Judge: Laura A. Seigle, Case: 21STCV16240, Date: 2023-04-04 Tentative Ruling

Case Number: 21STCV16240    Hearing Date: April 4, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Plaintiffs allege Debra Manns was injured as a result of exposure to asbestos from products from Sunbeam Products, Inc. (“Defendant”).  Defendant filed a motion for summary judgment on the ground that Plaintiffs have no evidence of exposure to a Sunbeam product.

            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.)

            Plaintiffs contend Debra Manns was exposed to asbestos at her beauty supply shop from a product from Defendant.  (Undisputed Material Fact “UMF”) 3.)  Defendant argues that Debra Manns former husband testified the couple’s beauty supplies show did not carry Defendant’s products, and a daughter testified she did not recall her parents working on a Sunbeam hairdryer.  (UMF 9, 13, 15.)  Specifically, the daughter testified that she remembered the Sunbeam name but could not be positive whether she had seen her parents working on a Sunbeam dryer.  (UMF 15.) 

            Assuming this is sufficient to shift the burden, Plaintiffs submitted evidence showing the existence of a disputed fact.  The daughter testified she saw Debra Manns fixing hair dryers, and Manns used and repaired Sunbeam hair dryers.  (Brown Decl., Ex. A at pp. 22, 32-33, 34; Ex. C at pp. 465, 467.)  The daughter explained that when she had testified that she could not be positive whether she had seen her parents working on a Sunbeam dryer, she was extremely tired, emotional and confused.  (Brown Decl., Ex. C at pp. 491-492.)  This testimony is sufficient to create a disputed issue of material fact.  The motion for summary judgment is denied.

            Defendant also moves for summary adjudication of the punitive damages claims.  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’ response to a special interrogatory asking for all facts supporting their punitive damages claim is factually devoid.  The response states Defendant knew about the hazards of asbestos and did not give warnings.  (Index, Ex. 3 at p. 6.)  The response is conclusory and does not cite any specific evidence.  Defendant shifted the burden.

            Plaintiffs ague they served a notice for Defendant’s deposition on issues relating to the punitive damages claim on January 12, 2023, but Defendant failed to make a witness available, even after participating in two informal discovery conferences.  Defendant stated at the IDC that the witness was not available until March 29, 2023, long after Plaintiff’s opposition to the motion for summary judgment was due.  It should not take 2.5 months to make a witness available for a deposition.  Because Defendant failed to make its witness available for a deposition on issues relating to the punitive damages claim after being served with a timely notice, Defendant’s motion for summary adjudication is denied pursuant to Code of Civil Procedure section 439(c), subdivision (h).

            The motion is DENIED.

            The moving party is to give notice.