Judge: Laura A. Seigle, Case: 21STCV06288, Date: 2024-02-15 Tentative Ruling

Case Number: 21STCV06288    Hearing Date: March 5, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT (ALLIED)

On February 17, 2021, Plaintiff Kenneth Chaney filed this action alleging his father, Walter Frederick Chaney, developed mesothelioma from asbestos in Defendant Allied Building Products Corp. DBA Acoustical Material Services’ products.  On December 1, 2023, Defendant filed a motion for summary judgment and summary adjudication.

A.        Objections

Plaintiff’s Objections:  The court did not rely on this material.

Defendant’s Objection Nos. 1-10, 13:  Overruled.

Defendant’s Objection Nos. 11, 12, 14, 15:  Sustained.  See below.

B.        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 cites Plaintiff’s response to an interrogatory asking for details about how Chaney was exposed to asbestos by act or omission of Defendant.  Plaintiff responded that Chaney worked with or around asbestos-containing insulation products distributed, sold, or supplied by Defendant while Chaney was employed with Sound Control Co. between approximately 1955 and 2000.  (Kezbar Decl., Ex. 4 at pp. 2-3.)  The interrogatory response describes working with various unidentified ceiling, drywall, and plaster products, including Insul-quilt blankets, but does not state that Chaney obtained those products from Defendant.  The response suggests that Chaney possibly bought some unspecified type of insulation from Defendant.  (Id. at p. 4.)  This response does not identify the specific asbestos-containing products Chaney obtained from Defendant or the expert who allegedly will testify that the unspecified products contained asbestos.  The response is analogous to an allegation that is not supported by specified evidence. 

In addition, Plaintiff identified co-workers and superiors, including Greg Chaney, Paul Chaney, and Wayne Mabry, and other unnamed people, as having information about Decedent’s exposure.  (Kezbar Decl., Ex. 4 at pp. 6-7.)  Plaintiff listed Defendant’s documents, records, discovery responses, and deposition testimony of unnamed corporate representatives and employees as having information, but did not identify particular documents.  (Kezbar Decl., Ex 3 at pp. 2-3, 6.)  Wayne Mabry, Paul Chaney, and Greg Chaney testified they have no information about Chaney’s exposure to any asbestos in products sold by Defendant.  (Kezbar Decl., Ex. 7 at pp. 110-11; Kezbar Decl., Ex 8 at p. 243; Kezbar Decl., Ex. 9 at p. 139.)

The deposition testimony and discovery responses do not provide evidence that Decedent worked with or around an asbestos-containing product sold or supplied by Defendant.  They do not even specify the particular asbestos-containing products that Plaintiff alleges Chaney obtained from Defendant.  Thus, they are factually-devoid, and Defendant shifted the burden.

In opposition, Plaintiff contends Chaney “used DAP sealing products, including DAP acoustical sealant,” Chaney bought the DAP sealant from Defendant, and the DAP acoustical sealant contained asbestos.  (Opposition at pp. 8, 10.)  In support of these assertions, Plaintiff filed additional excerpts from Wayne Mabry’s deposition where he testified he worked extensively with Chaney from 1978 to the mid-1980s, they used DAP sealing products including acoustical sealant, Defendant was a main supplier of materials, and he bought DAP acoustical sealant from Defendant.  (Gurien Decl., Ex. A at pp. 27-28, 30-31, 100-101, 279, 287-288, 313-314.)

Plaintiff contends the DAP acoustical sealant contained asbestos before 1979, citing the declaration of Perry Gottesfeld.  (Opposition at pp. 10, 20.)  Gottesfeld states he reviewed interrogatory response from DAP dated March 4, 2011 from a different case, “based on which I am informed that DAP manufactured and sold a product called Acoustical Sealant that contained chrysotile asbestos prior to the end of 1978.”  (Gottesfeld Decl., ¶ 13.)  He also states he reviewed a March 16, 2004 affidavit, “based on which I am informed that asbestos was removed as a component part of DAP’s entire product line by the end of 1978.”  (Id., ¶ 14.)  Gottesfeld concludes that “the DAP acoustical sealant used by Mr. Chaney in 1978, which was sold or supplied by [Defendant], contained asbestos because, prior to the end of 1978, the product was manufactured with chrysotile asbestos.”  (Id., ¶ 26.)

Defendant objects that these statements are hearsay, the referenced documents are not attached to the declaration, the referenced documents are not admissible, and therefore, the expert’s declaration is based on inadmissible hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665.  Gottesfeld’s conclusion that DAP acoustical sealant contained asbestos is inadmissible for several reasons. 

Gottesfeld’s conclusion is based on a 2011 interrogatory response from DAP.  (Gottesfeld Decl., ¶ 13.)  An interrogatory response may be used “only against the responding party.”  (Code Civ. Proc. § 2030.410.)  Here, Plaintiff seeks to use the DAP response against Defendant, but the DAP response is not admissible against Defendant.

Gottesfeld relies on the 2011 DAP interrogatory response for the truth of the matter asserted – that in fact the DAP acoustical sealant contained asbestos before 1979.  (Gottesfeld Decl., ¶ 13.)  Thus the response is hearsay.  (Sanchez, supra, 63 Cal.4th at p. 674-675.)  While an expert can rely on hearsay, an expert cannot “supply case-specific facts about which he has no personal knowledge.”  (Id. at p. 676.)  Gottesfeld does not establish that the contents of DAP acoustical sealant is “generally accepted background information” or “general knowledge in his field of expertise.”  (Ibid.)  To the contrary, he states that the interrogatory response “informed” him about the asbestos content of the DAP acoustical sealant.  (Gottesfeld Decl., ¶ 13.)  In other words, he did not previously know from general knowledge in his field that particular product contained asbestos.  Plaintiff is improperly using Gottesfeld to supply hearsay from the 2011 DAP interrogatory response and the 2004 affidavit without first obtaining the admission of these documents, or even filing them with Plaintiff’s opposition.

Because Gottesfeld’s conclusion is not admissible, and because Plaintiff did not submit any other admissible evidence that DAP acoustical sealant contained asbestos before 1979, Plaintiff has not shown a disputed issue concerning Chaney’s exposure to asbestos from Defendant’s products.

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

The moving party is to give notice.