Judge Laura A. Seigle, Case 21STCV30709 2023-04-21 Tentative Ruling

Judge: Laura A. Seigle, Case: 21STCV30709, Date: 2023-04-21 Tentative Ruling

Case Number: 21STCV30709 Hearing Date: April 21, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT (INDUSTRIAL HOLDINGS)

Defendant Industrial Holdings Corporation filed a motion for summary judgment of Plaintiffs Kirt Bjoin and Allison Bjoin’s claims that Kirt Bjoin was injured by exposure to asbestos caused by Kirt Bjoin’s use of Defendant’s abrasive blades on a power saw to cut asbestos-containing pipe.

Plaintiffs’ Objection Nos. 1-10: The court did not rely on this evidence.

Defendant argues that its abrasive blades did not contain asbestos, and it had no duty to warn of the risks when its blades were used with other products. (Motion at p. 12.) “California law does not impose a duty to warn about dangers arising entirely from another manufacturer’s product, even if it is foreseeable that the products will be used together. Were it otherwise, manufacturers of the saws used to cut insulation would become the next targets of asbestos lawsuits.” (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 361.) However, [w]here the intended use of a product inevitably creates a hazardous situation, it is reasonable to expect the manufacturer to give warnings. Conversely, where the hazard arises entirely from another product, and the defendant’s product does not create or contribute to that hazard, liability is not appropriate.” (Id. at pp. 361-362.)

Defendant submits evidence that its abrasive blades did not contain asbestos and were multi-purpose, advertised for use in cutting many types of materials, and not specially designed for cutting asbestos-containing pipes. (Undisputed Material Fact (“UMF”) 5, 6.) Kirt Bjoin testified he used a gas-powered saw, the Red-I-Cut high speed masonry blades were used on gas-powered saws, and those blades were for use in cutting “brick, slate, masonry, stone, concrete, asphalt and a variety of related materials.” (Wagner Decl., ¶¶3, 8, Ex. A at p. 7.) Defendant shifted the burden by showing its blades were intended for use in cutting many types of materials, and therefore it was not inevitable that their use would create a hazardous situation by causing asbestos exposure.

Plaintiffs do not dispute that the abrasive blades contained no asbestos. (Response to UMF 5.) Instead, Plaintiffs argue Defendant designed and advertised the Red-I-Cut masonry blade specifically for cutting asbestos-containing pipes. (Opposition at p. 8.) Plaintiffs submit evidence that Kirt Bjoin used a portable gas-powered saw each time he cut asbestos-containing pipe, and Defendant sold a Red-I-Cut masonry blade intended to cut asbestos-containing pipe. (Additional Undisputed Material Fact (“AUMF”) 1, 2, 7.) Plaintiffs cite the deposition of Timothy Wagner who testified Defendant specifically advertised that customers use the Red-I-Cut masonry blade to cut asbestos-cement. (AUMF 8.)

However, Plaintiffs did not include the portions of Wagner’s testimony where he pointed out there were two Red-I-Cut masonry blades – a Red-I-Cut masonry blade and a Red-I-Cut high speed masonry blade. (Rejch Decl., Ex. F at p. 97; Ex. 2 to Ex. F at p. 38.) Defendant’s catalogue advertised the Red-I-Cut masonry blade, but not the Red-I-Cut high speed masonry blade, for cutting asbestos cement. (Rejch Decl., Ex. 2 to Ex. F at p. 38; Ex. F at pp. 146-147.) But Red-I-Cut masonry blades could not be used on a high speed saw. (Rejch Decl., Ex. F at p. 103.) The Red-I-Cut high speed masonry blades were used on gas-powered saws. (Wagner Decl., ¶ 8.)

Plaintiffs’ opposition does not address the portions of the Wagner deposition testimony and declaration where he distinguishes between the Red-I-Cut masonry blade and Red-I-Cut high speed masonry blade and explains that Red-I-Cut high speed masonry blades were used on gas-powered saws. Plaintiffs do not submit evidence disputing the fact that if Kirt Bjoin was using a gas-powered saw, he used the Red-I-Cut high speed masonry blade, and Defendant advertised that blade for use on a variety of materials without specifying asbestos-containing materials. Because Plaintiffs failed to show the existence of a disputed fact concerning Kirt Bjoin’s use of Red-I-Cut high speed masonry blades and their intended use on a variety of materials, the motion for summary judgment is granted.

The motion is GRANTED. Defendant is to file a proposed judgment within five days. The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION (FERGUSON)

BACKGROUND

Plaintiffs Kirt Bjoin and
Allison Bjoin filed this action alleging Kirt Bjoin developed mesothelioma as a
result of exposure to asbestos. Defendant
Ferugson Enterprises, Inc. filed a motion for summary adjudication of Plaintiffs’
second cause of action for breach of express warranty and request for punitive
damages. Plaintiffs stipulate to the
dismissal of the breach of express warranties claim. (Opposition at p. 2 n.1.)

