Judge: Laura A. Seigle, Case: 20STCV20137, Date: 2023-02-17 Tentative Ruling
Case Number: 20STCV20137 Hearing Date: February 17, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION
Defendant
Amcord, Inc. (“Defendant”) filed a motion for summary adjudication of Plaintiffs
Linnea Freeman, Dennea Freeman, and Katti Freeman’s third cause of action for
false representation, fourth cause of action for intentional tort, and claim
for punitive damages.
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.)
I. Objections
A. Defendant’s Objections
Nos. 1: Overruled.
Nos. 2-7: There are no objections.
II. Third
Cause of Action – False Representation
Defendant
argues Plaintiffs cannot prove the false representation cause of action because
they have no evidence of any representation by Defendant to Plaintiffs or
Plaintiffs’ reliance on any such representation. (Motion at pp. 6-7.)
Plaintiffs
allege a cause of action for “False Representation Under Restatement of Torts
Section 402-B.” (FAC at p. 14.) Section 402-B establishes “liability for
injuries caused by justifiable reliance on false advertising.” (Westlye v. Look Sports, Inc. (1993)
17 Cal.App.4th 1715, 1750.) Under this
section “ ‘[o]ne engaged in the business of selling chattels who, by
advertising, labels, or otherwise, makes to the public a misrepresentation of a
material fact concerning the character or quality of a chattel sold by him is
subject to liability for physical harm to a consumer of the chattel caused by
justifiable reliance upon the misrepresentation, even though [¶] (a) it is not
made fraudulently or negligently, and [¶] (b) the consumer has not bought the
chattel from or entered into any contractual relation with the seller.’ [Citation.]”
(Id. at pp. 1750-1751.)
“The rule ‘is one of strict liability for physical harm to the consumer,
resulting from a misrepresentation of the character or quality of the chattel
sold, even though the misrepresentation is an innocent one, and not made
fraudulently or negligently.’
[Citation.]” (Hauter v.
Zogarts (1975) 14 Cal.3d 104, 114.)
Under
section 402-B, the plaintiff does not need to have relied on a
misrepresentation. The “‘reliance need
not necessarily be that of the consumer who is injured. It may be that of the ultimate purchaser of
the chattel . . . who because of such reliance passes it on to the consumer who
is in fact injured, but is ignorant of the misrepresentation.’ [Citation.]”
(Westlye, supra, 17 Cal.App.4th at p. 1751.)
The complaint is
extremely vague about how Dennis Freeman was exposed to asbestos. The most detail is provided in Exhibit A,
where it appears Plaintiffs allege he was exposed to asbestos at his work and
at home while working on his car. According
to Defendant, Plaintiffs contend Dennis Freeman “was exposed to asbestos from
Amcord products . . . while working as a union sheetrock hanger.” (Motion at p. 3; see also Opposition at p. 1.) Therefore, this is a situation where Dennis
Freeman was not the ultimate purchaser of Defendant’s product. Because this cause of action does not require
evidence that Dennis Freeman, as opposed to the ultimate purchaser, knew about
or relied on any representation by Defendant, this argument fails.
The
motion for summary judgment is denied.
III. Fourth
Cause of Action – Intentional Tort
The fourth cause of
action alleges torts under Civil Code sections 1708, 1709, and 1710. Section 1708 states generally that a person
is to abstain from injuring another person.
That does not create a cause of action.
Sections 1709 and 1710 state that a person may be liable for damage
caused by willful deceit, defined as including “[t]he suggestion, as a fact, of
that which is not true, by one who does not believe it to be true,” [t]he
assertion, as a fact, of that which is not true, by one who has no reasonable
ground for believing it to be true,” “[t]he suppression of a fact, by one who
is bound to disclose it, or who give information of other facts which are
likely to mislead for want of communication of that fact,” and “[a] promise,
made without any intention of performing it.”
