Judge: Laura A. Seigle, Case: 19STCV35344, Date: 2023-01-23 Tentative Ruling

Case Number: 19STCV35344    Hearing Date: January 23, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Plaintiffs allege William Gaborko was injured as a result of exposure to asbestos-containing products, including from Defendant Emerson Electric Co.  On October 7, 2022, Defendant filed a motion for summary adjudication.

            “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contents that the cause of action has no merit or that there is no affirmative defense thereto, . . . or that there is no merit to a claim for damages. . .  A  motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Code Civ. Proc., § 437c, subd. (f)(1).)

A defendant seeking summary judgment must “conclusively negate[] a necessary element of the plaintiff’s case, or . . . demonstrate[] that under no hypothesis is there a material issue of fact that requires the process of trial.”  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.)  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.)  A plaintiff’s deposition testimony that the plaintiff has no knowledge of any exposure to the defendant’s products may be sufficient to shift the burden to the plaintiff to demonstrate the existence of triable issues of fact.  (McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1103-1104.)  The plaintiff’s deposition testimony that he did not recall ever working with a product manufactured by the defendant may not be sufficient to shift the burden if the plaintiff is able to prove his case by another means.  (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439.)  “ ‘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.’”  (Id. at p. 1440.)

            A.        Summary Adjudication Re Brands of Motors

            Defendant seeks summary adjudication of Plaintiffs claims regarding two of the three brands of motors sold by Defendant and at issue in this case.  However, this motion will not completely dispose of a cause of action because the causes of action regarding the third brand will remain for trial.  Therefore, summary adjudication on this ground is denied.

            B.        Summary Adjudication of Implied Warranty Cause of Action

            Defendant also moves for summary adjudication of the second cause of action for breach of the implied warranty.  That cause of action alleges Defendant impliedly warranted that its products were of good and merchantable quality and fit for their intended use.  (FAC, ¶ 38.)  “Vertical privity is a prerequisite in California for recovery on a theory of breach of the implied warranty of fitness, unless an exception applies.  [Citations.]  Vertical privity means that the buyer and seller were parties to the sales contract.”  (Cardinal Health 301,  Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 138.) 

Defendant argues this cause of action fails because there is no evidence Plaintiff bought a consumer good from Defendant.  (Motion at p. 7.)  Plaintiffs allege Gaborko was exposed when he worked in the Navy and as an electric motor repairman.  (Opposition at pp. 5, 6.)  Plaintiffs do not allege or present evidence that Gaborko was exposed because he bought a consumer good from Defendant.  Nor do Plaintiffs show any exception to the privity requirement applies here.

            Therefore, summary adjudication is granted on the implied warranty cause of action.

            C.        Summary Adjudication of Express Warranty Cause of Action

            The second cause of action also alleges breach of the express warranty.  That cause of action alleges Defendant expressly warranted that its products were of good and merchantable quality and fit for their intended use.  (FAC, ¶ 38.)  “[A] statement made by a seller constitutes an express warranty” if “the seller’s statement constitutes an ‘affirmation of fact or promise’ or ‘description of the goods’ under California Uniform Commercial code section 2313, subdivision (1)(a) or (b).”  (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 20.)  If “language used [is] susceptible to creation of a warranty, it must then be determined wither the statement was ‘part of the basis of the bargain.’”  (Ibid.) 

            Defendant argues this cause of action fails because there is no evidence Defendant ever made an express statement to Plaintiff.  (Motion at p. 7.)  Defendant points to Plaintiffs’ responses to interrogatories.  (Undisputed Material Fact (“UMF”) 49.)  Special Interrogatory No. 7 asked for all facts supporting the contention Defendant was liable for breach of an express warranty.  (Index, Ex. D at p. 20.)  Plaintiffs incorporated their response to Interrogatory No. 1, which stated there were no warnings on Defendant’s products.  (Id. at pp. 6, 20.)  The interrogatory responses do not identify any express statement made by Defendant.  Thus, the burden shifts to Plaintiffs.

