Judge Laura A. Seigle, Case 21STCV16240 2023-03-10 Tentative Ruling

Judge: Laura A. Seigle, Case: 21STCV16240, Date: 2023-03-10 Tentative Ruling

Case Number: 21STCV16240 Hearing Date: March 10, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION TO QUASH

On December 12, 2022, Defendants Master Industries Worldwide, LLC and Storm Products, Inc. filed this motion to quash service of summons with a hearing date on January 11, 2023. In opposition, Plaintiffs asked for time to take jurisdictional discovery. The court granted that request and continued the hearing date to March 10, 2023. In the last two months, the parties did not conduct the discovery, apparently one deposition. Instead, Plaintiffs filed another request to continue the hearing date, this time to May 10, 2023. Plaintiffs did not explain why they need another two months to schedule one deposition. In any event, the trial date is April 10, 2023. The parties did not show good cause for failing to take the jurisdictional discovery in the last two months, and the court will not continue the trial date based on the parties’ lack of diligence.

The hearing on Defendants’ motion to quash is continued to March 24, 2023 at 9 a.m. Plaintiffs are to file a supplemental opposition by March 20, 2023. Defendants are to file a supplemental reply by March 22, 2023.

The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiffs James Manns, David Papworth, Carie Edwards, Shauna Papworth, Jami Hoffman, and Robee Green (“Plaintiffs”) allege that Debra Manns (“Decedent”) was exposed to asbestos-containing products. On February 8, 2023, Defendant Calaveras Asbestos, Ltd. (“Defendant”) filed a motion for summary judgment. This motion is unopposed.

Defendants request judicial notice of (1) W.W. Henry’s Responses to Standard Interrogatories, attached as Exhibit A and also referenced as Exhibit Q to the Index; and (2) OSHA Regulation at 29 CFR 1926.1101(a) 8 2004, and Asbestos Information Association/North America v. Reich, 117 F.3d 891 (5th Cir. 1997), attached as Exhibit B also referenced as Exhibit U to the Index of exhibits. Plaintiffs did not object. Therefore, the Court grants judicial notice of the documents.

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 that Plaintiffs have no evidence that Decedent was exposed to asbestos from Defendant. (Motion at pp. 12-14, 16-17.) Defendant cites Plaintiffs’ responses to special interrogatories. (Motion at p. 3.) Special Interrogatories Nos. 1 and 3 asked for all facts and witnesses supporting Plaintiffs’ claims against Defendant. Plaintiffs responded that Decedent was exposed to products containing asbestos from Defendant while performing construction and remodeling work with her ex-husband, Lynn Papworth. (Undisputed Material Fact “UMF” 6.) Plaintiffs identified defendants’ agents, employees, custodian of records, and Decedent’s co-workers without providing any contact information. (UMF 8.) Defendant also propounded requests for production of documents asking for all documents supporting Plaintiffs’ claims against Defendant. (UMF 9.) Plaintiffs did not produce documents, but generally referred to Plaintiffs’ records and responses to discovery, deposition testimonies of corporate representatives, employees and/or former employees of Defendant. (UMF 10.) These discovery responses do not offer any specific evidence.

Lynn Papworth testified Decedent cleaned the tools he used to apply products from W.W. Henry Company. (UMF 31, 38.) Carie Edwards testified she saw W.W. Henry Company’s products at Decedent’s houses and saw Lynn Papworth using the products. (UMF 52, 55, 58.) On January 21, 2022, Plaintiffs’ counsel stipulated that Lynn Papworth and Carie Edwards will not provide product identification testimony against Defendant. (UMF 12, 45.) Plaintiffs’ counsel also stipulated that Richard Prentice and Plaintiffs James Manns, Shauna Papworth, and Jami Hoffman, as well as David Papworth and Robee Green will not have any product identification testimony against Defendant and W.W. Henry Company. (UMF No. 67-68.)

Defendant contends it only supplied minimal amount of fiber to W.W. Henry Company from 1976 to 1978, with two additional shipments in 1980. (Motion at pp. 8, 14; UMF 73.) Defendant cites W.W. Henry Company’s discovery responses, which state Defendant was one of the several fiber suppliers for its products and it used Defendant’s asbestos in flooring products rather than in roofing products. (UMF 79.)

Defendant showed Plaintiffs lack evidence, and cannot reasonably obtain evidence, that Decedent was exposed to asbestos from Defendant. The only potential link is Defendant’s supply of some asbestos to W.W. Henry Company between 1976 and 1978 and in 1980. But Defendant has shown Plaintiffs do not have evidence and cannot reasonably obtain evidence that Defendant’s asbestos ended up in the W.W. Henry Company roofing products used by Lynn Papworth. Therefore, the burden shifted to Plaintiffs. Because Plaintiffs did not file an opposition, they did not show the existence of a disputed fact.

