Judge Laura A. Seigle, Case 21STCV23911 2023-02-10 Tentative Ruling

Judge: Laura A. Seigle, Case: 21STCV23911, Date: 2023-02-10 Tentative Ruling

Case Number: 21STCV23911 Hearing Date: February 10, 2023 Dept: 15

[TENTATIVE] ORDERS RE MOTIONS FOR SUMMARY JUDGMENT

Defendants Baltimore Aircoil Company, SPX Cooling Technologies, LLC, Nibco, Inc., and Foster Wheeler LLC filed motions for 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.)

I. Baltimore Aircoil’s Motion

Defendant Baltimore Aircoil argues that Plaintiff Martha Ramos cannot prove her husband Jesse Ramos was exposed to asbestos from any of Defendant’s products. Defendant cites to Plaintiff’s response to Defendant’s interrogatory asking for all facts supporting the contention that Jesse Ramos was exposed to asbestos from Defendant’s products. (Index, Ex. C at p. 4.) In response, Plaintiff asserted without specific evidence that Defendant was exposed to asbestos from Defendant’s products. (Id. at p. 5.) Plaintiff identified Plaintiff and three other individuals by name as witnesses (Gerald Doss, John Tickenoff, and Jack Montijo). (Id. at p. 12.) Doss testified he never saw Jesse Ramos work on Defendant’s products. (Undisputed Material Fact (“UMF”) 5-9.) Jack Montijo testified he has no information that Jesse Ramos worked on Defendant’s products. (UMF 14, 18.) John Tickenoff testified he does not know whether Jesse Ramos worked on Defendant’s product. (UMF 26, 27.) Plaintiff stipulated she has no information about product exposure. (UMF 25.)

This evidence is sufficient to satisfy Defendant’s burden of showing Plaintiff lacks evidence, and cannot obtain evidence, to prove exposure from Defendant’s products and to shift the burden. Because Plaintiff did not file an opposition, she did not show the existence of a disputed issue of fact.

Summary judgment is GRANTED. Defendant is to file a proposed judgment within five days.

II. SPX Cooling Technologies, LLC

Defendant SPX Cooling Technologies, LLC argues that Plaintiff Martha Ramos cannot prove her husband was exposed to asbestos from Defendant’s cooling towers. Defendant’s objections are overruled.

Defendant cites to Plaintiff’s response to special interrogatory No. 1 asking for all facts supporting the contention that Jesse Ramos was exposed to asbestos from Defendant’s products. (Estrada Decl., Ex. C at p. 4.) In response, Plaintiff asserted without specific evidence that Defendant was exposed to asbestos from Defendant’s products. (Id. at p. 5.) Plaintiff identified Plaintiff and three other individuals by name as witnesses (Gerald Doss, John Tickenoff, and Jack Montijo). (Id. at p. 12.) Plaintiff stipulated she has no knowledge about exposure from Defendant’s products. (Undisputed Material Fact (“UMF”) 10.)

Gerald Doss testified he worked with Jesse Ramos, he did not see Jesse Ramos work on a cooling tower or work near other people working on a cooling tower, he does not know if Jess Ramos worked on products from Marely Cooling Tower Company, and the cooling towers were not in the area where they were working. (Estrada Decl., Ex. F at pp. 19-20, 95-96, 104.) John Tickenoff testified he worked with Jesse Ramos, he does not know if Jess Ramos worked on any product from SPX Cooling, he does not know if Jesse Ramos ever worked on Marely cooling towers, Jesse Ramos was within 50 feet of an old wooden cooling tower being removed at Powerine but he does not know if they were Marley towers, and he does not know who made the new tower at Powerine. (Estrada Decl., Ex. G at pp. 26, 93, 94-97, 99, 102, 105, 106, 110.) Jack Montijo testified he worked with Jesse Ramos, Ramos worked near the Standard Oil cooling towers but he does not know who made those towers, he has never heard of SPX Cooling, and he does not associate Marley with any job site where he worked with Jesse Ramos. (Estrada Decl., Ex. H at pp. 21, 61, 65.)

Defendant has satisfied its burden of showing that Plaintiffs do not have and cannot obtain evidence that Jesse Ramos was exposed to asbestos from Defendant’s products. The burden shifts to Plaintiff.

In opposition, Plaintiff argues there is a triable issue because Doss and Tickenoff testified the cooling towers could have been Marely towers. (Motion at pp. 5-6.) In her response to Defendant’s Separate Statement, Plaintiff cites pages 104 and 123 of Doss testimony. (Response to UMF 11, 13.) At page 104, Doss stated Jess Ramos was present at sites with either Marley or Baltimore cooling towers. At page 123, Doss testified he never noticed whether the cooling towers at any particular site were Baltimore or Marley – “they did have the names, and I didn’t notice if it was a Marley or a Baltimore.” This evidence does not show the existence of a disputed issue. Whether the cooling towers were Marley towers remains a toss-up based on the equivocal testimony, and in any event this testimony does not establish that Jess Ramos worked on or near those towers at a particular site.

