Judge Laura A. Seigle, Case Number: 21STCV30158, Date: 2023-11-01 Tentative Ruling

Judge: Laura A. Seigle, Case: 21STCV30158, Date: 2023-11-01 Tentative Ruling

Case Number: 21STCV30158 Hearing Date: March 22, 2024 Dept: 15

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

Defendant Zenith Electronics LLC filed a motion for summary judgment of Plaintiffs John D. Fernandez, Christina M. Fernandez, and Katherine A. Panaqua’s claims that Phyllis J. Fernandez was exposed to asbestos from Defendant’s products.

Defendant’s Objections: See below.

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 special interrogatories asking for all facts supporting the various causes of action. (Defendant’s Ex. B.) In response Plaintiffs stated Phyllis Fernandez’s husband and their father worked on radios and televisions in the 1950s through 1980s and came home with clothing covered in asbestos dust. (Id. at pp. 2-3.) The response did not state facts showing that the husband/father worked on Defendant’s products or that Defendant’s products contained asbestos. Defendant served document requests asking for all documents relating to Phyllis Fernandez being exposed to asbestos-containing products from Defendant. (Defendant’s Ex. C at p. 2.) Plaintiffs responded by referring generically to descriptions, designs, diagrams, instructions, specifications, contracts, sales records, invoices, receipts, and transcripts. (Id. at pp. 2-3, 4.) These discovery responses are factually devoid.

Plaintiffs testified their father worked on Zenith radios and televisions in the 1960s and possibly the 1970s, and they do not remember the models of the radios and televisions. (Defendant’s Ex. D at pp. 94-95, 104; Ex. E at pp. 166, 173.)

Defendant showed that Plaintiffs do not have and cannot reasonably obtain evidence of exposure to asbestos from Defendant’s products. Defendant shifted the burden.

In opposition, Plaintiffs contend their father repaired televisions made in the 1950s. (Opposition at p. 2.) The evidence they cite (Plaintiffs’ Ex. 2 at 116:1-117:17) does not support that assertion. The cited evidence states that Plaintiff helped his father install televisions possibly from the 1950s and from the 1960s and 1970s. (Ibid.) These pages do not mention radios.

Plaintiffs also contend their father “repaired radios and televisions manufactured in the 1950s through 1980s . . . and that Zenith supplied asbestos-containing electronics,” citing Plaintiff’s deposition at pages 161 through 171. (Opposition at p. 7.) Pages 161-163 contain attorney discussion. At pages 64-71, Plaintiff testified his father worked on at least nine brands of televisions including Zenith televisions, he worked on various radios including Zenith radios, he does not know the models of the televisions, he changed tubes, he does not know the dates of the televisions his father worked on, and his father cleaned televisions which resulted in dust. (Plaintiffs’ Ex. 2 at pp. 161-171.) The word “asbestos” does not appear in those pages, nor do any dates. In sum, the cited evidence does not support Plaintiffs’ contention.

Plaintiffs contend their “father worked on Zenith radios and televisions produced in the 1950s through the 1980s, included with asbestos-containing components related to its radios and televisions.” (Opposition at p. 10.) Plaintiffs support this assertion by citing Plaintiff’s deposition at pages 159, 164, 166, and 175-178. (Ibid.) At those pages, Plaintiff testified his father worked on Zenith televisions and radios, he does not know the specific models, he saw the Zenith name on the televisions, and his father replaced almost all parts on Zenith televisions. (Plaintiff’s Ex. 2 at p. 159, 164, 166, 175-178.) Those pages do not state the father worked on Zenith radios and televisions produced in the 1950s through 1980s, and they do not state that any parts contained asbestos. The evidence does not support Plaintiffs’ contention.

Plaintiffs contend Defendant’s radios and televisions contained asbestos, citing two exhibits. (Opposition at p. 3.) Exhibit 4 is a copy of a May 2002 “The Old Timer’s Bulletin” that is barely legible. (Plaintiff’s Ex. 4.) Plaintiffs specifically cite a one-page article in that publication entitled “Asbestos Exposure and Radio Collecting” written by Joseph G. Jackson, M.D. (Id. at p. 38.) The author states he has “encountered many compact sets from the 30s and 40s with a sheet of asbestos attached under the cabinet top” and includes a photograph of a Zenith radio with a sheet of asbestos. (Ibid.) Defendant objects this exhibit lacks foundation, is not authenticated, and is hearsay. Plaintiffs provided no evidence authenticating Exhibit 4. Plaintiffs offer Exhibit 4 for the truth of the matter asserted – that in fact the Zenith radio pictured in the article contained asbestos – but did not establish any hearsay exception. Defendant’s objections are sustained. In any event, even if Exhibit 4 is admissible, the fact that one Zenith radio from an unspecified time period contained asbestos does not mean that Plaintiffs’ father encountered asbestos from Zenith radios he worked on in the 1960s and 1970s. (Defendant’s Ex. D at pp. 94-95.) To the contrary, the article states that radios in the 30s and 40s, not in the 1960s and 1970s, contained asbestos.

Exhibit 5 is an affidavit of Joseph Jackson signed in 2013 in a different case saying he collected radios from the 1920s through 1950s, restored radios from the 1920s through 1960s, and observed protective heat strips in Zenith radios from the 1930s through 1950s. (Plaintiff’s Ex. 4 at pp. 1-3.) Defendant objects that Jackson is not an expert. Whether or not the affidavit is admissible, it is not evidence that when Plaintiffs’ father worked on Zenith radios in the 1960s and 1970s, they contained the protective heat strips Jackson says he saw. And Plaintiffs do not cite evidence that their father repaired Defendant’s radios from the 1950s or earlier.