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.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiffs allege Debra Manns was injured as a result of exposure to asbestos fibers created by a brake grinder manufactured by Defendant Hennessy Industries LLC. (“Defendant”). Defendant filed a motion for summary summary adjudication on the grounds that Plaintiffs cannot have no evidence supporting the claim for punitive damages.

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.)

“ ‘[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 devoid. The special interrogatory responses state Debra Manns was exposed to Defendant’s asbestos-containing products through her brother, father, and ex-husband, some of the exposures may have resulted from the use of an arc grinder from Defendant, Debra Manns’ relatives may have used a power brake grinder from Defendant, Defendant knew or should have known that the grinders would cause asbestos fibers to be released, and Defendant failed to warn Debra Mann about the danger. (Rabin Decl., Ex. O at pp. 4, 5, 7, 8, 10.) The responses state Defendant’s conduct was engaged in, authorized, or ratified by an officer, director, or managing agent of Defendant, but the responses do not identify any particular witness or evidence of this. (Id. at pp. 10, 33-34.) These are allegations. The responses do not cite any actual evidence. Plaintiffs’ deposition testimony was also devoid of evidence supporting the punitive damages claim. The factually-devoid responses shifts the burden.

Plaintiffs present evidence that Debra Mann’s former husband, Lynn Papworth, did brake work and used a brake grinder starting in 1963, and used Defendant’s grinder. (Plaintiffs’ Undisputed Material Facts (“PUMF”) 5, 6.) Plaintiffs argue Defendant knew its grinders would be used on asbestos-containing brake drum linings and dust would result, Defendant commissioned studies about asbestos exposure from the use of its grinders, the studies showed excessive exposure to asbestos, Defendant did not tell customers about the studies, and Defendant’s managing agents made the decisions about the grinders. Plaintiffs rely on the testimony of Craig Mountz. He testified Defendant’s grinder it began selling in 1950 was designed to grind brake linings only, brake linings had asbestos in the 1950s and 1960s, Defendant knew its grinders created dust, Defendant first did testing of its grinders for dust in 1973 after OSHA issued regulations in 1972, Defendant discussed the hazards of asbestos dust in a 1973 patent application, and Defendant first put a warning on its product in 1973. (Eyerly Decl., Ex. 10 at pp. 29, 32, 39-40, 63, 66, 126-127; Ex. 11 at pp. 57, 60-61; Ex. 12 at pp. 57-58, 62, 115-117, 168.)

Defendant contends that Plaintiffs’ evidence of Defendant’s knowledge and conduct after 1965 is irrelevant because Lynn Papworth only worked with Defendant’s grinders from 1963 to 1965. (Reply at p. 3.) Defendant cites Papworth’s deposition testimony attached as Exhibits 1 and 2 to the Rabin Declaration, but no such declaration was filed. Also, Defendant raised the time period for the first time in their reply.

Therefore, the court continues the hearing on the motion for summary adjudication to March 30, 2023 at 9 a.m. Defendant is to file and serve the Rabin Declaration with attached Exhibits by March 13, 2023. Plaintiffs may file a supplemental opposition of no more than 5 pages addressing the time period issue and evidence attached to the Rabin Declaration by March 27, 2023.

The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiffs allege Debra Manns was injured as a result of exposure to asbestos-containing products from Defendant W.W. Henry Company, LLC (“Defendant”). Defendant filed a motion for summary adjudication on the grounds that Plaintiffs cannot have no evidence supporting the claim for punitive damages.

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’ discovery responses are factually devoid. Defendant served special interrogatories asking for all facts and the identities of people with knowledge supporting the claim for punitive damages. (Tabuena Decl., Ex. C at p. 4.) Plaintiffs responded that Debra Manns was exposed to asbestos-containing products through her family members who did construction work, including roofing mastic and joint compound from Defendant, Defendant knew in 1981 that asbestos was hazardous but did not warn of the danger, Defendant acted with malice in failing to adequately warn, and Defendant’s conduct was engaged in, authorized, or ratified by an officer, director, or managing agent of Defendant (Id., Ex. D at pp. 18-19, 20, 22-23.) Except for the specific evidence that in 1981 Defendant knew of the dangers of asbestos, these are allegations, and the responses do not cite any actual evidence. The factually-devoid responses shifts the burden.

