiffs have been offered or recommended treatment for asbestos exposure. This evidence consisted of the declarations of Karen Johnson and Ronald Villa, and the exhibits attached to the declaration of James Parker.

In response to this evidence, Plaintiffs presented admissible evidence that Defendants were aware of the presence of asbestos at the building, that Defendants were aware that a significant amount of asbestos abatement would occur during the renovation, that employees complained of dust and debris during the renovation, and that post evacuation air monitoring detected elevated levels of asbestos. This evidence consisted of the declarations of Macario Paz, David Finney, David Picone, Stephanie Teel, Matthew Smith, and Debra Wind, as well as the exhibits attached to the Notice of Lodgment and Plaintiff's judicially noticeable documents. The declarations in support of Plaintiffs' opposition also contained inadmissible speculation regarding the City lying and disregarding the safety of its workers.

The Court has carefully reviewed the arguments, authorities and evidence submitted by the parties.

Defendants met their initial burden of showing facts supporting judgment in their favor, including the lack of prior actual notice of loose or airborne asbestos and that upon receipt of the notice they ordered employees to leave the building. As such, Defendants' evidence demonstrates that Defendants would not have had actual notice of the connection between Plaintiffs' symptoms and the asbestos until that time and could not have concealed what they did not know. Further, since they were not concealing anything, this could not aggravate Plaintiffs' alleged injuries. As such, Defendants demonstrated that Plaintiffs cannot meet any of the necessary elements to fall within the fraudulent concealment exception.

The burden then shifted to the Plaintiffs to demonstrate a triable, material issue of fact. Plaintiffs did not meet their burden and failed to rebut Defendants' evidence. Plaintiffs conflated Defendants' knowledge of the presence of asbestos and that its abatement would occur during renovation, with actual knowledge that there was airborne asbestos present or Plaintiffs' complaints of respiratory issues were caused by such asbestos. Further, Plaintiffs' evidence of post-evacuation testing does not establish that Defendants had actual knowledge of the airborne asbestos prior to that time. Instead, Defendants presented evidence that the City was told that the air was being monitored and safe. Even if some of the post evacuation statements by City officials and their representatives could be construed as having some inaccuracies, these statements occurred after the evacuation, no employees were ordered back to the building, and Plaintiffs fail to show how these statements aggravated their alleged injuries.

Considering the strong policy favoring the exclusivity of workers' compensation, the narrowness of the fraudulent concealment exception, and Plaintiffs failure to refute Defendants' evidence, Defendants are entitled to judgment in their favor and Plaintiffs' claims are subject to the exclusivity rule codified in Labor Code §3602(b).

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