Judge: Laura A. Seigle, Case: 21STCV16240, Date: 2023-02-08 Tentative Ruling

Case Number: 21STCV16240    Hearing Date: February 8, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiffs James Manns, David Papworth, Carle Edwards, Shauna Papworth, Jami Hoffman and Robee Green allege that Debra Manns (“Decedent”) was exposed to asbestos from Defendant Brunswick Corporation’s products.  Defendant moved for summary judgment on the ground that Plaintiffs have no evidence of exposure to asbestos from any product of Defendant.  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 or that Decedent was on any property owned by Defendant.  (Motion at p. 4.)  Defendant refers to Standard Interrogatory No. 18, asking for all facts, witnesses and documents supporting their allegations including, job sites, manner, duration and time period of exposure, and types of products resulting in exposure.  (Undisputed Material Fact (“UMF”) 3.)  Plaintiffs responded that Decedent worked with bowling balls and bowling-related talc during her time at bowling alleys from 1983 to 2004.  (UMF 4; Galdo Decl., Ex. B at pp. 8-9.)  Plaintiffs did not identify any specific products of Defendant or any property of Defendant where Decedent was exposed to asbestos.  (UMF 5, 24; Motion at p. 5.)  

Defendant also cites the deposition of Lynn Papworth, ex-husband of Decedent.  (UMF 6; Motion at p. 5.)  Lynn Papworth testified that Decedent owned three Brunswick bowling balls and was present when the pro shop drilled finger holes in the bowling balls.  (UMF 8-9.)  Lynn Papworth did not know if the bowling balls contained asbestos or if Defendant made an Ez-Slide product he used for bowling.  (UMF 14-16.)  Also, Defendant’s former employees, Chuck Hostad and Joseph Beryle, declare that Defendant’s bowling bowls did not contain any asbestos.  (UMF 21; Galdo Decl., Ex. E at ¶¶ 6-8; Id., Ex. F at ¶ 5.)  

Defendant satisfied its burden of showing that Plaintiffs do not have and cannot obtain evidence supporting the contention that Decedent was exposed to asbestos from Defendant’s products or while on Defendant’s property.  The burden shifted to Plaintiffs, but because Plaintiffs did not file an opposition, they did not show any disputed facts.

Therefore, the motion for summary judgment is GRANTED.  Defendant is to file a proposed judgment within 5 days.

The moving party is to give notice.