Judge: Laura A. Seigle, Case: 20STCV13372, Date: 2022-12-23 Tentative Ruling
Case Number: 20STCV13372 Hearing Date: December 23, 2022 Dept: 15
[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT
Plaintiffs allege Ernest Cornejo was injured as a result of exposure to asbestos-containing products purchased from Defendant Dunn-Edwards Corporation (“Defendant”). On October 3, 2022, Defendant filed a motion for summary judgment and summary adjudication on the grounds that Plaintiffs cannot prove Defendant supplied any asbestos-containing products to which Cornejo was exposed, cannot prove their fraud and conspiracy causes of action, and have no evidence supporting punitive damages.
A. Objections
Plaintiffs’ Objections
Plaintiffs did not consecutively number their objections. The court rules on them in the order they were presented:
Nos. 1, 2, 3, 4: Overruled. See below.
Nos. 1, 2, 3, 4, 1, 2, 3, 4, 5, 6, 7, 8, 9. The court did not rely on this evidence.
Defendant’s Objections
No. 1: Sustained.
Nos. 2, 3: Overruled.
Nos. 4, 5, 6, 7, 8, 9. 10, 11, 12, 13, 14: The court did not rely on this evidence.
B. Summary Judgment
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 contends Plaintiffs have no evidence Cornejo used any asbestos-containing products from Defendant, citing to Plaintiffs’ interrogatory responses. (Motion at p. 7; Undisputed Material Fact “UMF” 3.) In response to interrogatories asking for all facts supporting Plaintiffs’ claims against Defendant, Plaintiffs responded that Cornejo used “asbestos-containing joint compounds, paints, and patching compounds in the 1960s and/or 1970s” from Defendant. (Putnam Decl., Ex. D at p. 2.) The responses list W 202 Prokote Latex paint, Plastacoat, Synkoloid Triple Duty Joint Cement, Synkoloid Plaster Bond, and Synkoloid Prime-N-Fill as asbestos containing products sold by Defendant. (Id. at pp. 3-4.) The responses do not identify evidence supporting the assertion that Cornejo used or obtained those particular products from Defendant. The responses identified Plaintiffs “including decedent’s spouse and his children” as having knowledge. (Id. at p. 35.)
Defendant also refers to the deposition testimony of Cornejo’s family members. (Motion at p. 7.) Ruben Cornejo testified his father did remodeling of the family homes, his father used Hamilton mud joint compound, he does not know where the Hamilton mud joint compound, paint or drywall patch came from. (Putnam Decl., Ex. K at pp. 34, 38, 39, 45, 46-47.) He testified that his father bought paint from Dunn-Edwards but he does not know whether the paint to fix up a particular residence was purchased from Dunn-Edwards. (Id. at pp. 47, 48.) Regarding a later home repair job, he testified Cornejo used Hamilton mud and paint bought at a hardware store called Stevenson’s. (Id. at pp. 57-58.) He said Cornejo used Dunn-Edwards paint and DAP caulking and bought caulking material, patchwork, and stucco patch from Dunn-Edwards. (Id. at pp. 60-61, 62, 66, 78, 87.) He does not remember the name of the stucco patch, but it came in powder form in smaller boxes. (Id. at pp. 66, 68.) He has no information that the paint, primer, or joint compound contained asbestos. (Id. at p. 95; Id., Ex. K at p. 192.) He does not know where Corneo purchased particular DAP products. (Id., Ex K. at pp. 238-239.) He is not familiar with Synko or Synkoloid products and has no information about whether his father ever used those products. (Id. at p. 319.)
Martha Cornejo testified Cornejo always bought Dunn-Edward paint, but she does not know of any other products he bought at Dunn-Edwards. (Putnam Decl., Ex. M at pp. 20-21.) Julio Cornejo testified Cornejo always used Dunn-Edward paint but he does not recall other products purchased from Dunn-Edwards. (Putnam Decl., Ex. N at pp. 75-76.) Martha Montanez had no knowledge about the products that exposed Cornejo to asbestos. (Putnam Decl., Ex. O at p. 7.) Carlos Cornejo testified Cornejo used Dunn-Edwards paint but has no information about any other products sold by Dunn-Edwards. (Putnam Decl., Ex. U at pp. 156-157.) Defense counsel stated deposition transcripts were not yet available for three plaintiffs, but he attended the depositions of two who testified they only knew Defendant as selling paint and was informed the third witness testified likewise. (Putnam Decl., ¶¶ 24-26.)
