Judge Laura A. Seigle, Case 20STCV41475 2022-07-29 Tentative Ruling

Judge: Laura A. Seigle, Case: 20STCV41475, Date: 2022-07-29 Tentative Ruling

Case Number: 20STCV41475 Hearing Date: July 29, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Defendant Merced Truck & Trailer, Inc. (“Defendant”) moves for summary judgment on the ground that Plaintiffs are not able to prove Defendant’s product exposed Sylvia Solis (“Solis”) to asbestos. Defendant also moves for summary judgment on the third cause of action for false representation because there is no evidence Defendant made a false or misleading statement to Solis, the fourth cause of action for intentional tort because there is no evidence Defendant and Solis had any relationship giving rise to a duty to disclose facts, and the claim for punitive damages.

A. Objections

1. Plaintiffs’ Objections

Nos. 1-3: Sustained.

No. 4: Sustained.

No. 5: Overruled

2. Defendant’s Objections

Nos. 1-8: Overruled.

The objection to the request for judicial notice is overruled. The Court takes judicial notice of the OSHA regulations.

B. Summary Judgment

Defendant argues that it never sold asbestos-containing products, and that Plaintiffs have no evidence to prove Solis was exposed to asbestos via a product from Defendant. (Motion at p. 9.)

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 contends there is no evidence it ever sold asbestos-containing products at any time. (Motion at p. 16.) Although Leon Solis, Sr. testified about buying products from Defendant in the 1970s-1990s, Defendant did not register with the Secretary of State until September 10, 1992, and Solis Transport did not open an account with Defendant until 1998, by which time asbestos brake and clutch products were no longer being sold. (Ibid.) In support of this argument, Defendant cites a printout from the Secretary of State website and the declaration of its president Don Bonander. Bonander states Defendant first opened for business in 1992 and he has owned and operated the business for 30 years, which is consistent with the Secretary of State printout. (Baravarian Decl., Ex. K at ¶¶ 5, 6.) This is sufficient evidence to establish Defendant opened in 1992.

To support the assertion that Defendant never sold any asbestos-containing parts, Defendant cites Bonander stating, based on his review of corporate documents and discussions with suppliers, he believes Defendant never sold asbestos-containing products. (Moton at p. 17; Baravarian Decl., Ex. K at ¶ 6.) To the extent his belief is based on statements from suppliers that their products did not contain asbestos, those statements are hearsay. To the extent it is based on his review of unidentified corporate documents, his statement is conclusory. Defendant also cites interrogatory responses from other defendants stating they discontinued the sale of asbestos-containing products in 1986. (Motion at p. 17.) However, those interrogatory responses may be used only against the responding party. (Code Civ. Proc., § 2030.410.) Thus, Defendant did not advance admissible evidence satisfying its prima facie burden.

In addition, Defendant contends Plaintiffs have no evidence of exposure by way of Defendant. (Motion at p. 18.) Defendant points to Undisputed Material Fact (“UMF”) 6. (Motion at p. 18.) That UMF states Plaintiffs did not produce or identify any document establishing exposure from Defendant’s products. (UMF 6). The motion also refers to Plaintiffs’ responses to interrogatories. (Motion at p. 10.) Special Interrogatory No. 1 asked for all facts supporting the contention Solis was exposed to asbestos from a product supplied by Defendant. (Baravarian Decl., Ex. D at p. 3.) Plaintiffs responded that Leon Solis recalls working on his trucks and using products from Defendant. (Id., Ex. E at pp. 2-3.) Also Leon Solis testified about buying parts from Defendant. (Id., Ex. F at pp. 863-864.) These responses are not factually-devoid and do not reveal that Plaintiffs are not able to obtain the necessary evidence. Therefore, Defendant did not shift the burden.

C. Summary Adjudication

1. Third Cause of Action

Defendant moves for summary adjudication of the third cause of action because there is no evidence Defendant made any statement to Solis. To recover under section 402B of the Restatement, the defendant’s statement “must be a misrepresentation of material fact upon which plaintiffs justifiably relied.” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 111.) Special Interrogatory No. 10 asked Plaintiffs to state all fact supporting their causes of action, and the response incorporated the response to Special Interrogatory No. 1. (Baravarian Decl., Ex. D at pp. 8-9.) That response does not identify any false statement of material fact, let alone one upon which Solis or Plaintiffs relied. (Id. at pp. 2-6.) In other words, the response is factually devoid on this point. In addition, Leon Solis testified at his deposition that he, not his wife, bought the parts from Defendant. (Id., Ex. G at p. 893.) Plaintiffs presented no evidence of Solis relying on any misrepresentation.

Plaintiffs tacitly acknowledge the lack of evidence of any such misrepresentation because in their opposition, they focus on Defendant’s failure to warn. (Opposition at p. 3.) But this cause of action requires a misrepresentation. Defendant has shown that Plaintiffs have no evidence and cannot reasonably obtain such evidence of a misrepresentation of material fact upon which Solis (or Plaintiffs) relied, and Plaintiff pointed to none in the opposition. Therefore, summary adjudication of the third cause of action is granted.

