Judge: Laura A. Seigle, Case: 20STCV41475, Date: 2022-12-20 Tentative Ruling

Case Number: 20STCV41475    Hearing Date: December 20, 2022    Dept: 15

[TENTATIVE] ORDER RE DEFENDANT E.M. THARP, INC.’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION

On October 27, 2020, Plaintiffs Leon Solis Jr., Laura Rangel, Crystal Solis, and Leon Solis (collectively, “Plaintiffs”) filed a complaint for wrongful death and survival action against E.M. Tharp, Inc. (“Defendant”), among others.  Plaintiffs allege that Sylvia Solis (“Decedent”) was exposed to asbestos via Leon Solis and Leon Solis Jr. who worked with asbestos-containing products supplied by Defendant to the Solis family business, Solis Transport.  (Complaint, ¶ 11; Opposition p. 2.)

On September 29, 2022, Defendant filed this motion for summary judgment on the grounds that Plaintiffs cannot prove Defendant supplied asbestos-containing products to Solis Transport.  Defendant also seeks summary adjudication of the third and fourth causes of action and the punitive damages claim.

EVIDENTIARY OBJECTIONS

California Rule of Court 3.1354 requires objections to evidence to be “filed separately from the other papers in support of or in opposition to the motion” and specifies the format.  The rule does not allow objections to be inserted into the response to a separate statement of undisputed facts.  Defendant improperly inserted objections in its response to Plaintiffs’ Additional Separate Statement of Disputed and Undisputed Facts.  The court does not rule on those improper objections.

Defendant also filed Evidentiary Objections to Evidence Proffered by Plaintiffs, which the court rules on below:

Nos. 1, 2, 3, 28:  Defendant states it has no objections.  Because it has no objections, it did not need to include this evidence in its objections.

Nos. 4, 5, 6, 7, 20:  The court did not rely on this evidence and therefore does not rule on the objections.

Nos. 8, 9, 12, 13, 14, 15, 16, 17, 19, 21, 22, 23, 24, 25, 26, 27, 29, 30, 32, 33, 39, 40:  Overruled.

Nos. 10, 11, 18, 31, 34, 35, 36, 37, 38:  Sustained.

REQUEST FOR JUDICIAL NOTICE

Plaintiffs request judicial notice of (1) the Occupational Safety and Health Administration Regulations, published in volume 37 of the Federal Register, at pages 11318 through 11322, on June 7, 1972, attached as Exhibit 12 to the concurrently filed Declaration of Paul C. Cook; and (2) Letter to California Employers Who Use Asbestos, August 1977, issued by the Department of Health, California Health and Welfare Agency, attached as Exhibit 13 to the concurrently filed Declaration of Paul C. Cook.  Defendant objects to the Plaintiffs’ request for judicial notice.  The objection to the request for judicial notice is overruled.  The court takes judicial notice of the documents in accordance with Evidence Code section 451, subdivision (b) and section 452, subdivisions (b) and (c).

DISCUSSION

I.                   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 Plaintiffs have no evidence Decedent was exposed to asbestos from any product attributable to Defendant.  (Motion at p. 16.)  Defendants point to Plaintiffs’ response to a special interrogatory asking for all facts supporting the content that Decedent was exposed to asbestos from a product of Defendant.  (Index, Ex. J at p. 2.)  Plaintiffs responded in conclusory fashion that Solis Transport used asbestos-containing products from E.M. Tharp Inc. in Fresno, California.  (Id. at p. 3.)  The response identified Leon Solis and Leon Solis Jr and co-workers as having information.  (Id. at p. 5.)  Plaintiffs have not provided contact information for the co-workers, and they are unreachable, do not have information supporting Plaintiffs’ claims, or are unwilling to participate in the case.  (UMF 19, 20, 22.)  One of the co-workers testified and did not identify E.M. Tharp as a source of products.  (“Undisputed Material Fact”) UMF 23; Index, Ex. K.) 

Leon Solis Jr. could not identify any products they used from E. M. Tharpe.  (Index., Ex. C at pp. 576-580.)  (Rather than answering the questions, the witness was evasive.  This did not help the witness because the non-answers are not evidence that Solis Transport used Defendant’s products.  Rather they are evidence the witness was trying not to answer the questions.)  Leon Solis Jr. produced a list of suppliers that did not include E.M. Tharp.  (UMF 38)  Leon Solis Sr. testified the name E.M. Tharpe was familiar but he did not testify that Solis Transportation obtained products from E. M. Tharpe.  (Index, Ex. D at pp. 818-826.)  (This witness too would not answer straightforward questions, which did not help Plaintiffs’ case.  This kind of conduct at depositions will undermine witnesses’ credibility at trial.)

Defendant satisfied its initial burden of showing Plaintiffs do not have and cannot obtain evidence that Solis Transportation use Defendant’s products.  The burden thus switches to Plaintiffs.

Plaintiffs argue that Solis Transportation obtained parts from Golden State Peterbilt in Fresno, which was a dba of Defendant.  (Opposition at p. 1.)  Leon Solis Sr. testified that he made a list of the brands of products and suppliers he used.  (Cook Decl., Ex. 1 at pp. 1026, 1059.)  The list included Peterbilt.  (Id. at p. 1048.)  Similarly, Leon Solis Jr. testified they obtained products from a Peterbilt dealership in Fresno.  (Cook Decl., Ex. 3 at p. 36.)  Golden State Peterbilt in Fresno was a dba of Defendant beginning in 1993.  (Additional Undisputed Material Fact (“AUMF”) 87, 88.)  The complaint alleges exposure via Solis Transport from 1978 through the 1990s.  (Complaint, Ex. A.)  This evidence shows the existence of disputed issues regarding whether Solis Transport obtained asbestos-containing parts from Golden State Peterbilt in Fresno in 1993 and thereafter. 

