Judge: Laura A. Seigle, Case: 21STCV25219, Date: 2023-09-19 Tentative Ruling

Case Number: 21STCV25219    Hearing Date: September 27, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT (FAMILIAN)

            Defendant Familian Corp. moves for summary judgment of Plaintiffs’ claims that Eugene Montano was exposed to an asbestos-containing product from Defendant.  Defendant also moved for summary adjudication of the third and fourth causes of action and request for punitive damages.  Thereafter Plaintiffs dismissed those causes of action.

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.)

A.        Objections

Plaintiffs’ Objection No. 1:  Overruled.

Plaintiffs’ Objection No. 2:  The court did not rely on this evidence.

Defendant’s Objection Nos. 1, 5:  Overruled

Defendant’s Objection Nos. 2, 3, 4, 7:  Defendant objected to these deposition transcripts from other cases pursuant to Berroteran v. Superior Court (2022) 12 Cal. 5th 867.  In that case the California Supreme Court explained that Evidence Code section 1291 treats former deposition testimony differently than former trial testimony.  (Id. at p. 891.)  “The interest and motive of an opposing party at a discovery deposition is therefore often against cross-examination of the witness, in order to avoid assisting the deposing party.”  (Id. at p. 892.)  Also, even if an opposing party has an interest in cross-examination, the opportunity may not be ideal if discovery is ongoing and the evidentiary record is not yet complete.  (Id. at pp. 892-893.)  However, sometimes a deposition is intended to preserve testimony for trial.  (Id. at p. 894.)  Therefore, “[t]he party seeking admission of prior deposition testimony under [section 1291] is free to submit evidence to the court that the deposition sought to be introduced, unlike a typical discovery deposition, featured circumstances that provided the party opponent with an interest and motive for cross-examination similar to that at trial.”  (Id. at p. 894.)  “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.)  Plaintiffs did not submit any such evidence.  Therefore the objections are sustained.

Defendant’s Objection No. 6:  Sustained.  Plaintiffs did not authenticate these articles or provide an evidentiary basis for Plaintiffs’ attorney to state that the articles were published in 1982.

B.        Summary Judgment

            Defendant contends Plaintiffs have no evidence that Eugene Montano worked with asbestos-containing products from Defendant.  (Motion at p.1.)  Defendant cites Plaintiffs’ responses to an interrogatory asking for all facts supporting the contention that Defendant is liable for exposing Montano to asbestos-containing products.  (Ex. C at p. 2.)  Plaintiffs responded he worked with asbestos-cement sewer pipes, asbestos-cement vent pipes, and asbestos-containing gaskets from Defendant.  (Ex. D at pp. 2-3.)  Also, Montano testified he installed asbestos cement pipe, which he picked up from Defendant’s wholesale house; he installed asbestos cement vent pipe for water heaters which he obtained from Defendant; he bought gaskets from Defendant.  (Ex. B at pp. 31-32, 39-40, 137, 140, 226-227.)

            These discovery responses are not factually-devoid.  Defendant did not shift the burden.  Therefore summary judgment is denied.

            C.        Summary Adjudication of Punitive Damages

            Defendant argues Plaintiffs have no evidence Defendant acted with malice, fraud or oppression.  (Motion at p. 15.)  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.App.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 to Plaintiffs’ response to an interrogatory asking for all facts supporting the claim for punitive damages.  (Ex. C at p. 5.)  In response Plaintiffs stated Defendant knew about but failed to warn workers of the dangers associated with working with asbestos cement pipe.  Plaintiff cites dozens of deposition transcripts and other generic documents without specify exactly what testimony or statements in those transcripts and documents support their allegations.  (Ex. D at pp. 16-24.)  In other words, the response put the burden on the court to read dozens of transcripts, laws, regulations, and publications to try to figure out the specific evidence supporting Plaintiffs’ claims.  It is not the court’s responsibility to sort through piles of exhibits to try to figure out what evidence, if any, actually supports Plaintiffs’ case.  Because Plaintiffs failed to identify the specific evidence supporting their general allegations, the response is factually-devoid, and Defendant shifted the burden.

            In opposition, Plaintiffs argue Defendant knew about the hazards of asbestos in the products it was selling but never tested its products.  (Opposition at p. 16.)  To support this assertion, Plaintiffs cite depositions from other cases.  As explained above, Defendant’s objections to those depositions are sustained.  But even if they were not sustained and even if the deposition transcripts were admissible, the cited evidence does not show Defendant knew about the hazards of asbestos products at the time of Montano’s exposure.  Plaintiffs cite the testimony of Defendant’s representative that Defendant became aware of the dangers of asbestos when JM was sued but he does not know when that was.  (Ex. 7 at pp. 148-149.)  Plaintiffs cite a deposition transcript of a manager of Defendant who, when asked “When did Familian first learn that exposure to asbestos could be hazardous,” testified:  “according to Bernie Shapiro, it was when he was reading the financial section of the LA Times in the ‘80s when he heard about it, that it would be hazardous.  (Ex. 8 at pp. 85-86.)  Even assuming this second-hand knowledge based on something someone else said is admissible, the testimony only establishes when Defendant learned that asbestos could be hazardous.  It does not establish when Defendant learned that the products it sold that contained asbestos could be hazardous.

            Plaintiffs did not show via admissible evidence disputed issues concerning punitive damages.  The motion is granted.

The motion for  summary judgment is DENIED.  The motion for summary adjudication of punitive damages is GRANTED.

            The moving party is to give notice.