Judge Laura A. Seigle, Case 20STCV20137 2022-10-25 Tentative Ruling

Judge: Laura A. Seigle, Case: 20STCV20137, Date: 2022-10-25 Tentative Ruling

Case Number: 20STCV20137 Hearing Date: October 25, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiffs Dennis Freeman and Linnea Freeman allege Dennis Freeman (“Freeman”) was injured as a result of exposure to asbestos because Defendant Saint-Gobain Abrasives, Inc.’s respirator failed to protect Freeman from asbestos fibers. Defendant filed this motion for summary judgment contending Plaintiffs do not possess and cannot reasonably obtain evidence to show Freeman used a respirator from Defendant, the respirator was defective, and Freeman was exposed to asbestos while using a respirator from Defendant.

I. 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 points to Plaintiffs’ discovery responses and the depositions of Neal Norton who worked with Freeman and Dennea Freeman, Freeman’s wife. Special Interrogatory Nos. 2 and 3 asked Plaintiffs to describe the respirators Freeman wore and to identify all evidence supporting the claim those respirators were from Defendant. (Giaquinto Decl., Ex. G at p. 5.) In response, Plaintiffs referred to their answer to Special Interrogatory No. 1. (Id. at pp. 5-6.) The response to Special Interrogatory No. 1 stated Freeman “wore various masks, including Norton masks, for which Defendant is responsible.” (Id. at p. 3.) (Apparently Defendant was formerly known as Norton.) However, the response does not describe the respirators or give any evidence supporting the claim the masks were Norton masks. However, Neal Norton testified he worked with Freeman and that they were given respirators from Norton. (Giaquinto Decl., Ex. C at pp. 592, 625.) Therefore there is evidence that Freeman used respirators from Defendant.

Defendant also argues Plaintiffs cannot show Freeman used a defective respirator from Defendant. (Motion at pp. 8-9.) Defendant points to Plaintiffs’ responses to Special Interrogatory No. 3 and Document Request No. 10. Special Interrogatory No. 3 asked Plaintiffs to identify all evidence supporting the claim that the respirator was from Defendant. (Giaquinto Decl., Ex. G at p. 5.) It did not ask for evidence that a respirator was defective. Document Request No. 10 asked for all documents regarding the size, type and model of any product from Defendant that caused Freeman to be exposed to asbestos. (Id., Ex. H at p. 5.) It did not ask for documents showing defects in the respirators. Because the discovery did not ask about defects in the respirators, the fact that the answers do not reveal anything about the existence of evidence of defects does not necessarily mean such evidence does not exist and Plaintiffs cannot obtain it.

Defendant argues that because Neal Norton and Freeman did not complain about the respirators, they must not have been defective. (Motion at p. 9.) Defendant does not cite law that lack of complaints about a product requires the inference that a product is not defective. Defendant argues the masks were approved by government agencies and therefore could not have been defective. (Ibid.) Again, Defendant does not cite law that compliance with government standards is a complete defense to a product defect claim.

Next Defendant argues that because Freeman’s employer installed new insulation that did not contain asbestos, there is no evidence that Freeman was exposed to asbestos. (Motion at p. 11.) However, the cited evidence only refers to the period from 1981 to 1984 at one employer. (Undisputed Material Fact 12.) Freeman worked much longer than those three to four years. (Giaquinto Decl., Ex. A at p. 8; Undisputed Material Facts 1, 2.) Defendant did not show Plaintiffs have no evidence Freeman was exposed to asbestos in other years.

In sum, Defendant failed to shift the burden.

II. Summary Adjudication

Defendant also moves for summary adjudication on the claim for punitive damages. 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.)

Defendant argues Plaintiffs’ discovery responses are factually-void. Special Interrogatory No. 9 asked for all evidence supporting the claim for punitive damages. (Giaquinto Decl., Ex. G at p. 8.) Plaintiffs responded by referring to the response to Special Interrogatory No. 1. That response does not contain any facts about malice, fraud, or oppression. (Id. at pp. 3-4.) Thus, Defendant shifted the burden.

Plaintiffs argue the interrogatory response is not factually void because it states Defendant knew asbestos was dangerous since the 1972 OSHA regulations. (Opposition at p. 10.) First, that is a conclusion, not evidence. And second, knowledge alone does not prove malice, fraud, or oppression.

Shortly before the hearing on this motion, Plaintiffs asked for a continuance so they could submit additional evidence from recent depositions. The court granted the continuance. Plaintiffs filed a supplemental opposition, supplemental separate statement, and supplemental evidence. Plaintiffs argue the deposition of Lynn Feiner shows Defendant “deliberately and consciously chose not to warn end uses of asbestos hazards.” (Supp. Opposition at p. 4.)

The submitted evidence does not support that conclusion. Feiner testified that Defendant “add warnings to our packaging, saying that is respirator should not be used for asbestos” and “offered and provided information on more protective devices, such as a powered air purifying respirator.” (Supp. Cook Decl., Ex. 2 at p. 131.) Defendant argues Defendant could have included “a removable tag containing a warning attached to the mask itself” but chose not to. (Supp. Opposition at p. 5.) Again that is not what Plaintiffs’ evidence says. The witness testified she did not know if there was a tag on the respirator or not. (Supp. Cook Decl., Ex. 2 at p. 136.) Plaintiffs’ evidence does not show Defendant chose not to include a tag. Rather at the time someone at Defendant proposed a warning tag, Defendant “was proactive” and “started to warn not to use this type of respirator for protection from asbestos but rather to use a respirator that provided greater protection.” (Id. at pp. 137-138.) Thus, far from ignoring the memo, Defendant responded with warnings.

In sum this is not a case where a reasonable jury could find Plaintiffs’ evidence to be clear and convincing proof of malice, fraud or oppression by Defendant in failing to warn respirator users of the dangers of asbestos exposure.

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

The motion for summary judgment is DENIED.

The moving party is to give notice.