Judge: Laura A. Seigle, Case: 20STCV15855, Date: 2023-07-11 Tentative Ruling

Case Number: 20STCV15855    Hearing Date: July 11, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiffs Jerry Gonzales, individually and as successor-in-interest to Delia Moreno Gonzales, and Dorothy Sylva (“Plaintiffs”) filed this action alleging that Delia Moreno developed mesothelioma as a result of exposure to asbestos.  On April 24, 2023, Defendant Hopeman Brothers, Inc. (“Defendant”) filed a motion for summary judgment or summary adjudication in the alternative.  Plaintiffs did not file an opposition.

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 do not have and cannot obtain evidence that Delia Moreno, her former husband, or her father were exposed to asbestos from Defendant’s activity and therefore, cannot establish elements of exposure and causation.  (Motion at pp. 5-7.)

Defendant cites Plaintiffs’ responses to the interrogatories asking for all facts, documents, and witnesses with knowledge of facts to support Plaintiffs’ claims against Defendant.  (Motion at p. 5; Undisputed Material Fact (“UMF”) 16.)  Plaintiffs responded that Delia Moreno’s father and former husband worked at Los Angeles-area shipyards and were exposed to asbestos through Marinite, Marine veneer, Micarta, asbestos paper, gaskets and pipe covering insulation which were installed by Defendant on ships.  (UMF 3, 11.)  Plaintiffs also stated Moreno suffered secondary exposure to asbestos via her former husband from 1960 to 1972, and from her father’s work clothing, skin, and hair, when her father’s work clothes were laundered in the same laundry space.  (Defendant’s Evidence, Ex. F at p. 4.)  But the responses do not identify evidence supporting the allegations.

Also, Plaintiffs identified themselves, co-workers, superiors of Moreno’s father and former husband as persons with knowledge, as well as former and present corporate directors, officers, and employees of Defendant.  (UMF 23, 24.)  Plaintiffs did not provide any names or contact information of these individuals.  (UMF 23, 25.)  

In addition, Defendant propounded requests for production of documents, asking Plaintiffs to produce all documents to support their claims against Defendant.  (Defendant’s Evidence, Ex. G at p. 4.)  Plaintiffs did not produce documents but referred to a generic laundry list of documents, such as Plaintiffs’ records and responses to interrogatories, Plaintiffs’ depositions, Defendant’s records, and other documents.  (Defendant’s Evidence, Ex. H at pp. 1-4.)

These discovery responses with their laundry list of unnamed witnesses and documents, lack of specific evidence, and unsupported allegations are factually devoid and sufficient to shift the burden to Plaintiffs.  Because Plaintiffs did not file an opposition, they did not show the existence of a disputed fact.

Therefore, the motion for summary judgment is GRANTED.  Defendant is to file a proposed judgment within five days.

The moving party is to give notice.