This deposition testimony of the witnesses Plaintiffs identified as knowledgeable does not contain evidence that Cornejo used W 202 Prokote Latex paint, Plastacoat, Synkoloid Triple Duty Joint Cement, Synkoloid Plaster Bond, or Synkoloid Prime-N-Fill. The testimony only establishes that Cornejo used Dunn-Edwards paint and bought caulking material, patchwork, and stucco patch from Dunn-Edwards. The deposition testimony and discovery responses do not provided evidence that Cornejo used a type of Dunn-Edwards paint that contained asbestos or that any brand of caulking material, patchwork or stucco patch he used from Dunn-Edwards contained asbestos. Defendant has shown that Plaintiffs do not have and cannot obtain evidence that Cornejo used asbestos-containing products from Defendant, and thus has shifted the burden.
Plaintiffs start by objecting to defense counsel’s declaration about the three depositions where transcripts were not available Defendant filed the motion. If Plaintiffs request, the court will continue the hearing so that those deposition transcripts can be filed and Plaintiffs can address whether those three plaintiffs testified to knowledge to knowledge about products Cornejo used from Dunn-Edwards.
Plaintiffs contend that Defendant sold only one type of stucco patch before 1975 – Synkoloid Plaster-Bond – and it contained asbestos. (Opposition at p. 2; Plaintiff’s Separate Statement (“SS”) 10.) In support of this fact, Plaintiffs cite Defendant’s interrogatory responses and a deposition of Robert Wendoll. (SS 10.) The interrogatory response states that Defendant sold Synkoloid Plaster-Bond containing asbestos until 1975. (Bendon Decl., Ex. F at p. 17.) Wendoll, testifying as Defendant’s corporate representative, stated the only stucco patch Dunn-Edwards sold before 1975 was Synkoloid Plaster Bond, in 1975 Synkoloid removed asbestos from this product, and if Cornejo bought stucco patch from Defendant in 1975 it contained asbestos. (Bendon Decl., Ex. Q at pp. 12, 30-31, 38-39.) This evidence is sufficient to create a dispute issue of material fact about whether Cornejo was exposed to asbestos from stucco patch purchased from Defendant.
Defendant argues Plaintiffs cannot prove Cornejo died from an asbestos-related illness because no one diagnosed him as suffering from such a disease, and his death certificate does not state he died of such a disease. (Motion at p. 9.) This evidence does not establish that Plaintiffs have no ability to prove he suffered from an asbestos-related disease, for example, by having experts testify to such.
Therefore, summary judgment is denied.
C. Summary Adjudication
1. Third Cause of Action
Defendant seeks summary adjudication of the third cause of action for fraud, which alleges fraudulent concealment and fraudulent misrepresentations. The First Amended Complaint alleges vaguely, with no specificity as to Defendant, that all of the defendants “intentionally failed to disclose certain facts known only to them and that Ernest Cornejo could not have discovered, regarding the existence of hazardous asbestos that became airborne,” and “intended to deceive Ernest Corenjo by concealing the facts.” (FAC at p. 11.) It also alleges, with no specificity as to Defendant, that all of the defendants “represented to Ernest Cornejo that certain facts were true: the air was safe to breath because it did not contain asbestos, and any asbestos was not hazardous,” and that all of the defendants “knew that the representations were false when they made them, or that they made the representations recklessly and without regard for their truth.” (FAC at p. 13.)
Defendant argues there is no evidence it concealed any fact or had any duty to disclose facts to Plaintiffs. (Motion at p. 12.) Defendant points to Plaintiffs’ responses to an interrogatory asking for all facts supporting the fraud cause of action. (UMF 57.) The response to interrogatory No. 4 incorporates the response to interrogatory No. 1. (Putnam Decl., Ex. D at p. 34.) The response to interrogatory No. 1 does not identify evidence showing a fact that Defendant intentionally failed to disclose, does not specify evidence showing Defendant intended to deceive Cornejo, and does not identify any false statement Defendant made to Cornejo. Defendant shifted the burden.
