Judge Laura A. Seigle, Case 20STCV41615 2022-08-19 Tentative Ruling

Judge: Laura A. Seigle, Case: 20STCV41615, Date: 2022-08-19 Tentative Ruling

Case Number: 20STCV41615 Hearing Date: August 19, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiffs Robert Strangman and Alison Strangman allege Robert Strangman was exposed to asbestos while employed at National Steel & Shipbuilding Company. (Complaint, ¶ 9.) Defendant Fryer-Knowles, Inc., a Washington Corporation (“Fryer-Knowles Washington”) moves for summary judgment on the grounds that Plaintiffs cannot establish Robert Strangman was exposed to asbestos by work that Fryer-Knowles Washington employees performed because by 1973, it was no longer doing business in California. Such California work was performed by Fryer Knowles, Inc. dba Fryer-Knowles, Inc. a California Corporation (“Fryer Knowles California”).

A. Objections

1. Plaintiffs’ Objections to Request for Judicial Notice

The request for judicial notice is granted. The Court may take judicial notice of the legal effects of the documents. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 755.) The legal effect of the documents are that Fryer-Knowles Washington was no longer authorized to transact business in California after 1973 and Fryer-Knowles California was incorporated in California in 1973.

2. Plaintiffs’ Objections to Evidence

No. 1: Sustained.

No. 2: Overruled.

3. Defendant’s Objections to Evidence

Nos. 1, 2: The Court did not rely on the letter and therefore does not rule on the objections.

B. Analysis

On a motion for summary judgment, “the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Fryer-Knowles Washington argues its employees could not have exposed Robert Strangman to asbestos because Plaintiffs state in discovery responses that he worked at National Steel & Shipbuilding Company from 1976 to 1984, but Fryer-Knowles Washington stopped doing work in California in 1973, leaving Fryer-Knowles California the company doing business in California. (Motion at pp. 2, 4.) In support of this argument, Fryer-Knowles Washington submits Robert Strangman’s interrogatory responses stating he was exposed to asbestos containing products from 1976 to 1984; the California Secretary of State document showing it surrendered its license to transact business in California on August 21, 1973; a Secretary of State record showing Fryer-Knowles California was incorporated on August 29, 1973; and deposition testimony from another case by the Fryer-Knowles California PMK witness Bradley Bittner that when Fryer-Knowles California was formed, Fryer-Knowles Washington stopped doing business in California. (Undisputed Material Fact (“UMF”) 5, 6, 10; Ghanaat Decl., Ex. J at pp. 150-151.) This evidence is sufficient to satisfy Fryer-Knowles Washington’s initial burden of showing that Fryer-Knowles Washington was not doing business in California after 1973 and therefore its workers could not have exposed Robert Strangman to asbestos.

Plaintiffs argue there are disputed facts about whether Fryer-Knowles Washington stopped working in California in 1973 because Robert Strangman testified he worked “in close proximity to Fryer-Knowles persons” and Susan Bittner testified as a PMK witness that she does not know whether Fryer-Knowles Washington conducted business in California after 1974. (Opposition at pp. 9, 10.)

Plaintiffs’ evidence does not create triable issues of material fact. Robert Strangman testified he never heard of Fryer-Knowles Washington, did not remember Fryer-Knowles being associated with Washington, and did not know where Fryer-Knowles was incorporated. (Ghanaat Decl., Ex. I at pp. 357-358.) His testimony does not show that Fryer-Knowles Washington, as opposed to Fryer-Knowles California, was doing business in California after 1973. Susan Bittner testified that she did not know if Fryer-Knowles Washington conducted business in California after 1973. (Fuchs Decl., Ex. 1 at p. 8.) That is not evidence that Fryer-Knowles Washington was in fact conducting business in California after 1973. It is merely evidence that Susan Bittner does not know.

These witnesses’ lack of knowledge do not support allow an inference that Fryer-Knowles Washington was conducting business in California after 1973. “[I]n ruling on a summary judgment motion, ‘the court must “consider all of the evidence” and “all” of the “inferences” reasonably drawn therefrom [citations] ....’ [Citations.] At the same time, ‘ “[w]hen opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork.” [Citation.]’ [Citation.]” (Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1298-1299.) Inferences cannot be drawn “from thin air.” (Leslie g. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483.) The plaintiff “must show that the inferences favorable to her are more reasonable or probably than those against her.” (Ibid.) “[I]f it appears that the facts from which an inference is drawn, although consistent with that theory, are equally consistent with some other theory, they do not support the theory contended for.” (Ibid.) Here the witnesses’ lack of knowledge allows both an inference that the company stopped working in California in 1973 and an inference that the company did not stop working in California. Because either inference can be drawn from the witnesses’ lack of knowledge, Plaintiffs have not shown that the inference that Fryer-Knowles Washington continued doing business in California after 1973 is more reasonable or probable than that it did not. The inference that Fryer-Knowles Washington continued doing business in California after 1973 is derived from speculation.

Because Plaintiffs did not show a disputed issue of material fact for the jury, summary judgment is GRANTED in favor of Fryer-Knowles Washington.

The moving party is to give notice.