Plaintiff also cites Tickenoff’s testimony at pages 66-67, where the witness testified he recalled cooling towers with the Marley and Baltimore brands. (Response to UMF 14-17.) Plaintiff cites Tickenoff’s testimony at pages 96-97 that at the Powerine location, Ramos was near an old wooden cooling tower being removed. (Response to UMF 18.) This testimony does not establish the existence of a disputed issue because it is not evidence that the cooling tower being removed at Powerine was a Marley tower. To the contrary, Tickenoff testified that he does not recall if any of the cooling towers at Powerine were Marley towers. (Estrada Decl., Ex. G at p. 94.) He testified that he did not know the manufacturer of the old cooling towers being demolished or the new cooling towers being installed at Powerine. (Id. at pp. 99, 105-106.) He testified that he does not know who supplied the cooling towers he and Jesse Ramos worked around. (Id. at p. 110.)

Plaintiff has not shown she can prove that Jesse Ramos worked on or near asbestos-containing cooling towers from Defendant. Therefore, summary judgment is GRANTED. Defendant is to file a proposed judgment within five days.

III. Nibco, Inc.

A. Summary Judgment

Defendant Nibco, Inc. argues Plaintiff cannot prove Jesse Ramos was exposed to an asbestos-containing product from Defendant. Defendant cites to Plaintiff’s response to special interrogatory No. 1 asking for all facts supporting Plaintiff’s contention that Jesse Ramos was exposed to asbestos from Defendant’s products. (Smith Decl., Ex. C at p. 4.) In response, Plaintiff stated Jesse Ramos was exposed to asbestos in Defendant’s valves, packing, fittings and other products. (Id. at p. 5.) This response is conclusory and does not provide any specific evidence. Plaintiff also identified Plaintiff and three other individuals by name as witnesses (Gerald Doss, John Tickenoff, and Jack Montijo). (Id. at p. 12.)

Defendant cites to Doss’ testimony that he does not remember Jesse Ramos working with Defendant’s valves. (Smith Decl., Ex. D at p. 36.) Defendant cites Montijo’s testimony that he could not say whether Jesse Ramos worked on a Nibco valve and that he did not see other people working on Nibco valves when Ramos was around. (Smith Decl., Ex. E at pp. 143-144.) Defendant cites Tickenoff’s testimony that he knows Nibco makes valves, Jesse Ramos worked with and around 50 to 100 Nibco valves at Powerine in 1982, he does not know when those valves were installed, he does not know whether the packing material was original, and he does not know the manufacturer of replacement packing material. (Smith Decl., Ex. F at pp. 39, 40, 43-44.) These discovery responses are not factually devoid as they establish that Jess Ramos worked with and around Nibco’s valves in 1982. Defendant did not show that Plaintiff cannot obtain evidence, such as from an expert, that those products contained asbestos.

Therefore, the motion for summary judgment is denied.

B. Summary Adjudication

Defendant moves for summary adjudication of the third and fourth causes of action for false misrepresentation and intentional tort. Plaintiff states she does not oppose this motion. (Opposition at p. 4.) Therefore, summary adjudication is granted as to the third and fourth causes of action.

Defendant moves for summary adjudication of the punitive damages claim on the ground that Plaintiff has no evidence Defendant acted with malice fraud or oppression. 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, 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 cites Plaintiff’s response to an interrogatory asking for all facts supporting the punitive damages claim, in which Plaintiff stated in conclusory fashion that Defendant continued to sell products without warnings after learning about the dangers of asbestos. (Smith Decl., Ex. C at pp. 11, 30.) This response is factually devoid and shifts the burden.

In opposition, Plaintiff claims Defendant intentionally delayed shifting to non-asbestos components, citing to an Exhibit E. (Opposition at pp. 13-14.) Exhibit E is a May 15, 1981 interoffice memo at Defendant from an unidentified person named Glenn Pauley to another unidentified person named Al Hejl. It states “For the present at least, it would seem appropriate to follow a ‘wait and see’ attitude rather than making a substitute,” no substitutes were “cost effective,” and “The MSS and Federal Standards still specify asbestos.” (Maranwe Decl., Ex. E.) This evidence does not show Defendant knew its valves were likely to pose a danger to users. For example, Plaintiff did not show that Defendant took action to protect its own employees but declined to warn users.