In opposition, Plaintiffs argues that the First Amended Complaint does not allege fraudulent misrepresentation based on an affirmative statement. (Opposition at p. 17.) That is not correct. As quoted above, the fraud cause of action alleges all defendants “represented to Ernest Cornejo that certain facts were true.” (FAC at p. 13.)
Plaintiffs argue that their fraud cause of action actually is based on the allegation that Defendant failed to warn its customers. (Opposition at p. 17.) That is not alleged with any specificity in the third cause of action. Even if the vague allegations in the third cause of action can be read as alleging Defendant failed to warn its customers, Plaintiffs present no evidence of that. The response to interrogatory No. 1 contains conclusory statements about Defendant’s failure to warn without citing specific evidence backing up those conclusions. (See, e.g., Putnum Decl., Ex. D at p. 17.) In opposition, Plaintiffs did not submit evidence about whether the products Cornejo purchased from Defendant during the relevant time period did or did not contain warnings. For example, Plaintiffs did not submit their own testimony about whether they saw or did not see warnings on the products from Defendant. Also, Plaintiffs submitted no evidence that during the relevant time period in the 1970s into the 1980s, Defendant knew the relevant products contained asbestos and were hazardous to users.
Because Plaintiff failed to show any disputed issue of material fact, the motion for summary adjudication is granted as to the third cause of action.
2. Fourth Cause of Action
The fourth cause of action is for conspiracy to defraud. It alleges that all of the defendants were in a conspiracy with each other to conceal information from Cornejo. (FAC at p. 22.)
Defendant argues that conspiracy is not a cause of action; that because the third cause of action fails, the fourth cause of action must also fail; and Plaintiffs have no evidence Defendant engaged in a conspiracy. (Motion at pp. 12-13.) Plaintiffs’ opposition does not address these arguments or this cause of action.
Defendant is correct on all points. In response to an interrogatory asking for all facts supporting this cause of action, Plaintiffs did not identify any evidence that Defendant conspired with other Defendants. (UMF 62; Putnum Decl. Ex D at pp 1-33.) Summary adjudication is granted on this cause of action.
3. Punitive Damages
Defendant argues Plaintiffs cannot prove the malice, fraud or oppression necessary for punitive damages. (Motion at p. 13.)
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.)
Defendant points to Plaintiffs’ response to interrogatory No. 8 asking for all facts supporting the claim for punitive damages against Defendant. (UMF 67; Putnam Decl., Ex. C at p. 4.) Plaintiffs responded that Defendant did not do tests on asbestos exposure, did not warn its employees of the hazards of asbestos exposure, and does not know if it issued warnings. (Putnam Decl., Ex. D at pp. 51-52.) This evidence does not show that Defendant knew the products it was selling during the relevant time period contained asbestos or knew that the asbestos would cause a high probability of injury to its customers. Defendant has satisfied its initial burden, and the burden shifts to Plaintiffs.
Plaintiffs argue Defendant “knew of the hazards of their product, they did not warn about it, they did not recall it.” (Opposition at p. 15.) Plaintiffs refer to Defendant knowing about asbestos contamination in talc in products in the 1990s or early 2000s and first being sued for selling asbestos products in 1987. (Opposition at p. 16; SS 49, 51, 55.) According to Plaintiffs, the relevant time period is the mid-1970s to the mid-1980s. (SS 18.) Plaintiff’s evidence is not clear and convincing proof that from the mid-1970s to the mid-1980s, Defendant knew that the asbestos in the talc in the products at issue here could cause injury to users. Therefore, summary adjudication is granted.
The motion for summary judgment is DENIED. The motion for summary adjudication is GRANTED as to the third and fourth causes of action and request for punitive damages.
The moving party is to give notice.
Defendant The Boeing Company (“Defendant”) filed a motion for summary judgment on the ground that Plaintiffs Martha Cornejo et al. cannot show exposure to a product from Defendant containing asbestos. Plaintiffs did not file an opposition.