2. Fourth Cause of Action

The fourth cause of action is for failure to warn and concealment. “[T]he elements of an action for fraud and deceit based on a 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.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) “A duty to speak may arise in four ways: it may be directly imposed by statute or other prescriptive law; it may be voluntarily assumed by contractual undertaking; it may arise as an incident of a relationship between the defendant and the plaintiff; and it may arise as a result of other conduct by the defendant that makes it wrongful for him to remain silent.” (SCC Acquisitions, Inc. v. Central Pacific Bank (2012) 207 Cal.App.4th 859, 860.)

Defendant contends Plaintiffs have no evidence of any concealment of the dangers of asbestos by Defendant, pointing to the same discovery responses discussed above. In those responses, Plaintiffs state Defendant did not provide any warning. (Baravarian Decl., Ex. D at p. 3.) But the discovery responses do not refer to any evidence that Defendants intentionally concealed information about asbestos in their products with the intent to defraud Plaintiffs and Solis. Nor do the discovery responses identify evidence that Defendant knew or had reason to know the products it was selling contained asbestos and the dangers of such asbestos-containing products. Plaintiffs refer to some articles about the dangers of asbestos and OSHA regulations but not to evidence that Defendant’s personnel read those articles or belonged to trade organizations publishing about asbestos, or that Defendant was subject to the OSHA regulations. These are boilerplate answers that restate Plaintiffs’ allegations, and therefore are factually devoid regarding this cause of action. (Weber, supra, 143 Cal.App.4th at 1440.)

In their opposition, Plaintiffs contend Defendant had a duty to disclose the information because of “its express and implied representations” that the products were safe. (Opposition at p 10.) But as discussed above, Plaintiffs presented no evidence of any such representations, and in the opposition merely refers back to the factually-devoid interrogatory responses. (See, e.g., Response to UMF 7.) The excerpts from Plaintiffs’ depositions similarly do not identify any such representations. Because Plaintiffs failed to show a disputed issue of material fact, summary adjudication of the fourth cause of action is granted.

3. Punitive Damages

Defendant moves for summary adjudication of the claim for punitive damages on the ground that there is no evidence of evil intent or despicable conduct by Defendant. (Motion at p. 23.) In Special Interrogatory No. 7, Defendant asked Plaintiffs to state all facts supporting the claim for punitive damages. (Baravarian Decl., Ex. D at pp. 3-4.) As discussed above, the responses do not identify evidence that Defendant knew, or had reason to know, the products it was selling contained asbestos or knew of the dangers of such asbestos-containing products. (Baravarian Decl., Ex. D at pp. 3-4.) The responses were factually-devoid on this point.

In opposition, Plaintiffs state “triable issues of fact are raised by evidence that Merced Truck was aware that asbestos caused disease since it opened its doors in 1992.” (Opposition at p. 15.) Plaintiffs cite no evidence for that assertion. (Ibid.)

Plaintiffs contend “the evidence in this case is no different than the evidence in Pfeifer, Stewart, Bankhead.” (Opposition at p. 15.) In Pfeifer, “the evidence showed that during the 1970s, [the defendant] knew that asbestos dust was hazardous, and it took action to protect its own employees from the hazard.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1300.) The defendant complied with OSHA regulations by monitoring its air and suppressing dust levels. (Ibid.) It prepared a safety data sheet to warn its employees about exposure to asbestos. (Ibid.) There is no similar evidence here that Defendant warned its own employees and yet failed to warn its customers.

In Stewart, there was evidence that “the warning [the defendant] gave its customers was weaker than the warning given to employees;” the defendant “prepared a toxicology report on the danger of asbestos;” the defendant gave some warnings to customers but not to its workers; when customers asked questions about the dangers of asbestos, the defendant told them it was “no big deal;” and a manager at defendant suggested downplaying the dangers of asbestos with customers. (Steward v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 34-35.) Again, there is no evidence like this here.

In Bankhead, there was evidence that the defendant knew about the danger of its products because in the 1970s it wrote letters to manufacturers “complaining about the presence of asbestos dust in the brake linings” but “did not place any warnings on its products until the early 1980s.” (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 73.) Also, “it warned persons who were exposed to its products that they should avoid breathing asbestos dust” and “it took measures to reduce the amount of dust associated with its products.” (Id. at p. 87.) Once again, there is no such evidence in this case.

Plaintiffs failed to show the existence of a triable disputed issue of material fact. Therefore, summary adjudication is granted on the punitive damages claim.

The motion for summary judgment is DENIED. The motion for summary adjudication of the third and fourth causes of action and the claim for punitive damages is GRANTED.

The moving party is to give notice.