Judge: Laura A. Seigle, Case: 20STCV48199, Date: 2023-03-10 Tentative Ruling

Case Number: 20STCV48199    Hearing Date: March 10, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiffs Alisha Alfonso, Sydney Ratliff and Regina Nauditt allege that Broward Ratliff (“Decedent”) was exposed to asbestos-containing products.  On January 9, 2023, Defendant BW/IP, Inc. filed a motion for summary judgment.  Plaintiffs did not file an opposition.

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 Plaintiffs have no evidence that Decedent was exposed to asbestos from Defendant’s products.  (Motion at pp. 6-7, 10.)  Defendant cites Plaintiffs’ responses to the special interrogatories asking for all facts supporting the contention that Decedent breathed asbestos fibers from Defendant’s products.  (Motion at p. 3; Undisputed Material Facts (“UMF”) 8.)  Plaintiffs responded Decedent was exposed to asbestos while serving in the U.S. Navy as a boiler tender from 1960 to 1964 aboard various ships.  (Motion at p. 3; UMF 9.)  Plaintiffs identified “themselves, family members, friends, and Decedent’s co-workers, superiors and other persons that were present when Decedent Broward Ratliff worked around Defendant’s asbestos-containing products.”  (Motion at p. 3.; UMF 11; Index, Ex. E at p. 29.)  Defendant also propounded requests for production of documents, asking Plaintiffs to produce all documents to support their claims against Defendant.  (UMF 13.)  Plaintiffs did not produce documents but referred to a laundry list of documents, such as Plaintiffs’ responses to special interrogatories, Plaintiffs’ depositions, Decedent’s records, and other documents produced by Defendant. (UMF 14.)

On December 28, 2022, Defense counsel sent Plaintiffs’ counsel a letter confirming Plaintiffs, who married Decedent or were born after the alleged exposure, are not product identification witnesses, and stating that no response to the letter would be confirmation.  (UMF 12; Id., Ex. F.)  There was no response.  (Robles Decl., ¶ 7.)  Defendants argue these responses confirm Plaintiffs have no evidence, and cannot obtain evidence, that Decedent worked with Defendant’s products.

These discovery responses with their laundry list of unnamed witnesses, and Plaintiffs’ confirmation that they have no product identification knowledge, are sufficient to shift the burden to Plaintiffs.  Because Plaintiffs did not file an opposition, they did not show the existence of a disputed fact. 

The motion for summary judgment is GRANTED.  Defendant is to file a proposed judgment within five days.

The moving party is ordered to give notice.