Judge: Laura A. Seigle, Case: 21STCV23911, Date: 2023-02-09 Tentative Ruling

Case Number: 21STCV23911    Hearing Date: February 9, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiff Martha Ramos alleges Jesse Ramos was exposed to asbestos supplied by Defendant Calaveras Asbestos, Ltd.  Defendant moved for summary judgment on the ground that Plaintiff has no evidence of exposure from a product containing its asbestos.  Plaintiff did not file an opposition.

Defendant requests judicial notice of (1) 42 U.S.C. § 7412(d); (2) Federal Register Citations Pertaining to the Regulation of Asbestos, dated April 1979; (3) 38 FR 8820-01, Apr. 6, 1973; (4) 39 FR 38064-01, Oct. 25, 1974; (5) 40 C.F.R. Pt. 61; 40 FR 48292, Oct. 14, 1975; (6) EPA Asbestos Materials Bans: Clarification § II.B; and (7) Defendant JM Manufacturing Company, Inc.’s Responses to Standard Interrogatories.  Plaintiff did not object. The court takes judicial notice of the documents in accordance with Evidence Code section 452, subds. (b), (c) and (d).

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 Plaintiff’s responses to interrogatories asking for all facts supporting Plaintiff’s contention that Jesse Ramos was exposed to Defendant’s asbestos.  (Motion at pp. 2-3.)  Plaintiff responded he was exposed while working at various work sites as a plumber, performing HVAC work, and as a pipefitter-steamfitter.  (Undisputed Material Fact (“UMF”) 1.)  Plaintiff identified Plaintiff, Gerald Doss, John Tickenoff, and Jack Montijo as witnesses.  (Robles Decl., Ex. D at p. 10.)  The responses also list generic documents such as Defendant’s interrogatory responses, Defendant’s asbestos fiber invoices, scientific publications, safety regulations, Decedent’s employment and medical records, articles, affidavits, and deposition transcripts.  (Id. at pp. 10-14.)  The response did not specify evidence supporting the allegations of exposure to Defendant’s asbestos.  (UMF 4-5.)  Plaintiff did not specify any product that contained Defendant’s asbestos fiber. 

Plaintiff stipulated that she had no product identification testimony against any Defendant.  (Motion at p. 3; Robles Decl., Ex. E, at p. 6.)  Gerald Doss, John Tickenoff, and Jack Montijo could not recall or identify any brand names, manufacturers, or suppliers of any products or equipment that Decedent may have worked with at his work sites.  (UMF 10-12, 17-19, 23.)  Jack Montijo only recalled seeing the Johns-Manville logo on new insulation material installed by insulators.  (Motion at p. 1; UMF 26)

Defendant argues that it never supplied asbestos fiber to Johns-Manville’s Long Beach plant which supplied products to Southern California area where Decedent worked.  (Motion at pp. 5, 13; UMF 35, 40; Larsen Decl., ¶8.)  Defendant also asserts that even if Johns-Manville insulation material was manufactured at the Johns-Manville Stockton plant, Defendant was only a minor supplier to the Stockton plant, which supplied products to Northern California area.  (Motion at pp. 6, 13.)  Defendant cites to Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, where the court found that the plaintiff’s exposure to Union Carbide’s asbestos fiber through the use of Kelly-Moore was speculative because Union Carbide was a minor supplier.  (Izell, supra, 231 Cal.App.4th at p. 392.)  Defendant contends that the calculations made by Henry Blechar, a former employee of Johns-Manville, indicate Defendant was only a minority supplier of asbestos fiber to the Stockton plant, like Union Carbide in Izell.  (UMF 43-44; Motion at pp. 5-6.)

Defendant has shown Plaintiff does not have and cannot obtain evidence that Jesse Ramos worked with products containing Defendant’s asbestos fiber and that evidence of exposure via Johns-Manville insulation is speculative.  The burden shifts to Plaintiff.  Because Plaintiff did not file an opposition, Plaintiff did not show any disputed issue of material 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.