Judge: Laura A. Seigle, Case: 20STCV48592, Date: 2022-08-23 Tentative Ruling

Case Number: 20STCV48592    Hearing Date: August 23, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Defendant Foster Wheeler LLC moves for summary judgment on the ground that Plaintiffs Filomena Massa, Guiseppe Coppola, and Michele Coppola have no evidence that decedent Luigi Coppola was exposed to asbestos as a result of working with or around any product from Defendant.  Plaintiffs allege the first through fourth and seventh causes of action against Defendant.  The fifth and sixth causes of action are alleged only against the Vessel Defendants.

            A.        Motion for Summary Adjudication

Although the caption of the notice of motion states “Defendant Foster Wheeler LLC’s Notice of Motion for Summary Judgment, Or, In The Alternative, Summary Adjudication,” Defendant did not comply with the rules for making a motion for summary adjudication.  For example, California Rules of Court rule 3.1350(b) requires the notice of motion to specify the “specific cause of action, affirmative defense, claims for damages, or issues of duty” sought to be adjudication.  The Notice of Motion does not do that.  Also, pursuant to California Rules of Court rule 3.1350(d), the Statement of Undisputed Material Facts must separately identify each cause of action and each supporting material fact claimed to be without dispute with respect to that cause of action.  The Separate Statement does not do that.

Defendant’s other motion papers, such as the Memorandum of Points and Authorities and Separate Statement refer only to a motion for summary judgment, not a motion for summary adjudication. 

Because Defendant did not comply with the rules for making a motion for summary adjudication, the Court will consider the motion to be a motion for summary judgment only.

B.        Motion for 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 contends Plaintiffs’ discovery responses and depositions do not reveal any products supplied by Foster Wheeler.  Because Plaintiffs have no such evidence, Defendant argues, Plaintiff cannot prove the decedent “was exposed to a product which contained asbestos that was actually manufactured, supplied or distributed by Foster Wheeler.”  (Motion at p. 6.)  Plaintiffs respond that federal maritime law, not state law, governs because “it is well established that maritime tort claims brought in state court, such as Plaintiffs’ claims here, are governed by federal maritime law” (Opposition at p. 9) and “The FAC expressly alleges that Plaintiffs’ claims arise under the maritime law.”  (Id. at p. 10.)  In its opposition, Defendant does not dispute that federal maritime law applies to Plaintiffs’ maritime tort claims.

            The First Amended Complaint alleges “Plaintiffs’ claims asserted herein arise under the General Maritime Law of the United States . . . .”  (FAC, ¶ 4.)  The first cause of action is for strict liability, and the second cause of action is for negligence.  These causes of action can be brought under general maritime law.  (See, e.g., Norfolk Shipbuilding & Drydock Corp. v. Garris (2001) 532 U.S. 811, 820 [“The general maritime law has recognized the tort of negligence for more than a century . . . .”]; East River S.S. Corp. v. Transamerica Delaval, Inc. (1986) 476 U.S. 858, 865, citing Pan-Alaska Fisheries, Inc. v. Marine Const. & Design Co. (9th Cir. 1977) 565 F2d 1129, 1134 [citing cases recognizing strict liability in maritime law].)

            The third cause of action is for false representation under the Restatement of Torts, and the fourth cause of action is for intentional torts under Civil Code section 1708-1710.  Thus, based on the pleadings, at least the third and fourth causes of action are not based on maritime law but on the Restatement and California law.  But because Defendant did not bring a motion for summary adjudication, the Court cannot adjudicate those causes of action separately from the other causes of action. 

            Because at least the first and second causes of action are pled as torts under general maritime law, that law governs.  However, Defendant did not address federal maritime law in its moving papers.  In its reply, Defendant argues Plaintiffs have no evidence to establish the factors set out in Air & Liquid Systems v. Devries (2019) 139 S.Ct. 986.  (Reply at p. 2.)  But Defendant cannot make this argument for the first time in its reply because Plaintiffs have no opportunity to respond.

            The motion for summary judgment is denied.

            The moving party is to give notice.