Defendant served a special interrogatory asking for all facts supporting the claim that Defendant’s products exposed Decedent to asbestos, and Plaintiffs responded the Decedent was exposed to asbestos from the Sana Susana Field Laboratory by hiking in the hills around that facility in the 1960s. (Undisputed Material Facts (“UMF”) 2, 3.) Plaintiffs identified Ruben Cornejo, Esther Cornejo, and Martha Montanez, as well as Defendant’s employees Michael Aber; Bradley Ashby; William Burton; Larry Colshan; Roosevelt Irving, Sr.; Theodore Jessen; and James Dean Lines, as having knowledge of the exposure. (UMF 4.)
Ruben Cornejo testified the Decedent was not the type to go hiking and had not been to the facility. (Ex. F at pp. 119, 120, 126.) Martha Cornejo does not know if the Decedent went hiking. (Ex. G at p. 85.) Martha Montanez has no knowledge about the Decedent’s exposure to asbestos. (Ex. H at pp. 7-8.) Julio Cornejo has no knowledge of the Decedent’s exposure to asbestos. (Ex. I at p. 2.) Rene Coreno does not know if the Decedent ever went hiking. (Ex. J. at pp. 153-154.) Plaintiffs did not explain how employees of Defendants would have information about the Decedent hiking in the hills around the facility in the 1960s.
This evidence was sufficient to shift the burden to Plaintiffs. Because Plaintiffs did not file an opposition, they did not show the existence of any disputed issue of material fact.
Therefore, Defendant The Boeing Company’s motion for summary judgment is GRANTED. Defendant is to file a proposed judgment within five days.
The moving party is to give notice.
[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT
Plaintiffs allege Ernest Cornejo was injured as a result of exposure to asbestos-containing products, including from asbestos in talc supplied by Defendant Pfizer Inc (“Defendant”). On October 7, 2022, Defendant filed a motion for summary judgment and summary adjudication on the grounds that Plaintiffs cannot prove Defendant supplied any asbestos-containing products to which Cornejo was exposed, cannot prove their fraud cause of action, and have no evidence supporting punitive damages.
A. Objections
Plaintiffs’ Objections
Nos. 1, 2: The court did not rely on this evidence.
Defendant’s Objections
Nos. 1, 2, 3, 4, 5, 6, 7, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29: Overruled.
Nos. 8, : Sustained.
Nos. 9, 10, 15: The court did not rely on this evidence.
B. Summary Judgment
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 Plaintiffs have no evidence that Cornejo used any product containing Pfizer talc that contained asbestos, pointing to Plaintiff’s interrogatory responses as factually devoid. (Motion at p. 6.) Defendant does not specifically identify the defective interrogatory responses in their motion. (Ibid.) Based on Defendant’s Separate Statement, Defendant seems to be referring to the response to Special Interrogatory No. 1. (Undisputed Material Fact “UMF”) 3.) In that response, Plaintiffs state Cornejo may have worked with joint compounds and paint products containing Pfizer talc containing asbestos. (Compendium, Ex. E at p. 2.) The response cites testimony from other cases establishing that Pfizer talc was in various products and that talc contained asbestos. (See, e.g., id. at pp. 7-9.)
Defendant also argues Plaintiffs cannot prove any product Cornejo used contained talc because talc is not a necessary ingredient in the Hamilton joint compound, and Plaintiffs have no evidence the joint compound contained talc. Defendant cites to UMF 7, 8, and 9. (Motion at p. 8.) UMF 7 cites to depositions of Plaintiffs stating they do not know the ingredients of the joint compound product. UMF 8 cites to evidence that a majority of joint compound products do not contain talc. UMF 9 cites to deposition transcripts where the witness testified that Pfizer supplied Hamilton talc for use in its products. Defendant contends these deposition transcripts are not admissible because Defendant did not attend the depositions. (Motion at p. 8.) The court cannot determine as a matter of law the deposition transcripts are not admissible simply because Pfizer did not attend. Under Evidence Code section 1292, former testimony may be admissible if a party in the prior action had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has. In any event, even if that deposition testimony is inadmissible, that does not mean that Plaintiffs cannot take the deposition of a Hamilton witness in this case and obtain evidence that the Hamilton joint compound product contained talc.