Plaintiffs cite to the deposition of Lori Angelo testifying as Defendant’s corporate representative. (Plaintiffs’ Response to Defendant’s Undisputed Material Fact 11.) She stated that until 1981, the roofing products contained asbestos, it is common knowledge that asbestos causes lung diseases, she does not know if Defendant had conducted any studies as of 1972 about asbestos in the air from the use of Defendant’s products causing mesothelioma, and she has not seen asbestos warnings on Defendant’s roofing products. (Eyerly Decl., Ex. 2 at pp. 9, 19, 20, 36, 80, 85.) This testimony does not show Defendant knew of the danger of asbestos in its roofing products to users of those products during the time when Debra Manns and her former husband used the products, or that Defendant’s management made decisions not to give warnings or withdraw the product.

Plaintiffs also cite Defendant’s response to Interrogatory No. 30 in another case. (Plaintiffs’ Response to Defendant’s Undisputed Material Fact 11.) That interrogatory asked if Defendant every conducted or sponsored any research or studies on exposure or release of asbestos. The response was “not to its current knowledge.” (Eyerly Decl., Ex. 3 at pp. 27, 28.) That response does not show any fact supporting the punitive damages claim.

Finally, Plaintiffs cite a 1975 letter. (Plaintiffs’ Response to Defendant’s Undisputed Material Fact 11.) That letter is from someone at Mobile Oil to Williams Lumber Co. about air tests concerning a plastic roof cement. (Eyerly Decl., Ex. 4. ) Plaintiffs claim that Williams Lumber Co. is Defendant (Opposition at p. 2), but there is no evidence of that. Nor is there evidence about who at Williams Lumber Co. received this letter and what if anything resulted from the letter. Plaintiffs also assert that after receiving this letter, Defendant conducted tests of its products, but Plaintiffs again fail to cite any such evidence. (Opposition at p. 2.)

Plaintiffs failed to show disputed facts that Defendant knew its asbestos-containing products were hazardous at the time Debra Manns was exposed to them or that Defendant made a management or corporate decision not to give warnings or otherwise protect users.

The motion for summary adjudication is granted.

The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiffs
allege Debra Manns was injured as a result of exposure to asbestos-containing
products, including from asbestos in talc supplied by Defendant Pfizer Inc
(“Defendant”). Defendant filed a motion
for summary judgment and summary adjudication on the grounds that Plaintiffs
cannot prove Defendant supplied any asbestos-containing products to which Manns
was exposed, cannot prove their premises liability cause of action, and have no
evidence supporting punitive damages.

A. Objections

Defendant’s
Objections

Nos.
1-3, 8, 9, 11, 14: Overruled.

Nos. 4,
5, 6, 7, 12, 13, 15: The court did not
rely on this evidence.

No.
10: Sustained. In
Berroteran v. Superior Court, the California Supreme Court explained
that Evidence Code section 1291 treats former deposition testimony differently
than former trial testimony. (Berroteran
v. Superior Court (2022) 12 Cal. 5th 867, 891.) “The party urging admission of deposition
testimony bears the burden of rebutting the general rule by submitting
appropriate information justifying the admission of designated deposition
testimony.” (Id. at p. 895.) The Berroteran court outlined the
following factors to consider in determining whether former deposition
testimony is admissible under section 1291:
(a) whether the parties intended at the outset that the deposition serve
as trial testimony; (b) whether the parties subsequently reached agreement to
use the deposition at the trial in that earlier case or in other cases; and (c)
other practical considerations such as the timing of the deposition in the
earlier litigation, whether a mediation or settlement conference was scheduled
for after the deposition, the closeness in relationship between the opposing
party and deponent, the anticipated availability of the deponent in the earlier
case, whether a statutory rule such as Code of Civil Procedure section allowed
the parties to use the deposition at the earlier trial, the extent of
cross-examination in the deposition, the particular designated testimony, and
the similarity of the lawsuits.

Defendant states it was not present at the deposition. There is nothing in the transcript excerpts provided
by Plaintiffs to suggest that the parties intended the deposition to serve as
trial testimony or reached such an agreement.
Plaintiffs provided no evidence about the parties taking the deposition
and whether they had similar interests and motives to Defendant’s interest in
this case. According to Plaintiffs, the
deponent was Hamilton’s corporate representative. The caption pages of the transcript state the
deponent was testifying as a custodian of records. It appears from the excerpts that the witness
formed Hamilton. If that was the case,
then Hamilton and other parties could anticipate the witness would appear at
trial and would have no incentive to cross-examine the witness. Plaintiffs did not provide any evidence about
the extent of cross-examination or the similarity of lawsuits. Plaintiffs did not satisfy their burden under
Berroteran.

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
argues Plaintiffs have no evidence that Manns used any product containing
Pfizer talc that contained asbestos, pointing to Plaintiff’s interrogatory
responses as factually devoid. (Motion
at p. 7.) Special Interrogatory No. 1
asked for all facts supporting the contention that the asbestos came from a
Pfizer product. (Undisputed Material
Fact “UMF”) 3.) In that response,
Plaintiffs state Mann was exposed to caulking, joint compound, roof materials,
and stuccos made with Pfizer talc that containing asbestos, as well as from
cosmetics, hairdryers, and bowling balls and supplies containing Pfizer’s talc. (Kadaba Decl., Ex. E at pp. 4, 5, 6.) The response does not cite any actual
evidence for these assertions. This
response is factually-devoid and shifts the burden to Plaintiffs on this issue.