Plaintiffs also cite Exhibits 6, 7, 8, and 9 to support their assertion that Zenith radios contained asbestos. (Opposition at p. 3.) There is no Exhibit 6 attached to the Seitz declaration. Exhibit 7 is a document from a different case about dust in a Zenith radio. (Plaintiffs’ Ex. 7 at p. 2.) It does not state the date of the Zenith radio. Defendant objects the exhibit is hearsay. The document is not a declaration or affidavit and is not signed under oath. Plaintiffs use it for the truth of the matter that the Zenith radio contained asbestos. Therefore the document is hearsay, and Plaintiffs did not establish an exception to the hearsay rule. The objection is sustained. Even if Exhibit 7 is admissible, there is no evidence that Plaintiffs’ father worked on the model and year of the Zenith radio tested in Exhibit 7.

Exhibit 8 is entitled PLM Bulk Asbestos Report and refers to asbestos present in a heat shield in a Zenith radio. (Plaintiffs’ Ex. 8 at p. 1.) It is unclear what this document is. It is not signed under oath. Defendant objects to this exhibit. Plaintiffs provide no evidence to authenticate the document or to establish a hearsay exception to it. The objections are sustained. Again, even if it is admissible, the document does not state the year of the Zenith radio referenced in the document. The exhibit is not evidence that Plaintiff’s father worked on the model and year of the Zenith radio tested in Exhibit 8.

Exhibit 9 is a July 12, 2013 letter stating a vacuum tube from Zenith tested positive for asbestos. (Plaintiffs’ Ex. 9 at p. 2.) Assuming Plaintiffs can authenticate the letter (which they have not done), the letter provides no evidence of the date of the tube or what kind of product it came from. (Id. at pp. 1-3.) And Plaintiffs did not provide evidence that their father worked with the tube referenced in the July 12, 2013 letter.

In sum, Plaintiffs did not present evidence that their father, Phyllis Fernandez’s husband, worked with asbestos-containing parts from Defendant. Instead, they made a lot of assertions and then cited evidence that does not support those assertions. Because Plaintiffs did not show a disputed issue of material fact, the motion is GRANTED. Plaintiffs are to file a proposed judgment within five days.

The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Defendant
Panasonic Corporation of North America filed a motion for summary judgment of
Plaintiffs John D. Fernandez, Christina M. Fernandez, and Katherine A.
Panaqua’s claims that Phyllis J. Fernandez was exposed to asbestos from
Defendant’s products.

Defendant’s
Objection Nos. 1-19: Overruled.

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 special interrogatories asking for all facts supporting the various
causes of action. (Defendant’s Ex.
B.) In response Plaintiffs stated
Phyllis Fernandez’s husband worked on radios and televisions in the 1950s
through 1980s and came home with clothing covered in asbestos dust. (Id. at pp. 2-3.) The response did not state facts showing that
the husband worked on Defendant’s products or that Defendant’s products
contained asbestos. Defendant served
document requests asking for all documents relating to Phyllis Fernandez being
exposed to asbestos-containing products from Defendant. (Defendant’s Ex. C at p. 2.) Plaintiffs responded by referring generically
to deposition transcripts, contracts, brochures and memoranda. (Id. at pp. 2-3.) These discovery responses are factually
devoid.

Plaintiffs
testified that they do not know the brands of televisions or radios their
father worked on, and while it is possible he worked on Panasonic TVs, they do
not know the type of work he did on Panasonic TVs or the particular models. (Defendant’s Ex. D at pp. 104, 124-125; Ex. E
at pp. 166, 207-209.)

Defendant
showed that Plaintiffs do not have and cannot reasonably obtain evidence of
exposure to asbestos from Defendant’s products.
Defendant shifted the burden.

In
opposition, Plaintiffs contend “Panasonic supplied asbestos-containing
electronics,” citing Plaintiff’s deposition at pages 161-171. (Opposition at p. 8.) Pages 161-163 contain attorney
discussion. At pages 164-171, Plaintiff
testified his father worked on at least nine brands of televisions, he worked
on various radios including Panasonic radios, he does not know the models of
the televisions, he changed tubes, he does not know the dates of televisions
his father worked on, and his father cleaned televisions which resulted in
dust. (Plaintiffs’ Ex. 2 at pp.
161-171.) The word “asbestos” does not
appear in those pages.

Plaintiffs
contend Defendant used asbestos in radios, citing to the Cabrera Deposition at
page 29. (Opposition at p. 10.) On page 29, the witness testified that when
he started his job in 1970 there was no asbestos material, and he has no direct
knowledge of the use or nonuse of asbestos in 1970. (Plaintiffs’ Ex. 4 at p. 29.) Page 29 of the deposition does not mention
radios and does not contain evidence that Defendant used asbestos in its
products.

Plaintiffs
cite a test of a Panasonic vacuum tube.
(Opposition at p. 11.) That
exhibit is an April 17, 2013 letter stating a vacuum tube from Panasonic tested
positive for asbestos. (Plaintiffs’ Ex.
5 at p. 2.) Assuming the letter can be
authenticated (which Plaintiffs have not done), it provides no evidence of the
date of the tube, what kind of product it came from, or even where it came
from. (Id. at pp. 1-3.) Plaintiffs provided no evidence that their
father was exposed to the tube referenced in the April 17, 2013 letter.

In
sum, Plaintiffs did not present evidence that Phyllis Fernandez’s husband
worked with asbestos-containing parts from Defendant. Because Plaintiffs did not show a disputed
issue of material fact, the motion is GRANTED.
Plaintiffs are to file a proposed judgment within five days.

The
moving party is to give notice.