Judge: Laura A. Seigle, Case: 19STCV41833, Date: 2023-02-15 Tentative Ruling
Case Number: 19STCV41833 Hearing Date: February 15, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION
On November 21, 2019, Plaintiffs
Julius Gillum and Mary Gillum filed this action. Julius Gillum passed away, and
on March 18, 2021, Plaintiff Mary Gillum individually and as
successor-in-interest to decedent Julius Gillum, and Mac Gillum and Michael
Gillum, as wrongful death heirs of decedent Julius Gillum, filed the first
amended complaint. Defendant McCord
Corporation moves for summary adjudication of Plaintiffs’ punitive damages
claim.
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.)
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 of 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 cites Plaintiffs’ responses to requests
for admission, asking Plaintiffs to make admissions relating to the punitive
damages claim in which Plaintiffs responded that the information was insufficient
to enable Plaintiffs to admit or deny the matter. (Motion at pp. 8, 9-10; Undisputed Material
Fact (“UMF”) 10-14, 7.) Defendant cited
no law that this type of response is admissible evidence. Code of Civil Procedure section 2033.410
states that a matter admitted in response to a request of admission is
conclusively established, but it does not state that a response that a
plaintiff has insufficient information is admissible as evidence. In Victaulic Co.
v. American Home Assurance Co. (2018) 20 Cal.App.5th 948, the court
explained that a denial of a request for admission “ ‘ “is not a statement of
fact; it simply indicates that the responding party is not willing to concede the
issue, and as a result, the requesting party must prove the fact at trial.’ ” [Citation.]”
A response that a party has insufficient information is not evidence
that a party cannot obtain the information.
Defendant also points to Plaintiffs’ responses to requests
for production relating to punitive damages. (UMF 5, 8, 16.) Plaintiffs did not produce documents specific
to Defendant and responded that Defendant’s written discovery responses,
depositions and trial transcripts, a list of cases involving Defendant, a list
of Defendant’s documents and prior discovery responses, and a list of studies
and articles, support the punitive damages claim against Defendant. (Id.) Defendant argues the fact that Plaintiffs “did
not produce a single document supporting their punitive damages claims” means
they cannot prove that claim. (Reply at
p. 3.) However, it
is not surprising that Plaintiffs do not have documents in their possession,
custody, or control concerning the internal management decisions and information
that Defendant had years ago. The fact
that Plaintiffs do not have such documents in their position does not mean that
Defendants do not have such documents, which Plaintiffs can obtain by serving requests
for production on Defendant. Also,
document requests do not require the responding party to identify and
re-produce documents the responding party received in discovery from the
propounding party. The proper way to
make the opposing party identify all documents supporting that party’s claims
is to propound an interrogatory asking for the identification of all documents supporting
a claim.
Apparently, Defendant did
not propound any interrogatory asking Plaintiffs to state all facts supporting
the request for punitive damages.
Because the responses to the RFAs are not
admissible evidence, Defendant only has the responses to document requests to
support its argument that Plaintiffs have no evidence. That is not enough. For example, it is possible Plaintiffs could
obtain trial testimony from defense witnesses establishing the basis for
punitive damages. In
sum, Defendant did not shift the burden.
The motion for summary adjudication is DENIED on
the claim for punitive damages.
The moving party is to give notice.