Judge: Laura A. Seigle, Case: 20STCV17825, Date: 2023-01-12 Tentative Ruling

Case Number: 20STCV17825    Hearing Date: January 12, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

            Defendant Laguna Clay Co. moves for summary adjudication of Plaintiff Berenice Sandoval’s punitive damages claim.  Defendant argues Plaintiff does not have clear and convincing evidence of oppression, fraud or malice by an officer, director, or managing agent of Defendant.  

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 a 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 points to Plaintiff’s responses to special interrogatories, which asked for all facts and evidence supporting Plaintiff’s claims against Defendant.  (Undisputed Material Fact “UMF” 7, 8.)  In response, Plaintiff stated she was exposed to asbestos while doing ceramics in college, Defendant knew or should have known its asbestos-containing products were dangerous, and Defendant failed to label its products.  (Index, Ex. E at pp. 8,9.)  The responses do not identify evidence or name any witnesses with knowledge of facts supporting the claim for punitive damages.  Instead, the responses are conclusory and restate the allegations of the complaint without any specific evidence concerning Defendant’s malice, fraud, or oppression.  Therefore, the burden is shifted.

In opposition, Plaintiff argues that the owner and president of Defendant testified he has always known there is a health hazard associated with asbestos.  (Opposition at p. 4.)  However, Plaintiff did not show Defendant knew there was asbestos in the talc it was selling or that exposure to the asbestos in talc would cause a high probability of injury.  (Eyerly Decl., Ex. 3 at pp. 80-81.)  Plaintiff did not submit clear and convincing evidence that Defendant knew its talc products contained levels of asbestos likely to pose a danger to users and yet failed to warn users.

The motion for summary adjudication of the punitive damages claim is GRANTED.

The moving party is to give notice.