Defendant next argues Plaintiffs cannot show that the Hamilton joint compound product contained talc from Pfizer. Defendant again cites to UMF 9. (Motion at p. 8.) For the reasons stated above, this fact does not show Plaintiffs do not have and cannot obtain evidence that the Hamilton product contained Pfizer talc.
Defendant then argues that Plaintiffs have no evidence and cannot obtain evidence that the Hamilton joint compound Cornejo used contained Pfizer talc that contained asbestos. (Motion at pp. 11-12.) Defendant cites to UMF 12 (Motion at p. 11), which cites to Plaintiffs’ interrogatory responses. (UMF 12.) The interrogatory response states that Defendant’s talc “contained up to thirty percent tremolite asbestos.” (Compendium, Ex. E at p. 5.) However, as Defendant argues, that is not evidence that the particular products Cornejo used contained asbestos-containing talc. This lack of evidence in the interrogatory response is sufficient to shift the burden.
Three recent cases discussed evidence of the presence of asbestos in talc in the context of summary judgment. In Lyons v. Colgate-Palmolive Co. (2017) 16 Cal.App.5th 463, the court reversed a grant of summary judgment. The plaintiff used talcum powder regularly from the early 1950s to the early 1970s. (Id. at p. 465.) The plaintiff’s expert tested talc samples and confirmed the presence of asbestos, he and others had found asbestos in the talcum powder product, and he referred to numerous scientific papers and documents supporting his conclusions. (Id. at pp. 466-467.) The court concluded that the expert’s “evidence that talc from all three mines used in the manufacture of Cashmere Bouquet contained asbestos, repeatedly found in multiple tests and studies conducted before, during and after the 1950 to 1970 time period, coupled with plaintiff’s use of the product over those 20 years, particularly in the absence of evidence of any other source of the asbestos causing plaintiff’s mesothelioma, creates more than an unsupported possibility” that she was exposed to asbestos by her use of Cashmere Bouquet.” (Id. at p. 469.)
In Berg v. Colgate-Palmolive Co. (2019) 42 Cal.App.5th 630, the court affirmed a grant of summary judgment involving allegations of asbestos exposure from a shave talc product. The plaintiff had used four to six containers of the shave talc between 1959 and 1962. (Id. at p. 632.) The plaintiff’s expert stated the talc was sourced from mines contaminated with asbestos, FDA tests in 1972 and 1976 showed the shave talc product contained asbestos, and his tests of samples of the shave talc product revealed asbestos. (Id. at pp. 632-633.) The court held this fact pattern was different than the facts in Lyon because the plaintiff in Lyon used the product regularly over 20 years, there was no evidence of other sources of asbestos, and the plaintiff’s expert concluded all of the talcum product contained significant concentrations of asbestos. (Id. at p. 636.) In Berg, the plaintiff used the shave talc for a much shorter time periods, and the plaintiff’s expert’s declaration did not support a conclusion that all or most of the shave talc containers sold from 1959-1962 contained asbestos. (Ibid.) Rather, the expert’s testing occurred decades after the plaintiff’s use and there was no evidence that the tested samples were from 1959-1962. (Ibid.) The evidence fell “far short of establishing that any containers of Mennen Shave Talc sold between 1959 and 1971 or 1962 contained asbestos, much less that it is more likely than not that the containers [the plaintiff] used contained asbestos.” (Id. at pp. 636-637.)
