Judge: Laura A. Seigle, Case: 19STCV41649, Date: 2023-01-20 Tentative Ruling

Case Number: 19STCV41649    Hearing Date: January 20, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Plaintiffs Beth Payne, Tyler Payne and Griffin Payne allege that Phillip Payne was exposed to asbestos from Defendant DAP Products Inc.’s products. Defendant DAP Products Inc. moved for summary judgment on the ground that Plaintiffs cannot prove causation under Virginia law.

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.)

I.          Defendant’s Objections

No. 1:  Overruled.  See below.

II.                Summary Judgment

Defendant argues Plaintiffs cannot prove Phillip Payne used asbestos containing products from Defendant.  (Motion at p. 9.)  Defendant cites to Undisputed Material Fact (“UMF”) 40.  (Ibid.)  That UMF cites to Plaintiffs’ discovery responses.  Those responses state Phillip Payne used Defendant’s DryDex spackling, citing to specific deposition testimony.  (See, e.g., Index, Ex. 6 at pp. 9-11.)  These discovery responses are not factually-devoid.  Therefore, Defendant did not shift the burden on this point.

Next, Defendant argues that DryDex spackling did not contain asbestos or talc after 1991.  (Motion at p. 10.)  However, Defendant also acknowledges DryDex did contain some asbestos.  (Motion at p. 12.)  Plaintiffs contend the DryDex spackling Phillip Payne used contained asbestos.  (Opposition at p. 6.)  Plaintiffs refer to the analysis and conclusions of their expert Sean Fitzgerald.  Fitzgerald tested a container of DryDex he received from Phillip Payne.  (Fitzgerald Decl., ¶ 18.)  His testing confirmed asbestiform tremolite in the product.  (Id. at ¶¶ 24, 42.)  The Fitzgerald declaration shows the existence of a disputed issue concerning the existence of asbestos in the DryDex Phillip Payne used.

Defendant then argues, citing its own expert’s analysis, that the use of DryDex did not generate any significant amount of asbestos fibers in the air and therefore could not have caused harm to Phillip Payne.  (Motion at pp. 13-14.)  Plaintiffs’ expert James Dahlgren opines that Phillip Payne’s use of DryDex created sufficient exposure because his repeated use of the product created airborne asbestos fibers above background levels and every exposure above background levels is independently sufficient to cause mesothelioma.  (Dahlgren Decl., ¶¶ 19-21.)  Dahlgren cites to various articles in support of this conclusion.  (Ibid.)  Plaintiffs argue Dahlgren’s opinion is scientifically unreliable and lacks foundation.  (Reply at p. 2.)  Plaintiffs state Dahlgren’s theory – “that any exposure, even below background, is sufficient to cause mesothelioma” – is not accurate.  (Reply at p. 3.)  But Plaintiffs cite no evidence that this theory is not accurate.  Plaintiffs also contend that Phillip Payne’s home repair projects occurring four to five times over the relevant years is not enough to cause mesothelioma.  (Reply at p. 3.)  But again Plaintiffs cite no evidence that such exposure would not be enough.

Defendant argues that Dahlgren’s opinion does not satisfy Virginia law because Dahlgren did not consider the risk of mesothelioma from DryDex separately from other exposures.  (Reply at p. 3.)  However, Dahlgren stated that the exposure from use of DryDex was “independently sufficient to have caused his mesothelioma.”  (Dahlgren Decl., ¶ 21.)  The use of “independently” in that conclusion means independent of other exposures.  In other words, the expert concludes that regardless of other potential exposures, the exposure from DryDex was enough to cause mesothelioma.  This opinion comports with Virginia causation law.

Defendant also cites its own expert, William Longo, who concluded that use of DryDex released no asbestos fibers and therefore could not have caused Phillip Payne’s diseases.  (Reply at p. 5.)  At most, this creates a disputed fact for trial.

In sum, Plaintiffs showed the existence of disputed issues of material fact.  The motion for summary judgment is DENIED.

III.             Summary Adjudication

Defendant moves for summary adjudication of the strict liability cause of action on the ground that Virginia law does not recognize this cause of action and on the punitive damages claim.  Plaintiffs do not oppose.  Therefore summary adjudication motion is granted on the strict liability cause of action and punitive damages claim.

Defendant moves for summary judgment of the second cause of action for breach of express and implied warranties because there was no “active representations” and no vertical privity.  (Motion at pp. 15-16.)  “[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.)  “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 Plaintiffs have no evidence that Defendant ever made any active representations about any of its products because Phillip Payne never read any literature from Defendant and never spoke to anyone from Defendant.  (Motion at p. 16.)  Plaintiffs do not dispute that they have no evidence DAP made an express warranty to Phillip Payne.  (Opposition at p. 17 [acknowledging “Plaintiffs have introduced no evidence DAP made an express warranty to Mr. Payne concerning its DryDex products”].) 

Defendant also argue Plaintiffs have no evidence of vertical privity because Defendant never sold a product directly to Phillip Payne.  (Motion at p. 16.)  Plaintiffs do not dispute this, but instead suggest that a sales contract between a plaintiff and a defendant is not an element of an implied warranty cause of action.  (Opposition at p. 16.)  Plaintiffs do not cite any case holding that a retail purchaser of a product can pursue an implied warranty cause of action against a manufacturer that did not sell the product to the purchaser.  Because Plaintiffs do not allege that Phillip Payne purchased products from Defendant, there can be no implied warranty cause of action.  Therefore, summary adjudication is granted on the second cause oof action.

The motion for summary judgment is DENIED.  The motion for summary adjudication is GRANTED as to the strict liability cause of action, warranty cause of action, and punitive damages claim.

The moving party is to give notice.