Judge Laura A. Seigle, Case 20STCV13372 2022-12-21 Tentative Ruling

Judge: Laura A. Seigle, Case: 20STCV13372, Date: 2022-12-21 Tentative Ruling

Case Number: 20STCV13372 Hearing Date: December 21, 2022 Dept: 15

[TENTATIVE] ORDER RE DEFENDANT CLAYTON INDUSTRIES’ MOTION FOR SUMMARY JUDGMENT

BACKGROUND

On April 3, 2020, Plaintiffs Martha Cornejo, Ernest Cornejo, Carolos Cornejo, Esther Ramirez, Julio Cornejo, Martha Montanez, Rene Cornejo, Ruben Cornejo and Veronica Rublcava (collectively, “Plaintiffs”) filed this action for the wrongful death of Ernest Cornejo (“Decedent”) against Clayton Industries (“Defendant”), among others. On October 5, 2022, Defendant filed this motion for summary judgment on the grounds that Plaintiffs cannot prove Defendant supplied any asbestos-containing products to which Decedent was exposed.

EVIDENTIARY OBJECTIONS

Plaintiffs filed Evidentiary Objections to the Declaration of Todd M. Thacker proffered by Defendant, which the court rules on below:

Nos. 1, 2: Sustained.

No. 3: Overruled.

DISCUSSION

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.)

Defendant argues that Plaintiffs have no evidence that Decedent was exposed to asbestos from Defendant’s products. (Motion at pp. 2, 4.) Defendant refers to Plaintiffs’ response to Standard Interrogatory. (Motion at pp. 2, 4.) Standard Interrogatory No. 18 asked for a description of each defendant’s product that allegedly contains asbestos, the name and product type to which the plaintiff was exposed, the circumstances in which he was exposed, the name of supervisors or co-workers at the worksite where he was exposed, and all other persons with knowledge thereof. (“Undisputed Material Fact”) UMF 3; Thacker Decl., Ex. B. at pp. 9, 10.) Plaintiffs responded they “do not know what asbestos products [Mr. Cornejo] worked with or what asbestos products were used at the [General Motors] plant.” (Motion at p. 2; Thacker Decl., Ex. C. at p. 4; UMF 5.) Defendant also argues that Plaintiffs did not identify any co-workers or other living witnesses against Defendant in the response. (Motion at pp. 2-3; UMF 7.)

However, in response to the Standard Interrogatory No. 18, Plaintiffs listed companies and products they believe Decedent may have been around at the General Motors plant. (Thacker Decl., Ex. C. at p. 4.) This list included Defendant’s boilers. (Id. at p. 4.) Plaintiffs also referred to a book listing some potential co-workers at the plant. (Ibid.) These responses are not factually devoid and do not show that Plaintiffs are not able to obtain the necessary evidence from, for example, co-workers who could testify about the presence of Clayton boilers at the General Motors plant.

In addition, Defendant relies on the Declaration of Todd Thacker, which states “Various of Mr. Cornejo’s family members have been deposed during this action, including Rueben Cornejo, Martha Cornejo, Julio Cornejo, Martha Montanez, Esther Ramirez, Carlos Cornejo, and Veronica Rublcava. At each of these depositions, Plaintiffs’ counsel stipulated that the witness would not provide any testimony regarding Mr. Cornejo’s work at the General Motors plant.” (Thacker Decl., ¶¶ 5-6.) Plaintiffs objected that these statements lacked foundation and personal knowledge. Because the declaration did not attach the portions of the deposition transcripts containing the stipulations and did not establish how Thacker knew about the stipulations, the court sustains these objections. In any event, assuming the stipulations about family members exist, that does not foreclose Plaintiffs from obtaining exposure evidence from co-workers.

The Thacker Declaration also stated “Plaintiffs have not identified any co-worker witnesses for the General Motors plant to this point in the litigation, and no such witnesses have been deposed or offered for deposition.” (Thacker Decl., ¶7.) However, Defendant did not show that it served discovery asking for the co-workers’ names and contact information, or even that Defendant sent an informal request for that information, after receiving Plaintiffs’ responses to Standard Interrogatory No. 18, which mentioned the existence of co-workers, back in September 2020. (Thacker Decl., Ex. C.) Nor did Defendant move to compel further responses, if it believed that the references to co-workers at General Motors was vague and if it believed Plaintiffs should have provided more detailed information, including contact information for the co-workers, in response to Standard Interrogatory No. 18.

Because Defendant failed to conduct more targeted discovery or pursue more complete discovery responses, the court cannot simply infer that Plaintiffs cannot obtain evidence to link Defendant to Decedent’s illness and death or provide witnesses.

Therefore, the motion for summary judgment is DENIED.

The moving party is ordered to give notice.