Defendant
acknowledges Debra Manns’ former husband, Lynn Papworth, used Hamilton brand
joint compound at his work and home. (Motion
at p. 9.) Plaintiffs cite to Papworth’s
deposition where he testified he did remodeling work on their home in the 1970
to 1978 period, and he used Hamilton joint compound. (Plaintiffs’ Undisputed Material Facts “PUMF”
7; Eyerly Decl., Ex. 1 at pp. 67-68, 71, 75, 77, 78, 79.) Plaintiffs contend Hamilton joint compound
contained asbestos-contaminated talc from Defendant.

Defendant
argues Plaintiffs cannot prove Manns was exposed to talc in a Hamilton joint
compound product because not all such products contained talc. (Motion at p. 10.) And Defendant argues that Plaintiffs have no
evidence that any talc in a Hamilton joint compound product was from Pfizer. (Motion at p. 12.) Plaintiffs cite a 1982 Pfizer memo stating
“Hamilton uses our talc in their joint cement” and an analysis showed asbestos
in Hamilton’s talc. (PUMF 34, 35; Eyerly
Decl., Ex. 11 at ¶ 15, Ex. 15.) (Pfizer
objected that Exhibit 15 lacks foundation, is not authenticated, and is
hearsay. The documents contains a Pfizer
Bates-stamp indicating it came from Pfizer’s files, and on its face it contains
indicia that it is a statement of Pfizer personnel about Pfizer’s
business. As such, it is not
inadmissible hearsay.) This evidence is
sufficient to create a disputed issue of fact regarding whether the Hamilton
joint compound product used by Manns contained Defendant’s talc contaminated
with asbestos.

Defendant
argues Plaintiffs cannot prove exposure to asbestos from Defendant was a
substantial factor in causing the injury.
(Motion at p.15.) Whether Manns’
exposure to Hamilton joint compound products containing asbestos when her former
husband was working on their house was a substantial factor is a matter for the
jury to decide.

The
motion for summary judgment is denied.

C. Summary Adjudication

Plaintiffs appear to
concede they have no premises liability claim against Defendant. If Plaintiffs are asserting premises
liability against Defendant, they need to explain how Defendant controlled the
homes where Manns was allegedly exposed.

Defendant argues
Plaintiffs cannot prove the malice, fraud or oppression necessary for punitive
damages. (Motion at p. 17.) 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.)

“ ‘[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.) On the other hand, a defendant’s knowledge of
trace amounts of asbestos in talc does not necessarily mean that the defendant
knew the asbestos in talc “would cause a high probability of injury.” (McNeal v. Whittaker, Clark & Daniels,
Inc. (2022) 80 Cal.App.5th 853, 873.)

Defendant points to Plaintiffs’ responses to discovery
asking for all facts, documents, and identity of persons supporting the claim
for punitive damages against Defendant.
(UMF 29.) Plaintiffs’ response does
not cite evidence showing Defendant knew the talc it was selling during the
relevant time period contained asbestos that, when incorporated into the
products at issue, would cause a high probability of injury to its customers. (Kadaba Decl., Ex. E at pp. 14-17.) Defendant has satisfied its initial burden,
and the burden shifts to Plaintiffs.

Plaintiffs argue Defendant knew its talc contained
asbestos, knew about the dangers of asbestos, and failed to give warnings. (Opposition at p. 16.) Plaintiffs cite PUMF 26, 27, 28. (Opposition at p. 16.) PUMF 26 states Defendant sold talc until
1987. PUMF 27 states Defendant did not
place warnings on its product. PUMF 28
states Defendant was aware about the hazards of asbestos no later than
1972. Plaintiffs also refer to PUMF 21
and 22. (Opposition at p. 20.) PUMF 21 and 22 cite a February 1977 letter
from the president of Pfizer to Goodyear Tire discussing OSHA regulations for
employee exposure. The letter does not
refer to consumers using consumer products. Plaintiffs’ evidence is not clear and
convincing proof that during the time Manns was exposed to Hamilton joint
compound products containing Defendant’s talc, Defendant knew that the asbestos
in the talc in joint compound products could cause injury to users and then
made a decision at the management level not to provide a warning.

Therefore, summary adjudication is granted.

The
motion for summary judgment is DENIED.
The motion for summary adjudication is GRANTED as to the request for
punitive damages and the premises liability cause of action.

The
moving party is to give notice.