Judge: Laura A. Seigle, Case: 20STCV20137, Date: 2023-03-03 Tentative Ruling

Case Number: 20STCV20137    Hearing Date: March 3, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Plaintiffs Linnea Freeman, Dennea Freeman, and Katti Freeman allege Dennis Freeman was injured by products from Kaiser Gypsum Company, Inc. and Hanson Permanent Cement, Inc.  (“Defendants”).  Defendants filed this motion for summary adjudication of the third cause of action contending Plaintiffs have no evidence of any misrepresentation or fraudulent concealment to support the third cause of action.

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.)

The third cause of action is 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.)

Defendants argue there is no evidence Dennis Freeman heard or saw a false statement from Defendants upon which he relied.  (Motion at pp. 8-9.)  Under section 402-B, 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.  Plaintiffs state in their opposition that Dennis Freeman was exposed to Defendants’ products when he was working on construction jobs.  (Opposition at p. 2.)  Therefore, to the extent his employer provided the products for him to use when he was employed on construction jobs, this is a situation where the ultimate purchaser of the product is not the plaintiff.  Because the third cause of action does not require evidence that Dennis Freemen, as opposed to the ultimate purchaser of the masks, knew about or relied on any representation by Defendants, Defendants’ argument that Dennis Freeman did not rely on any statement of Defendants fails. 

Defendants also argue that previously they were debtors in a bankruptcy proceeding, and the bankruptcy stay was lifted only “for the purpose of pursuing claims that are covered by . . . the Debtor’s available insurance.”  (Motion at p. 11; Robles Decl., Ex. L at p. 3.)  Defendants argue that because fraud claims are not covered by insurance, the third cause of action remains subject to the bankruptcy stay.  (Motion at pp. 12-13.)  However, a cause of action under Restatement of Torts Section 402-B does not require willfulness.  A defendant can be subject to the cause of action for a misrepresentation “even though . . . it is not made fraudulently or negligently.”  (Westlye, supra, 17 Cal.App.4th at p. 1750; see also Hauter, supra, 14 Cal.3d at p. 114 [rule applies “even though the misrepresentation is an innocent one, and not made fraudulently or negligently”].)  Therefore, Defendants did not show that the third cause of action is covered by the bankruptcy stay.

The motion for summary adjudication of the third cause of action is DENIED.

The moving party is to give notice.