Defendant
argues Plaintiffs cannot prove the intentional tort cause of action because no requisite
relationship existed between Dennis Freeman and Defendant and Defendant made no
statement to Dennis Freeman. (Motion at
p. 8.) As an initial matter, it is
difficult to determine the basis for the fourth cause of action – do Plaintiffs
allege a false statement or concealment or a promise made without any intention
to perform – because the complaint is very vague and does not allege any
specific facts about Defendant’s alleged affirmative fraud, concealment, for false
promise. According to Plaintiffs’
opposition, Plaintiffs contend that Defendant concealed its knowledge about the
danger of its Riverside Gun Plastic Cement.
(Opposition at pp. 3, 7.) Thus,
it appears Plaintiffs are attempting to allege a fraudulent concealment cause
of action.
“
‘[T]he elements of a cause of action for fraud based on concealment are “ ‘(1)
the defendant must have concealed or suppressed a material fact, (2) the
defendant must have been under a duty to disclose the fact to the plaintiff,
(3) the defendant must have intentionally concealed or suppressed the fact with
the intent to defraud the plaintiff, (4) the plaintiff must have been unaware
of the fact and would not have acted as he did if he had known of the concealed
or suppressed fact, and (5) as a result of the concealment or suppression of
the fact, the plaintiff must have sustained damage.’ ” [Citation.]’ ” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 310-311.) When a
fiduciary duty does not exist, a duty to disclose arises only “when the
defendant had exclusive knowledge of material facts not known to the
plaintiff,” or “when the defendant actively conceals a material fact from the
plaintiff,” or “when the defendant makes partial representations but also
suppresses some material facts.” (Id.
at p. 311.) This type of relationship “
‘can only come into being as a result of some sort of transaction between the
parties’ ” and “must necessarily arise from direct dealings between the
plaintiff and the defendant; it cannot arise between the defendant and the
public at large.” (Ibid.)
Plaintiffs
do not address Bigler and do not allege any direct dealings between
Plaintiffs and/or Dennis Freeman and Defendant.
Therefore the motion for summary adjudication is granted as to the
fourth cause of action.
IV. Punitive
Damages
Defendant
contends Plaintiffs cannot prove Defendant acted with oppression, malice or
fraud. 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.)
For a corporate
defendant, the oppression, fraud or malice “must be on the part of an officer,
director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).) That requirement can be satisfied “ ‘if the
evidence permits a clear and convincing inference that within the corporate
hierarchy authorized persons acted despicably in “willful and conscious
disregard of the rights or safety of others.” ’
[Citation.]” (Morgan v. J-M
Manufacturing Company, Inc. (2021) 60 Cal.App.5th 1078, 1090.) A plaintiff also “can satisfy the ‘managing
agent’ requirement ‘through evidence showing the information in the possession
of the corporation and the structure of management decisionmaking that permits
an inference that the information in fact moved upward to a point where
corporate policy was formulated.’
[Citation.]” (Id. at p.
1091.)
“ ‘[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, 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
cites to Plaintiffs’ discovery responses.
(Undisputed Material Fact (“UMF”) 21, 22.) In response to an interrogatory asking for all
facts supporting the claim for punitive damages, Plaintiffs incorporated their
answer to Interrogatory No. 1. (UMF 22.) The response to Interrogatory No. 1 stated Dennis
Freeman was exposed to asbestos while working with gun plastic beginning in
1972, Defendant was aware of the health hazards of asbestos by 1971, an
employee of Defendant told a vice president of Defendant that Defendant should
start finding a substitute for asbestos in its Gun Plastic Cement, and Amcord
did not put a warning on the product until 1974. (Index, Ex. C at pp. 2, 4.) This answer is not factually-devoid, and
therefore Defendant did not shift the burden.
The
motion for summary adjudication is DENIED as to the third cause of action and
punitive damages and GRANTED as to the fourth cause of action.
The
moving party is to give notice.