Defendant’s reply arguments that non-asbestos containing options were available by 1993 and that there were other Peterbilt dealers that could have been the source of the products show that the issue is disputed. 

The motion for summary judgment is denied.

II.                Summary Adjudication

A.        Third Cause of Action – False Representation

Defendant moves for summary adjudication on Plaintiffs’ third cause of action for false representation under Restatement of Torts Section 402-B.  Specifically, Defendant argues Plaintiffs have no evidence that Defendant made any statement to Plaintiffs or Decedent.  (Motion at p. 15.) 

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.)

As expressed in Westlye, a direct statement to the end user of the product is not necessary in product liability context; a public misrepresentation is enough. (Westlye, supra, 17 Cal.App.4th at p. 1751.)  Under Restatement of Torts section 402-B, plaintiffs do not need to have relied on the 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.]”  (Ibid.)  Because this cause of action does not require evidence Defendant made any misrepresentation to Decedent or Plaintiffs, or that Decedent or Plaintiffs knew about or relied on any representation by Defendant, this argument fails, and summary adjudication is denied.

B.        Fourth Cause of Action – Intentional Tort

Defendant moves for summary adjudication on the fourth cause of action for intentional tort/intentional failure to warn/concealment.  This cause of action alleges a violation of a duty under Civil Code sections 1708, 1709, and 1710. (Complaint, ¶ 40.)  Civil Code section 1708 states generally that a person is to abstain from injuring another person.  That does not create a cause of action. 

Civil Code 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.”

“[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.)   

Defendant contends Plaintiffs have no evidence of any concealment of the dangers of asbestos by Defendant, pointing to interrogatory responses.  Special Interrogatory No. 7 asked Plaintiffs to state all facts supporting this cause of action.  (Index, Ex. J at p. 8.)  Plaintiffs’ response was factually devoid on this point.  (Id. at pp. 2-6.)  Plaintiffs’ other discovery responses were equally factually devoid.  (UMF 65, 66.)  Defendant satisfied its initial burden, and the burden shifts to Plaintiffs. 

In opposition, Plaintiffs refer to some scientific and medical articles about the dangers of asbestos and OSHA regulations but do not present evidence that Defendant’s personnel read those articles or belonged to trade organizations publishing about asbestos. (Opposition at p. 4; Cook Decl., Exs. 7-13.)  Plaintiffs’ reference to such articles and regulations do not prove that Defendant knew of the dangers of its asbestos-containing products and intentionally concealed the dangers from its users.

In sum, Plaintiffs did not show a disputed issue concerning Defendant’s knowledge or active concealment of the dangers of asbestos in its products.  Summary adjudication of the fourth cause of action is granted.   

C.        Punitive Damages

Defendant moves for summary adjudication of the punitive damages claim, arguing that Plaintiffs do not have any clear and convincing evidence of malice, oppression or fraud by an officer, director, or managing agent of Defendant.  (Motion at pp. 17-19.) 

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.)

“ ‘[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 from the hazard, 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.)  

Defendant argues that Plaintiffs’ discovery responses do not list any facts showing Defendant acted with malice, oppression, fraud, or in conscious disregard for the safety of Plaintiffs or Decedent.  (Motion at p. 19.)  Special Interrogatory Nos. 9 and 10 asked Plaintiffs to state all facts and identify all documents supporting the punitive damages claim.  (UMF 71.)  Plaintiffs’ response did not identify any evidence that Defendant knew of the dangers of asbestos, took action to protect its own employees, or knew its products were likely to pose a danger to users and did not warn them.  (Index, Ex. J at pp. 2-6.)  Nor did Plaintiffs cite evidence Defendant knew asbestos in Defendant’s products could cause a high probability of injury.  These factually devoid responses are sufficient to shift the burden to Plaintiffs.

In their opposition, Plaintiffs argue there are triable issues of fact because it was known in the 1970s that asbestos were harmful and Defendant failed to warn its customers of the hazards of asbestos, despite having such knowledge.  (Opposition at pp. 3-4, 12-13.)  Plaintiffs refer to government regulations requiring warning labels on products containing asbestos and requiring all employers using asbestos, including those doing brake and clutch work, to submit reports of incidents involving release of asbestos.  (AUMF 101, 102.)  Plaintiffs also cite Leon Solis Sr.’s deposition testimony (AUMF 92), where he testified that he saw warnings on products – “the letters were small.  This may cause cancer,” “they put their label on the box,” “That warning, I don’t even know when it started coming on there.  I mean I – I seen it – I know it – didn’t hardly see it.”  (Cook Decl., Ex. 1 at pp. 1060-1061.)  Thus, far from submitting evidence that Defendant was not complying with these regulations, Plaintiffs’ evidence is that there were at least some warning labels on some products that Solis Sr. saw.  The documents cited by Plaintiffs and the deposition testimony do not show by clear and convincing evidence that Defendant knew its products contained hazardous level of asbestos and failed to warn the users.  

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

CONCLUSION

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

The moving party is ordered to give notice.