In Strobel v. Johnson & Johnson (2021) 70 Cal.App.5th 796, the court reversed a grant of summary judgment in a case involving asbestos in baby powder. The plaintiff used the baby powder his entire life from 1951 until 2014, totally at least 338 containers. (Id. at p. 801.) He was not exposed to asbestos from any other source. (Ibid.) The plaintiff’s experts tested talc from the source mines and found asbestos. (Id. at p. 807.) The defense expert testified that the manufacturing process ensured asbestos-free talc. (Id. at p. 811.) The court concluded, “which of these competing views to accept must be decided at trial” because this case was more like Lyons than Berg. (Id. at p. 811, 812.) There was long term use of the baby powder by a plaintiff who was not exposed to any other source of asbestos, with expert testimony reporting positive test results from the mines used to source the talc. (Id. at p. 815.) The plaintiff’s expert, like the defense expert, relied on published materials from government agencies, professional standard-setting groups, academic articles, and historical testing. (Id. at pp. 822-823.) Those third-party documents qualified “as source material that may be reasonably relied upon by those in his field of expertise.” (Id. at p. 825.) It was reasonable to infer that asbestos was present throughout the entire exposure period. (Id. at p. 826.)
Here, this case is more like Berg than Lyons and Strobel. Plaintiffs state Cornejo used the Hamilton joint compound around the family homes in the mid-1970s. (Opposition at p. 1.) Plaintiffs cite to their own Separate Statement (“SS”) 1-5 in support of this statement, which cites to the deposition of Ruben Cornejo. Ruben testified his father used Hamilton joint compound to patch walls at the family house. (Bendon Decl., Ex. B at pp. 38, 56, 60.) There is no evidence of how many days the patching took place or how much of the Hamilton product was used. This is not like the situation in Lyon or Strobel where the plaintiff used large volumes of the product regularly or daily for decades. It is more like Berg where the plaintiff used the product occasionally. In addition, unlike in Lyon and Strobel, Plaintiffs did not present expert testimony about or testing of the asbestos content in the talc or in the particular product at issue. And, in this case, there are allegations of other sources of asbestos, such as from other products like paint and workplace exposure.
The same analysis holds for Plaintiffs’ allegations about exposure to Dunn-Edwards paint. Plaintiffs present evidence that Cornejo used Dunn-Edwards paint, that some Dunn-Edwards paint contained talc, and that Pfizer supplied the talc used by Dunn-Edwards from 1979 to 1989. (Opposition at pp. 2, 3; SS 7-11, 21, 27.) Plaintiffs cite to the deposition of Ruben Cornejo. (SS 8-11.) Ruben testified about painting walls at the family homes. (Bendon Decl., Ex. B at pp. 47, 49, 67, 78.) There is no evidence on the number of days spent painting or the volume of Dunn-Edwards paint used on the family homes, nor is there expert testimony about or testing of the talc sources or particular paint products at issue. There is no evidence Cornejo painted the family homes anything more than occasionally.
In Berg, the court explained, “It was not enough for plaintiffs to produce some evidence that [the plaintiff] was exposed to a product that possibly contained asbestos. ‘The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment,’ and ‘speculation’ that the product [the plaintiff] used might have contained asbestos is insufficient.” (Berg, supra, 42 Cal.App.5th at p. 637.) Here, as in Berg, at best the evidence Plaintiffs presented demonstrates only a possibility that Cornejo was exposed to asbestos through Defendant’s talc in Hamilton joint compound and Dunn-Edwards paint. (Ibid.) Because an inference that Cornejo was exposed to asbestos from Defendant’s talc would be only as likely or even less likely than the contrary inference, summary judgment in favor of Defendant is warranted. (Ibid.)
The motion for summary judgment is GRANTED. Defendant is to file a proposed judgment within five days.
The moving party is to give notice.
[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT
Plaintiffs
allege Ernest Cornejo was injured as a result of exposure to
asbestos-containing products, including from asbestos in talc supplied by
Defendant Vanderbilt Minerals, LLC (“Defendant”). On October 7, 2022, Defendant filed a motion
for summary judgment and summary adjudication on the grounds that Plaintiffs
cannot prove Defendant supplied any asbestos-containing products to which Cornejo
was exposed.
A. Objections
Plaintiffs’
Objections
Nos. 1-10,
9: The court did not rely on this
evidence.
Defendant’s
Objections
Nos.
1, 2, 3, 4: The court did not rely on
this evidence.
Nos.
5, 6, 7, 8: Overruled.
B. Summary Judgment
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 Plaintiffs’
discovery responses are factually devoid.