            Plaintiffs contend Defendant put the words “Asbestos Protected” on some of Defendant’s motors.  (Opposition at p. 6; Additional Undisputed Material Fact (“AUMF”) 9.)  Plaintiffs cite to an interrogatory response from another case stating “the words ‘asbestos protected’ appeared on some of Defendant’s motors.”  (Tyler Decl., Ex. 4 at p. 18.)  But Plaintiffs cite no evidence that “Asbestos Protected” appeared on any of the motors Gaborko worked on.  Plaintiffs have not shown any disputed issues concerning an express warranty regarding the motors that allegedly exposed Gaborko to asbestos.  Therefore summary adjudication is granted on the express warranty cause of action.

            D.        Summary Adjudication of the Punitive Damages Claim

Defendant moves for summary adjudication of the claim for punitive damages.  When the motion targets a request for punitive damages, a higher standard of proof is at play.  “Although the clear and convincing evidentiary standard is a stringent one, ‘it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment [or summary adjudication.’  [Citations.]  Even so, ‘where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.’  [Citation.]”  (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1158-1159.)  “Summary judgment or summary adjudication ‘ “ ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.’ ” ’.  [Citation.]”  (Id. at p. 1159.)

“ ‘[I]ntentionally marketing a defective product knowing that it might cause injury and death is ‘highly reprehensible.’  [Citation.]”  (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 85.)  Punitive damages may be available when a defendant knows the dangers of asbestos, took action to protect its own employees from the hazard, knew that its products were likely to pose a danger to users, and did not warn them.  (Pfeifer v. John Crane, Inc. (2013) 220 Cal.Ap.4th 1270, 1300.)  Such evidence “was sufficient to show malice, that is, despicable conduct coupled with conscious disregard for the safety of others.”  (Id. at pp. 1300-1301.)  On the other hand, a defendant’s knowledge of trace amounts of asbestos in talc does not necessarily mean that the defendant knew the asbestos in talc “would cause a high probability of injury.”  (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 873.)  There must be evidence of knowledge that exposure to talcum powder would cause mesothelioma.  (Id. at p. 874.) 

            Defendant argues Plaintiffs have no evidence Defendant acted with malice, fraud or oppression.  (Motion at p. 8.)  Defendants cite to Plaintiffs’ responses to Special Interrogatory No. 8, asking for all facts supporting the request for punitive damages.  (UMF 77; Index, Ex. D at p. 20.)  Plaintiffs responded by incorporating their response to Interrogatory No. 1, which stated in conclusory fashion that Defendant “was aware or should have been aware that members of the general public and other ‘exposed persons’, who could come in contact with their asbestos-containing products had no knowledge or information indicating that asbestos or asbestos-containing products could cause injury,” and that Defendant knew its products “were hazardous and could cause injury or death.  (Index, Ex, D at pp. 7, 9, 20.)  Plaintiffs cite no specific evidence supporting these conclusory assertions.  Thus, Defendant shifted the burden.

            The hearing date on this motion was continued for Plaintiffs to take additional discovery.  Plaintiffs then filed supplemental opposition papers.  In those supplement opposition papers, Plaintiffs do not cite to evidence that Defendant knew that the asbestos in its motors would cause a high probability of injury to people who used or repaired them.  Plaintiffs did not cite to evidence that Defendant took action to protect its own employees from the hazard, knew its products were likely to pose a danger to users, and did not warn the users.  Because Plaintiffs have not shown a disputed issue of material fact regarding punitive damages, summary adjudication is granted.

            D.        Conclusion

            The motion for summary adjudication of the claims regarding Leroy-Somers and Emerson branded motors is DENIED. 

            The motion for summary adjudication of the second cause of action for breach of expressed and implied warranties is GRANTED.

            The motion for summary adjudication of the punitive damages claims is GRANTED.

The moving party is to give notice.