Judge: Laura A. Seigle, Case: 20STCV38250, Date: 2022-09-22 Tentative Ruling

Case Number: 20STCV38250    Hearing Date: September 22, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

            On October 6, 2020, Plaintiffs Linda Phipps, Raymond Phipps, Sara Phipps, and Steven Phipps filed a complaint alleging a first cause of action for negligence and a second cause of action for strict liability based on the death of William Phipps due to asbestos exposure.

            Defendant Copeland Corporation LLC filed a motion for summary adjudication “of specific claims for recovery.”  (Notice of Motion at p. 2.)  Defendant seeks adjudication of “the survivorship action (including medical expenses and loss of income by the estate of Mr. William Phipps), the wrongful death action loss of consortium claim by Mrs. Linda Phipps, wrongful death medical expenses, and loss of income claims by all remaining Plaintiffs.”  (Ibid.)

            This motion for summary adjudication is defective in several ways.  First, “[i]f summary adjudication is sought . . . the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”  (Cal. Rule of Ct., rule 3.1350(b).)  Defendant’s notice of motion does not identify the specific causes of action to be adjudicated.  It refers to “survivorship action,” “wrongful death action loss of consortium claim,” and “loss of income claims.”  It does not identify either the first cause of action for negligence or the second cause of action for strict liability.  Therefore, the notice of motion is unclear which of these two causes of action are to be summarily adjudicated.

            Second, Defendant’s separate statement of undisputed material facts does not repeat verbatim the specific causes of action or claims for damages to be adjudicated.  Rather it merely lists a set of facts.

            Third, Defendant moves for summary adjudication of certain types of damages under Code of Civil Procedure section 437c, subdivision (f)(1).  However, that subdivision “does not permit summary adjudication of a single item of compensatory damage which does not dispose of an entire cause of action.”  (DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 422.)  Pursuant to Code of Civil Procedure section 437c, subdivision (t), “a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty,” if the parties stipulate that the issue may be so adjudicated.  Here, Defendant asks the court to determine that certain types of damages are not available, but Defendant does not prove that adjudicating those types of damages will completely dispose of one of the two causes of action.  To the contrary, Defendant acknowledges that potential damages will remain to be decided, such as “funeral and loss of consortium damages of the children.”  (Motion at p. 5.)  Because this motion does not fully dispose of a cause of action, the court cannot decide a claim of damages without a stipulation of the parties.

            The motion is DENIED.

            The remaining categories of damages available in this case that are not barred by the award in the personal injury case will determine the jury instructions to be given.  Because the parties disagree about the types of damages available in this case, the Court orders the parties to brief the issue.  By September 29, 2022, each side is to file a brief of up to ten pages identifying for each plaintiff (1) the types of damages sought by the plaintiff, (2) legal authority establishing those types of damages are available for that plaintiff, and (3) legal authority showing that type of damages is not precluded by the decision in the personal injury case.  By October 6, 2022, each side may file a responsive brief of no more than five pages.

            The moving party is to give notice.