Judge: Laura A. Seigle, Case: 21STCV01078, Date: 2022-10-12 Tentative Ruling

Case Number: 21STCV01078    Hearing Date: October 12, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

            Defendant J-M Manufacturing Company (“Defendant”) filed a motion for summary adjudication of Plaintiffs’ punitive damages claim. 

            A.        Objections

Plaintiffs’ Objections to Request for Judicial Notice: 

Objection Nos. 1 and 2 are sustained.

Plaintiff’s Objections to Evidence:

Objection Nos. 1-4, 6-11, 13-21, 25-27 are overruled.

Objection Nos. 5, 12, 22, 23, 24 are sustained.

Plaintiff’s Objections to Reply Evidence:

The court did not rely on this evidence.

Defendant’s Objections:

Defendant did not number its objections, making it more difficult to rule on the objections.  The court did not rely on most of the objected-to evidence and therefore does not rule on those objections.

Objection Nos. 9, 10, 21, 24, 28 are overruled.

B.        Summary Adjudication of Punitive Damages Claim

Defendant argues Plaintiffs have no evidence supporting an award of punitive damages.  (Motion at p. 11.)  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 cites Plaintiffs’ responses to interrogatories, specifically Nos. 1 and 9, as factually devoid.  (Motion at p. 11-12; Undisputed Material Fact “UMF” 42-45.)  Special Interrogatory No. 9 asked Plaintiffs to state all facts supporting their allegations of punitive damages.  (UMF 42.)  Plaintiffs responded by incorporating the response to Special Interrogatory No. 1.  (Defendant’s Index, Ex. T at p. 10.)  In response to Special Interrogatory No. 1, Plaintiffs stated Wendell Montgomery was exposed to asbestos from Defendant when he worked for Burke Construction between 1983 and 1987, Defendant’s representative admitted Defendant knew asbestos caused mesothelioma and one of Defendant’s products contained asbestos, and Defendant did not warn its customers about the risk and did not put warnings on the product.  (Defendant’s Index, Ex. T at pp. 2-6.) 

            Defendant also argues its affirmative evidence shows no malice, oppression or fraud because Defendant gave warnings to customers.  (Motion at p. 13.)  For example, Defendant put warning labels on the asbestos-containing products and trained salespeople to warn against the use of cutting the product with power saws.  (UMF 25, 26.)

            Assuming Defendant has shifted the burden, Plaintiffs submitted evidence of disputed issues of material fact.  The warning sticker on the pipe was two inches by two inches.  (Kiwala Decl., Ex. 20 at p. 105.)  It stated “Caution.  Do not use power saws to cut this pipe.  Breathing dust created by improper work practices may cause serious bodily harm,” and referred to the work practice guide.  (Id. at pp. 106, 107.)  The label did not mention the danger of cancer, that the pipe contained asbestos, or that it was dangerous or hazardous.  (Kiwala Decl., Ex. 3 at pp. 81-82; Ex. 20 at pp. 106-107.)  There is evidence Defendant knew that use of a power saw significantly increased asbestos exposure.  (Id., Ex. 19 at pp. 37-38; Ex. 20 at pp. 70-71.)  There is evidence that not all asbestos-containing pipes from Defendant contained the sticker.  (Id., Ex. 4 at pp. 24-26.)  In 1983, when the EPA was proposing a phase-out of asbestos uses, a manager at Defendant forwarded a WSJ article about the proposed phase-out to sales reps with a cover memo saying the company did not “plan to go out of the asbestos/cement pressure pipe business” and the product was “safe from the standpoint of the end user.”  (Id., Ex. 10.)  In 1986, Defendant required plant workers exposed to asbestos to wear “suitable respirators all the time.”  (Id. Ex. 13.)  This evidence shows disputed facts about whether warning stickers were placed on the pipes, the efficacy of the stickers, Defendant’s knowledge of the dangers of asbestos, Defendant’s efforts to warn users of the pipes such as pipe installers about asbestos exposure even as it was warning its own plant workers about asbestos exposure, and Defendant’s desire to continue making money off of the pipes even if users of the pipes could be exposed to asbestos.  The evidence could be understood to show company policy.

            The motion for summary adjudication is therefore denied.

C.        Summary Adjudication of Other Causes of Action

            Defendant’s memorandum also argues that summary adjudication should be granted on Plaintiffs’ fraud causes of action and premises liability cause of action.  However, the notice of motion does not identify these causes of action as subject to the motion.  Nor does Defendant’s separate statement separately identify these causes of action and the undisputed facts supporting the motion on each of those causes of action.  Therefore, the motion does not comply with California Rules of Court, rule 3.1350 (b) and (d).

            The motion is DENIED.

The moving party is to give notice.