Judge: Laura A. Seigle, Case: 20STCV17825, Date: 2023-02-09 Tentative Ruling

Case Number: 20STCV17825    Hearing Date: February 9, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

            On August 2, 2022, Defendant Whittaker, Clark & Daniels, Inc. filed a motion for summary judgment arguing Plaintiff Berenice Sandoval cannot show she was exposed to asbestos-containing talc from Defendant.  On October 25, 2022, Plaintiff filed an opposition merely stating she needed additional discovery.  The hearing on the motion was continued several times so she could take discovery.  After those continuances, Plaintiff did not file a substantive 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 served interrogatories asking Plaintiff to state all facts supporting her claim that Defendant exposed her to asbestos, to identify witnesses with knowledge of those facts, and to identify documents supporting the claim.  (Undisputed Material Fact (“UMF”) 5, 8, 9, 11.)  Plaintiff’s responses contained conclusory allegations without evidence, no names of witnesses, and no specific documents containing evidence of exposure from Defendant.  (UMF 6, 8, 9, 10, 12, 13.)  In her deposition, Plaintiff testified she does not know who supplied the talc she used in her ceramics classes, and she has no knowledge any talc came from Defendant.  (UMF 27, 28, 31.)   Likewise the person responsible for ordering materials for the ceramics classes did not know the source of the talc.  (UMF 43.)

Defendant has shown that Plaintiff does not have and cannot obtain evidence of exposure from Defendant’s products.  The burden shifts to Plaintiff, but because Plaintiff did not file an opposition, Plaintiff failed to show a disputed issue of fact.

The motion for summary judgment is GRANTED.  Defendant is to file a proposed judgment within five days.

The moving party is to give notice.