[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT
Plaintiffs
Linnea Freeman, Dennea Freeman, and Katti Freeman allege Dennis Freeman was
injured because Defendant Mine Safety Appliances Company, LLC’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.
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.)
A. Defective Masks
Defendant contends Plaintiffs’
discovery responses are factually devoid.
(Motion at p. 8.) Defendant
propounded interrogatories asking for all facts, documents, and witnesses
supporting their claims that Freeman used Defendant’s respirators. (Undisputed Material Fact (“UMF”) 6.) Plaintiffs responded that Freeman work
Defendant’s brand of masks. (Compendium,
Ex. I at p. 3.) The response does not
describe the masks or give any evidence supporting the claim the masks were from
Defendant. However, Neal Norton
testified he worked with Freeman and their employer gave them respirators from
Defendant. (Compendium, Ex. X [the
exhibit has no page numbers]; Cook Decl., Ex. 1 at pp. 59, 91-92, 428.) Therefore there is evidence that Freeman used
respirators from Defendant. Defendant
contends other depositions dispute Norton’s testimony and establish that Defendant’s
respirators were not used at Freeman’s employer. (Motion at pp. 9-10.) At most, those other depositions from other
cases establish the existence of a disputed issue.
Defendant also argues Plaintiffs
cannot show Freeman used a defective respirator from Defendant because Plaintiffs
cannot identity the specific models of masks Freeman used and because a defense
experts establishes Defendant’s masks were not defective. (Motion at pp. 12, 20-21.) Defendant cites to Plaintiffs’ interrogatory
responses. (Motion at pp. 20-21; UMF
6-8.) Plaintiffs’ response states Defendant’s
“masks are defectively designed in that the masks did not eliminate respirable
fibers when used or missed in a way that was reasonably foreseeable.” (Compendium, Ex. I at p. 4.) This is conclusory. The response does not cite any specific
evidence of a defect. Defendant thus
shifted the burden.
In opposition, Plaintiffs
assert “All of these masks allowed asbestos contamination,” citing Plaintiffs’
Undisputed Material Fact (“PUMF”) 45. (
Motion at p. 7.) PUMF 45 cites to
Norton’s deposition testimony at pages 53-55. At page 53, Norton testified it was “nearly
impossible to put a respirator on your face and take it off without getting
exposure.” (Cook Decl., Ex. 1 at p.
53.) That testimony does not establish
that Norton was testifying about Defendant’s masks or about a defect in a mask,
as opposed to an improper process for putting on and removing masks while the
user was around asbestos. At page 54-55,
Norton testified there could be a perfect fit, but that sometimes people’s
faces change so that some masks fit better than others, and that when he took
off his mask he would have debris under it.
(Id. at pp. 54-55.) Again,
this is not testimony establishing that Defendant’s masks (as opposed to other
types of masks) were defective or that the mask itself was defective as opposed
to workers not selecting a properly fitted mask. Plaintiffs have not shown a disputed issue of
material fact regarding defects in Defendant’s mask.
B. Failure to Warn
Defendant argues it had
no duty to warn about dangers from another manufacturer’s asbestos-containing
product. (Motion at p.22.) “California law does not impose a duty to
warn about dangers arising entirely from another manufacture’s product, even if
it is foreseeable that the products will be used together.” (O’Neil v. Crane Co. (2012) 53 Cal.4th
335, 361.) Plaintiffs cite no law to the
contrary. Pursuant to O’Neil,
Defendant had no duty to warn about dangers from asbestos-containing products.
C. Fraud and Fraudulent Concealment Causes of Action
Because Plaintiffs have
not shown the existence of a disputed issue of material fact concerning defects
or a duty to warn, they cannot show Defendant made false statements about the
masks or concealed information about the masks.
Plaintiffs do not address these causes of action at all.
The motion for summary
judgment is GRANTED. Defendant is to
file a proposed judgment within five days.
The moving party is to
give notice.