Judge: Laura A. Seigle, Case: 21STCV23802, Date: 2022-08-19 Tentative Ruling

Case Number: 21STCV23802    Hearing Date: August 19, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Defendant Ralphs Grocery Company filed a motion for summary judgment on the ground that Plaintiff Janis Jolcuvar cannot prove she was exposed to any asbestos-containing product sold or delivered by Ralphs.  Plaintiffs stipulated that they will not offer any testimony identifying any product sold or delivered by Ralphs that caused them injury.  (Undisputed Material Fact (“UMF”) 16.)  At her deposition, Jolucvar could not recall ever purchasing any powder or makeup product from Ralphs.  (UMF 6-12.)  Plaintiffs filed a notice of non-opposition.

            Defendant satisfied its initial burden of showing Plaintiffs do not have evidence Ralphs sold or delivered to them any asbestos-containing product.  Because Plaintiffs did not oppose, they failed to show any disputed issue for trial.

            Therefore, summary judgment is granted for Ralphs.

            The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

Plaintiff Janis Jolcuvar was diagnosed in March 2021 with malignant pleural mesothelioma.  Plaintiffs allege that she developed mesothelioma as a result of life-long exposure to the defendants’ asbestos-containing products, asbestos-containing talc, and finished and unfinished asbestos-containing talcum powder.  Specifically, Plaintiffs allege Janis Jolcuvar purchased and used Defendant Chanel, Inc.’s products, including Chanel No. 5 talcum body powder, blushes and eyeshadows, for decades between 1977 and 2021, powdering herself thousands of times for 44 years.

      Chanel moves for summary adjudication of Plaintiffs’ claim for punitive damages on the ground there is no evidence any officer, director, or managing agent of Chanel acted with malice, oppression, or fraud.  (Motion at p. 1-2).  Chanel argues Plaintiffs’ responses to Chanel’s discovery related to punitive damages are factually devoid on this point.

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.)

Under Civil Code section 3294, subdivision (b), “[w]ith respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, malice must be on the part of an officer, director, or managing agent of the corporation.”

Defendant cites to Plaintiffs’ responses to Special Interrogatory Nos. 7 and 8, Request for Production Nos. 1 and 12, and the deposition testimony of Janis Joculvar in support of its argument.  [UMF Nos. 7-15].   

Interrogatory No. 7 asked for all witnesses with knowledge about Plaintiffs’ claims.  Interrogatory No. 8 asked for all facts supporting the claim for punitive damages.  In response, Plaintiffs incorporated the response to Interrogatory No. 5 and gave vague answers about Chanel’s knowledge.  (Ex. B at p. 10.)  Plaintiffs stated Defendant had not yet produced documents or identified witnesses.  (Id.  at p. 10.)  In addition to identifying Janis Joculvar as a witness, Plaintiffs’ responses to special interrogatory No. 8 also identifies Defendant’s person most knowledgeable, corporate representatives, employees, and officers as well as Defendant’s corporate records.  (Id. at p. 9.)  The responses to Requests for Production Nos. 1 and 12 identify the same studies, trade articles, and corporate records.  (Exs. D, E.)  At her deposition, Janis Joculvar testified she has no specific knowledge of Chanel’s knowledge and failure to warn.

These discovery responses do not show Plaintiffs do not possess, and cannot reasonably obtain, needed evidence.  Rather the responses indicate the parties were in the middle of discovery and Plaintiffs had not yet received discovery from Defendant that could provide evidence of Chanel’s knowledge, malice, deceit and/or conscious disregard. 

Defendant also argues that “[a] defendant cannot act with the requisite malice, oppression, or fraud if there is no scientific consensus connecting a product to a disease,” and “[t]here is certainly no scientific consensus that Chanel talcum powder products ever contained asbestos.”  (Motion at p. 8.)  Defendant cites Echeverria v. Johnson & Johnson (2019) 37 Cal.Ap.5th 292 for this proposition.  That case discussed the lack of “direct, conclusive evidence establishing genital talc use causes ovarian cancer.”  (Id. at p. 333.)  That case was not about asbestos in talcum powder causing mesothelioma.  Here, Plaintiffs do not allege Chanel’s product caused ovarian cancer.  Rather Plaintiffs allege asbestos in the talc caused Plaintiff’s mesothelioma.  It is not disputed that asbestos causes mesothelioma.  
The motion summary adjudication is DENIED. The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

            Defendant Bristol-Myers Squibb Company (“Defendant” or "BMS") brings this motion for summary adjudication of Plaintiffs Janis Jolcuvar and Dennis Bishop’s claim for punitive damages.  Defendant argues Plaintiffs have no evidence Defendant knew about asbestos in the talcum powder products. 

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 points to Plaintiffs’ responses to document requests and special interrogatories asking for all documents and evidence supporting the claim for punitive damages.  (Motion at p. 6; Undisputed Material Fact (“UMF”) 1-5.)  However, the exhibits to the Declaration of Michael B. Giaquinto in Support of BMS’ Motion for Summary Adjudication consist of discovery from and to Longs Drug Stores.  Specifically, the Giaquinto Declaration states Exhibit A is BMS’ Special Interrogatories, but the attached Exhibit A is Longs’ Special Interrogatories.  The declaration states Exhibit B is BMS’ Request for Production of Documents Set Two, but the attached Exhibit B is Longs’ Request for Production Set One.  The declaration states Exhibit C is Plaintiffs’ Responses to BMS’ Special Interrogatories, but the attached Exhibit C is Longs’ Request for Admissions.  The declaration states Exhibit D is Plaintiffs’ Responses to BMS’ Request for Production of Documents Set Two, but the attached Exhibit D is Plaintiffs’ Responses to Longs’ Special Interrogatories.  The declaration states Exhibit E is Plaintiff’s deposition transcript, but the attached Exhibit E is Plaintiff’s Responses to Longs’ Requests for Production.  (The transcript of Plaintiff’s deposition is attached as Exhibit G, although the declaration does not mention Exhibit G.)  The declaration states Exhibit F is a deposition transcript of Robert Weiss, but the attached Exhibit F is Plaintiff’s Responses to Longs’ Requests for Admissions. 

            Defendant’s reply states there were a few typos in the exhibits.  (Reply at p. 3)  That is not correct.  Each of the exhibits attached to the declaration is a completely different document from the exhibit described in the declaration.  And none of the attached discovery and discovery responses refers to BMS.  Also, the pages from Plaintiff’s deposition attached as Exhibit G (pages 260-267, 270-271) do not include the pages Defendant cites in UMF 6 and 7 (pages 268-269).

            In sum, Defendant failed to file the evidence supporting its motion and cited in its Separate Statement of Undisputed Material Facts.  Due to the lack of evidence, Defendant cannot satisfy its initial burden.

            The motion is DENIED.

            The moving party is to give notice.