Judge Laura A. Seigle, Case 21STCV01099 2023-01-06 Tentative Ruling

Judge: Laura A. Seigle, Case: 21STCV01099, Date: 2023-01-06 Tentative Ruling

Case Number: 21STCV01099 Hearing Date: January 6, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Norma Brown and Allison Etter (“Plaintiffs”) allege George Brown was exposed to asbestos from products of Defendant Syd Carpenter, Marine Contractor, Inc. (“Defendant”). On October 19, 2022, Defendant filed a motion for summary judgment or summary adjudication in the alternative. 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 do not possess and cannot obtain evidence that George Brown (“Decedent”) was exposed to asbestos from products attributable to Defendant, and therefore, Plaintiffs cannot establish the requisite elements of exposure and causation. (Motion at pp. 4, 7-9.)

Defendant served interrogatories asking for all fact supporting the claim that Defendant’s products exposed Decedent to asbestos and all persons with knowledge about that contention. (Compendium, Ex. C at pp. 3-4, 11.) The responses state Decedent was exposed to Defendant’s asbestos-containing products during his service as a boiler tender in the U.S. Navy from 1951 to 1955. (Id., Ex. C at p. 4; Motion at p. 3; Undisputed Material Facts (“UMF”) 6.) Plaintiffs identified themselves and “their family members, friends, and Decedent George Brown’s co-workers, fellow servicemen, superiors, and any other persons that were present when Decedent George Brown worked with and/or around Defendant’s employees when they handled asbestos-containing products” as having knowledge about Decedent working with Defendant’s products. (Compendium, Ex. C at p. 11.) Plaintiffs’ discovery responses do not identify any documents showing Decedent worked with Defendant’s products. (UMF 11.) Decedent was not deposed before he died, and Plaintiffs have not identified any of his co-workers, superiors or shipmates who have product knowledge. (UMF 12.)

Plaintiffs have not identified any specific person who has knowledge of the products Decedent worked with while in the Navy. Decedent married Plaintiff Norma Brown in 1970, and Plaintiff Alison Etter was born in about 1975. (Compendium, Ex. B at p. 7.) Therefore, neither of them have firsthand knowledge of Decedent’s work on ships in 1951 to 1955. Plaintiffs’ discovery responses are factually devoid on the issue of product identification, thus shifting the burden to Plaintiffs. Because Plaintiffs did not file an opposition, Plaintiffs did not show the existence of any disputed issue of material fact.

Therefore, the motion for summary judgment is GRANTED. Defendant is to file a proposed judgment within five days.

The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Norma Brown and Allison Etter (“Plaintiffs”) allege George Brown was exposed to asbestos from products of Defendant BW/IP, Inc. On October 19, 2022, Defendant filed a motion for summary judgment or summary adjudication in the alternative. Plaintiffs did not file an opposition.

Defendant argues that Plaintiffs have no evidence that George Brown (“Decedent”) was exposed to asbestos from products attributable to Defendant and therefore, cannot establish elements of exposure and causation. (Motion at pp. 4, 7-8.)

Defendant points to Plaintiffs’ responses to the special interrogatories asking for all facts supporting Plaintiffs’ contention that Decedent breathed asbestos fibers from products attributable to Defendant. (Motion at p. 2; Undisputed Material Facts (“UMF”) 7-8.) Plaintiffs responded that Decedent was exposed to asbestos-containing pumps attributable to Defendant when he served in the U.S. Navy as a boiler tender from 1951 to 1955. (UMF 9; Index, Ex. E at p. 5.) Plaintiffs identified themselves and “their family members, friends, and Decedent George Brown’s co-workers, fellow servicemen, superiors, and any other persons that were present when Decedent George Brown worked with and/or around Defendant’s employees when they handled asbestos-containing products” as having knowledge about Decedent working with Defendant’s products. (Index, Ex. E at p. 30.) On October 18, 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. (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.