Judge: Laura A. Seigle, Case: 21STCV16240, Date: 2023-03-09 Tentative Ruling

Case Number: 21STCV16240    Hearing Date: March 9, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

Plaintiffs James Manns, individually and as successor-in-interest to Debra Manns, David Papworth, Carie Edwards, Shauna Papworth, Jami Hoffman, and Robee Green filed this action alleging Debra Manns (“Decedent”) developed mesothelioma as a result of exposure to asbestos.  On February 14, 2023, Defendant Amcord, Inc. moved for summary adjudication of Plaintiffs’ punitive damages claim.

Defendant’s Objection Nos. 3-13, 27-39 are overruled.  There are no Objection Nos. 1-2.  The Court did not rely on the evidence in Objection Nos. 14-26:

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.)

When the motion targets a request for punitive damages, a higher standard of proof is at play.  “Although the clear and convincing evidentiary standard is a stringent one, ‘it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment [or summary adjudication.’  [Citations.]  Even so, ‘where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.’  [Citation.]”  (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1158-1159.)  “Summary judgment or summary adjudication ‘ “ ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.’ ” ’.  [Citation.]”  (Id. at p. 1159.)

For a corporate defendant, the oppression, fraud or malice “must be on the part of an officer, director, or managing agent of the corporation.”  (Civ. Code, § 3294, subd. (b).)  That requirement can be satisfied “ ‘if the evidence permits a clear and convincing inference that within the corporate hierarchy authorized persons acted despicably in “willful and conscious disregard of the rights or safety of others.” ’  [Citation.]”  (Morgan v. J-M Manufacturing Company, Inc. (2021) 60 Cal.App.5th 1078, 1090.)  A plaintiff also “can satisfy the ‘managing agent’ requirement ‘through evidence showing the information in the possession of the corporation and the structure of management decisionmaking that permits an inference that the information in fact moved upward to a point where corporate policy was formulated.’  [Citation.]”  (Id. at p. 1091.)

“ ‘[I]ntentionally marketing a defective product knowing that it might cause injury and death is ‘highly reprehensible.’  [Citation.]”  (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 85.)  Punitive damages may be available when a defendant knows the dangers of asbestos, took action to protect its own employees from the hazard, knew that its products were likely to pose a danger to users, and did not warn them.  (Pfeifer v. John Crane, Inc. (2013) 220 Cal.Ap.4th 1270, 1300.)  Such evidence “was sufficient to show malice, that is, despicable conduct coupled with conscious disregard for the safety of others.”  (Id. at pp. 1300-1301.) 

Defendant argues Plaintiffs’ discovery responses are factually deficient, citing to Plaintiffs’ responses to special interrogatories which asked for all facts supporting their punitive damages claim.  (Motion at pp. 1-2; Undisputed Material Fact “UMF” 4-5.)  Plaintiffs responded Decedent was exposed to asbestos through her father, brother, and ex-husband, who used the asbestos-containing products, including Riverside stucco and cement products, manufactured, sold or distributed by Defendant between 1961 and 1998.  (Defendant’s Index, Ex. 3 at p. 14.)  Plaintiffs also stated that Defendant knew or should have known about the dangers of asbestos by referring to scientific articles and listed various individuals with knowledge.  (Id. at pp. 15-17.)  Providing a laundry list of names is not sufficient.  (Weber, supra, 143 Cal.App.4th at p. 1440.)  The responses also did not contain specific evidence that Defendant saw those scientific articles, or otherwise had knowledge about the asbestos at the relevant time period.    

Defendant also cite Plaintiffs’ responses to requests for production relating to punitive damages.  (UMF 6.)  In their responses, Plaintiffs responded by incorporating the response to request for production No. 1.  (Defendant’s Index, Ex. 5 at p. 6.)  The response to request for production No. 1 referred to the deposition testimonies of employees of Defendant and expert witnesses, Decedent’s records, and discovery responses of Defendant.  (Id. at pp. 4-5.)  The responses did not provide any specific evidence concerning Defendant’s knowledge or intent to harm to prove malice, oppression, fraud, or conscious disregard for the safety of others. Therefore, Defendant shifted the burden.

In opposition, Plaintiffs argue that Defendant knew of the hazards of asbestos by 1971 but continued to sell its products without providing warnings.  (Opposition at pp. 2, 14.)  Plaintiffs cite Defendant’s interrogatory responses stating that Defendant admitted its actual knowledge of the dangers of asbestos.  (Plaintiff’s Additional Undisputed Fact (“PAUF”) 11; Opposition at p. 14.)  In response to Interrogatory No. 72, Defendant stated it was aware in July 1971 that there were health problems arising with asbestos-containing fireproofing products and fully complied with all then existing regulations requiring placement of a warning label on asbestos-containing products.  (Eyerly Decl., Ex. 4 at p. 21.)  Plaintiffs also cite the deposition of Decedent’s ex-husband, Lynn Papworth, who testified he did not see any warning on Riverside Gun Plastic Cement in the 1970s.  Plaintiffs point out that Defendant’s interoffice memos and correspondence to the City of Los Angeles in the 1970s show Defendant developed asbestos-free products and could have discontinued the use of asbestos in Riverside Gun Plastic Cement but continued to use asbestos due to costs.  (PAUF 21-25; Opposition at pp. 7-8.)

In reply, Defendant argues it did not violate then-existing OSHA or Cal-OSHA regulations, did not develop an alternative formula with the intent to harm its users, and put warnings on its products.  (Reply at p. 4-5.)  Defendant does not cite law that complying with regulations is a defense to punitive damages.

The evidence proffered by Plaintiffs creates disputed issues of material fact about Defendant’s knowledge of the hazards of asbestos and the need to minimize exposure, and whether Defendant took appropriate steps or refrained from replacing the asbestos-containing product with a new product due to costs.  The court cannot conclude that no reasonable jury could find clear and convincing proof of malice, fraud, or oppression.  

The motion for summary adjudication is DENIED on the claim for punitive damages.

The moving party is to give notice.