Plaintiff’s response to Defendant’s Separate Statement also cites Exhibits F and G. Exhibit F is a September 13, 1985 Nibco interoffice memo from someone named Tony Beyer to a Ken Pletcher about finding asbestos-free substitutes. It states that the current standard for valves “does not allow any packing material other than asbestos base material” and that efforts are being made to change the specification. (Maranwe Decl., Ex. F at pp. 1-2.) Exhibit G is an internal memo to and from unidentified people about the Veterans Administration’s stand on asbestos packing and gaskets. These memos do not state that Defendant’s valves were likely to pose a danger to users.

Nor do the memos in Exhibits E, F and G show that an officer, director, or managing agent of Defendant knew the valves were likely to pose a danger to users and nevertheless decided not to warn users and not to substitute out asbestos, or that Defendant formulated such a corporate policy. Plaintiffs did not show with evidence such a decision being made at the corporate management level.

The motion for summary judgment is DENIED. The motion for summary adjudication of the third and fourth causes of action and the claim for punitive damages is GRANTED.

IV. Foster Wheeler LLC

A. Summary Judgment

Defendant Foster Wheeler LLC argues Plaintiff cannot prove Jesse Ramos was exposed to an asbestos-containing product from Defendant. Defendant cites to Plaintiff’s response to an interrogatory asking for all facts supporting the contention that Jess Ramos was exposed to an asbestos containing product from Defendant. (Bugatto Decl., Ex. C at p. 4.) Plaintiff responded that Jesse Ramos was exposed to Defendant’s asbestos-containing “boilers, boiler components, gaskets, pumps, seals, insulation, valves, steel drums, steam generators, steel drums [sic] and other asbestos containing parts” and worked near others who were working with Defendant’s asbestos-containing parts. (Id. at pp. 5-6.) The response contained no specific evidence supporting these allegations.

The response identified Plaintiff and three other individuals by name as witnesses (Gerald Doss, John Tickenoff, and Jack Montijo). (Id. at p. 12.) Plaintiff stipulated that she has no product identification testimony. (Undisputed Material Fact (“UMF”) 9.) Doss testified that in 1982 or 1983 he saw Jess Ramos working around an old boiler from Defendant, but he does not remember if anyone was performing work on the boiler. (Supp. Bugatto Decl., Ex. E at pp. 39-40, 42.) Tickenoff testified that he does not know if Jesse Ramos ever worked in the vicinity of any Foster Wheeler employee. (Supp. Bugatto Decl., Ex. F at pp. 50-51.) Montijo testified he does not know if Jesse Ramos worked on or around any equipment made by Defendant. (Supp. Bugatto Decl., Ex. G at p. 50.) This evidence is sufficient to show that Plaintiff does not have and cannot obtain evidence proving exposure by a product from Defendant.

Plaintiff argues that when Doss and Jesse Ramos were working near Defendant’s boiler, insulators were removing brick from the floor of the boiler. (Opposition at p. 4.) Doss testified that he and Jesse Ramos worked at Union Oil, at that time Union Oil was replacing brick on a Foster Wheeler boiler, the boiler was in the main pathway, the work on the boiler made the air dusty, and Jesse Ramos was doing similar work as Doss at Union Oil. (Maranwe Decl., Ex. D at pp. 31-32, 39, 113, 115.) This evidence shows the existence of a disputed issue regarding whether the work on Defendant’s boiler exposed Jesse Ramos to asbestos.

The motion for summary judgment is denied.

B. Summary Adjudication

Defendant cites Plaintiff’s response to an interrogatory asking for all facts supporting the punitive damages claim, in which Plaintiff states in conclusory fashion that Defendant continued to sell products without warnings after learning about the dangers of asbestos. (Bugatto Decl., Ex. C at pp. 11, 36.) This response is factually devoid and shifts the burden.

In opposition, Plaintiff argues that an employee of Defendant learned about the dangers of asbestos in 1968, but did not issue a warning and did not require breathing protection for employees. (Opposition at p. 14.) In support of this argument, Plaintiff cites to Defendant’s interrogatory response stating its employee received information concerning potential health hazards in 1968. (Plaintiff’s Additional Undisputed Fact 1; Maranwe Decl., Ex. H at p. 10.) Plaintiff also cites an affidavit of a former employee, Walter Newitts, who stated that an engineer working for Defendant attended a meeting in May 1968 and then wrote a memo to him and various of Defendant’s vice presidents about the dangers of asbestos. (Plaintiff’s Additional Undisputed Fact 2; Maranwe Decl., Ex. H at pp. 4-5.) Newitts states that after the memo was circulated he did not see Defendant take steps to protect people working near Defendant’s equipment. (Id. at p. 5.) This memo, which was sent to officers of Defendant, creates a disputed fact about Defendant’s knowledge and decision not to warn employees and users about asbestos in Defendant’s equipment.

The motion for summary judgment and summary adjudication is DENIED.

The moving party is to give notice.