(Motion at p. 2.) Defendant
served an interrogatory asking Plaintiffs to state all facts supporting their
claims against Defendant. (Undisputed
Material Fact “UMF”) 4.) In response,
Plaintiffs stated Cornejo “may have worked with . . . asbestos-containing
caulking and/or mastic products manufactured by DAP” in doing home repairs, and
may have used asbestos-containing joint compounds and paints containing talc
from Defendant. (Weakley Decl., Ex. E at
p. 2.) The response did not identify
specific evidence supporting the possibility that Cornejo worked with those
products. Interrogatory No. 6 asked
Plaintiffs to identify the people with knowledge of the facts supporting their
claims. (Id., Ex. D at p.
3.) In response, Plaintiffs identified themselves
and unnamed others. (Id., Ex. E
at p. 25.)
Martha Cornejo has no
knowledge of the particular products from Defendant to which Cornejo was exposed
except that Cornejo had a DAP product in the garage. (Weakley Decl., Ex. G at pp. 43-44.) Ruben Cornejo testified Cornejo used DAP products
such as glue, tape, and silicone but did not know the specific DAP product
names. (Id., Ex. H at pp. 239-240.) Julio Cornejo testified he saw Cornejo using
DAP caulking. (Id., Ex. I at p. 60.) Rene Cornejo testified Cornejo used DAP
caulking. (Id., Ex. J at p. 157.)
Carlos Cornejo testified Cornejo used
DAP caulking. (Id., Ex. K at p.
140.) Martha Montanez has no knowledge
of the particular products from Defendant to which Cornejo was exposed. (Id., Ex. L at pp. 7-8.)
Plaintiffs’ discovery
responses do not identify evidence that Cornejo used DAP caulking that
contained talc that contained asbestos.
For example, the responses do not specify any evidence that during the
relevant time period, all DAP caulking products contained asbestos or that the
particular DAP caulking products Cornejo used contained asbestos. Therefore, Defendant has shifted the burden.
In opposition, Plaintiffs
argue Cornejo used DAP caulking, Defendant supplied talc to DAP, and Defendant’s
talc contained asbestos. (Motion at pp.
8-9, 10.) Plaintiffs refer to the
deposition of Ruben Cornejo, where he testified that Cornejo used DAP caulking,
in particular DAP DryDex and Kwik Seal. (Bendon
Decl., Ex. C at pp. 61, 77, 86, 237-238, 240.)
He said that otherwise he could not identify specific DAP products Cornejo
used. (Id. at p. 240.) Carlos Cornejo testified Cornejo used a DAP
caulking or sealing product. (Bendon
Decl., Ex. D at pp. 47, 61, 140, 142.)
Julio Cornejo testified Cornejo used DAP caulking. (Bendon Decl., Ex. E at pp. 60, 64-65, 66, 68.)
Plaintiff submitted evidence that in 1978
and in 1984 some talc from Vanderbilt tested positive for asbestos. (Bendon Decl., Ex. J, Ex. K.)
Except for identifying DAP
DryDex and Kwik Seal, Plaintiffs did not submit evidence that Cornejo used a
particular type of DAP product. Plaintiff
did not submit evidence that all DAP caulking products contained asbestos or that
DAP DryDex and Kwik Seal contained Defendant’s talc or asbestos in the relevant
years.
It is “not enough for
plaintiffs to produce some evidence that [the plaintiff] was exposed to a
product that possibly contained asbestos.
‘The evidence must be of sufficient quality to allow the trier of fact
to find the underlying fact in favor of the party opposing the motion for
summary judgment,’ and ‘speculation’ that the product [the plaintiff] used
might have contained asbestos is insufficient.” Berg v. Colgate-Palmolive Co. (2019) 42
Cal.App.5th 630, 637.) To find for
Plaintiffs, a jury would need to assume without an evidentiary basis that DAP DryDex
and Kwik Seal contained asbestos from Defendant’s talc or would need to
speculate that Cornejo used other unidentified DAP products that contained asbestos
from Defendant’s talc.
The
motion for summary judgment is GRANTED.
Defendant is to file a proposed judgment within five days.
The
moving party is to give notice.