Judge: Laura A. Seigle, Case: 20STCV20137, Date: 2023-02-24 Tentative Ruling

Case Number: 20STCV20137    Hearing Date: February 24, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

            Defendant Genuine Parts Company (“Defendant”) filed a motion for summary judgment and summary adjudication contending Plaintiffs Linnea Freeman, Dennea Freeman, and Katti Freeman cannot prove exposure to asbestos from Defendant’s products. 

I.          Objections

            A.        Defendant’s Objections

Nos. 4-6, 18-24:  Overruled.

No. 7:  Most of this is overruled.  See below.

No. 17:  The court did not rely on this.

II.        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 argues that the only product identification witnesses testified they remembered Dennis Freeman using Bendix and Raybestos brand brakes, and Defendant did not make those brands of brakes.  (Motion at pp. 9-10.)  Plaintiffs do not dispute that Defendant did not make Bendix and Raybestos brakes.  Instead, Plaintiffs argue there is evidence Dennis Freeman was exposed to asbestos in Rayloc brakes.  Plaintiffs cite Dennea Freeman’s deposition where she testified she remembered Bendix and Raybestos brakes, there were other brakes but she was blanking out, if she saw pictures or heard a word or two that might refresh her recollection, and the name Rayloc sounded familiar.  (Index., Ex. 6 at pp. 49-52.)  She testified she knew the brands of brakes her father worked with because she held the boxes for him and went to the store with him.  (Id. at p. 53.) 

Defendant contends Dennea Freeman’s testimony is inadmissible because the question was leading.  However, the witness said that there were other brake brands but she was blanking out, she had not exhausted her memory, and she was trying not to cry as she remembered working with her dad.  (Index., Ex. 6 at p. 51.)  She testified it would help to refresh her memory if she saw a picture or heard a word or two.  (Id. at p. 52.) 

Defendant did not show Plaintiffs are unable to obtain evidence of exposure.  Dennea Freeman testified pictures would refresh her memory because she held the boxes and she remembered a lot of the boxes.  (Index., Ex. 6 at p. 52.)  Thus, even if the question asking her if Rayloc was familiar is inadmissible as leading, that does not mean Dennea Freeman would not remember Rayloc brakes if she was shown a picture of the boxes.

The motion for summary judgment is denied.

III.       Summary Adjudication

A.        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 p. 14.)    

            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.  Plaintiffs state in their opposition that Dennis Freeman was exposed to Defendant’s products when he was working on his car.  (Opposition at p. 1.)  Plaintiffs’ discovery responses did not identify any specific evidence supporting this cause of action or name any witnesses with knowledge supporting this cause of action.  (Undisputed Material Fact (“UMF”) 33, 34, 35.)  Plaintiffs do not address this cause of action in their opposition.

Here, Dennis Freeman was the ultimate purchaser of the brake products that he purchased to use on the family cars.  Therefore, Plaintiffs need to allege and have evidence of a representation to him and reliance by him.  They failed to allege or submit evidence of any such representation and reliance.

            The motion for summary adjudication is granted.

B.        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 Defendant made no statement to Dennis Freeman.  (Motion at p. 16.)  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 Defendant concealed its knowledge about the dangers of asbestos in its brakes.  (Opposition at p. 10.)  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’ opposition does not address this cause of action, and Plaintiffs cited no evidence of any direct dealings with Defendant.  Therefore the motion for summary adjudication is granted as to the fourth cause of action.

C.        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 Plaintiffs’ discovery responses.  (UMF 43, 44.)  In response to an interrogatory asking for all facts supporting the claim for punitive damages, Plaintiffs incorporated their answer to Interrogatory No. 1.  (Index, Ex. 3 at p. 11.)  The response to Interrogatory No. 1 stated Dennis Freeman was exposed to asbestos while doing brake jobs on the family cars, he primarily used Bendix brakes, and he occasionally bought brakes from a Napa Auto Parts.  (Id. at pp. 4.)  The response does not contain any specific evidence of Defendant’s knowledge about the danger of asbestos in Rayloc brakes.  Plaintiffs’ responses to document requests are similarly vague.  (Index, Ex. 5 at pp. 8-9.)  Therefore, the burden shifts to Plaintiffs.

            In opposition, Plaintiffs cite to Exhibits 4, 5, 6, and 7 as evidence Defendant knew about the dangers of its asbestos-containing brakes but did not warn customers.  (Opposition at p. 10.)  Plaintiffs cite to Exhibit 4 at page 164 (Opposition at p. 10) but they did not include page 164 in Exhibit 4.  Exhibit 5 is a deposition of an employee of Rayloc stating he became aware of the dangers of asbestos between 1965 and 1970 and there was a concern through word of mouth at the company.  (Cook Decl., Ex. 5 at pp. 97-98, 101.)  That does not show knowledge at a corporate decision-making level of the danger to end users of asbestos in brakes.  Exhibit 6 is a letter from an insurance company to a manager of Rayloc recommending chest x-rays and shields for employees.  Exhibit 7 is a letter from someone at Rayloc talking about a health hazard to employees, customers and users caused by asbestos.  Defendant states that this evidence does not show knowledge that asbestos in brakes (as opposed to in the factory) was hazardous.  (Reply at p. 12.)  However, Exhibit 7 discusses the hazard to end users.  Also, Defendant received warnings from the manufacturer, but did not pass those warnings on to the end users.  (Opposition at p. 10 and evidence cited there.)

            Plaintiffs has supplied sufficient evidence to show there are disputed issue about Defendant’s knowledge and failure to warn customers, even as it was receiving warnings from manufacturers and receiving recommendations that safety measures be taken because of asbestos fibers from grinding brakes.

            The motion for summary judgment is DENIED.  The motion for summary adjudication is GRANTED as to the third cause of action and fourth cause of action, and is DENIED as to the claim for punitive damages.

            The moving party is to give notice.