Judge: Laura A. Seigle, Case: 21STCV29227, Date: 2023-04-28 Tentative Ruling

Case Number: 21STCV29227    Hearing Date: April 28, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Defendant Longs Drug Stores California LLC filed a motion for summary judgment of the claims of Plaintiffs Queenie Wong and Corinne Pampinella that Chui Chan died as a result of expose to asbestos in a product purchased at Defendant’s stores.  Plaintiffs filed no opposition.

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 served interrogatories asking Plaintiffs to identify all products the decedent purchased at Defendant’s stores.  (Compendium, Ex. I at p. 3.)  Plaintiffs responded that the decedent was exposed to asbestos-containing products from Defendant.  (Id. at p. 6.)  This response is factually devoid and does not identify any evidence supporting that allegation.  At her deposition, Queenie Wong testified she bought talcum powder products for the decedent at various stores but not from Defendant’s stores (except perhaps Johnson & Johnson powder), and she has no knowledge the decedent bought talcum powder products from Defendant’s stores.  (Id., Ex. B at pp. 199-200.)  Plaintiffs’ counsel stipulated that Plaintiffs would not have product identification testimony as to Defendant.  (Id. at p. 201; Compendium, Ex. C at p. 3.)  Claims regarding Johnson & Johnson are subject to a bankruptcy stay and not a part of this action.  (Motion at p. 3.) 

            Defendant shifted the burden regarding the lack of evidence that the decedent was exposed to asbestos-containing products from Defendant’s stores.  Because Plaintiffs did not file an opposition, they failed to show the existence of a disputed material fact.

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

            The moving party is to give notice.