I. Evidentiary
Objections

Plaintiffs’ Objection Nos.
1-9: The court did not rely on this
evidence.

Defendant’s Objections: See below.

II. Request
for Judicial Notice

Plaintiffs request
judicial notice of the Occupational Safety and Health Standards, Rules and Regulations
Standard for Exposure to Asbestos Dust, published in volume 37 of the Federal
Register, at pages 11318 through 11322, on June 7, 1972, attached as Exhibit H
to the concurrently filed Declaration of Tyler Stock. The Court takes judicial notice pursuant to Evidence
Code section 452.

III. Punitive Damages

Defendant contends Plaintiffs cannot
prove Defendant acted with oppression, malice or fraud.

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.) “ ‘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.’” (Weber
v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1440.)

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.App.4th 1270, 1300.) In Pfeifer,
the defendant knew about OSHA regulations requiring manufacturers to monitor
for asbestos and complied with those regulations, but did not warn customers
even though it knew its products could generate asbestos dust. (Id. at pp. 1300-1301.) This was sufficient to support punitive
damages. (Ibid.)

Defendant
cites to
Plaintiffs’ discovery responses. (Motion
at p. 3; Tobey Decl., Ex. C at pp. 5-6; Undisputed Material Fact (“UMF”) 19-23.)
In response to special interrogatory No.
9 asking for all facts supporting the claim for punitive damages, Plaintiffs incorporated
their answer to special interrogatory No. 1. (Tobey Decl., Ex. D at pp. 4-18.) The response to special interrogatory No. 1
stated Defendant knew or should have known about the health hazards of asbestos
but continued to sell the asbestos-containing products without providing any
warnings to its users. (Id. at
pp. 11-13.) Plaintiffs also stated that Defendant knew or should have
known about the dangers of asbestos by referring to scientific articles. (Id. at pp. 9-11.) The responses did not contain specific
evidence that Defendant saw those scientific articles. The responses do not identify evidence that Defendant
knew, or had reason to know, the products it was selling were dangerous to its
customers.

Defendant also points to
Plaintiffs’ responses to requests for production relating to punitive damages. (UMF 26.) In their responses, Plaintiffs responded by incorporating the response to
request for production No. 1. (Stock
Decl., Ex. G at pp. 11-14, 28.) The
response to request for production No. 1 referred generally to the deposition
testimony of Plaintiffs, expert witnesses, medical and scientific literature,
Defendant’s records, and discovery responses of Plaintiffs and Defendant. (Id. at pp. 5-7.) That response did not provide specific
evidence that Defendant acted with malice,
oppression, fraud, or conscious disregard for the safety of others. (Ibid; UMF 27.)

In sum, these responses are conclusory. Therefore, Defendant shifted the burden.

In opposition,
Plaintiffs argue that when Defendant’s predecessor, Familian Corporation,
purchased asbestos cement pipe from JMM, JMM gave Defendant various materials
containing warnings about the dangers of asbestos, including a Recommended Work
Practice Guide and Material Safety Data Sheets, and Defendant was required to
pass that information on to its customers. However,
Defendant failed to pass on those materials. (Opposition at pp. 3-4.)

As evidence that JMM gave Defendant the
Recommended Work Practice Guide, Plaintiffs cite the deposition of JMM’s
corporate representative, Jim Reichert, taken in a different case in 2011. (Opposition at p. 3.) He testified generally that by January 1986,
JMM was providing Material Safety Data Sheets and work practice guides to its
customers, including Familian. (Stock
Decl., Ex. B at pp. 54, 55.) Plaintiffs
also cite a document entitled Recommended Work Practice Guide dated 1977 and a
1978 document entitled Work Practices for Asbestos-Cement Pipe Manual. (Opposition at p. 4; Stock Decl., Exs. D, I.) Plaintiffs’ counsel states JMM has produced these
two documents in multiple cases. (Stock
Decl., ¶¶ 5, 10.)

Defendant objects to these exhibits,
arguing the Reichert testimony is hearsay and not admissible under Berroteran
v. Superior Court (2022) 12 Cal.5th 868.
Plaintiffs did not satisfy the requirements of Berroteran, for
example by showing that the witness is unavailable for a deposition in this
case, the parties intended the deposition testimony in the 2011 case to be used
at trial, and the objecting party had a right and opportunity to cross-examine
the declarant with an interest and motive similar to at trial. (Id. at pp. 882, 900-901.) Indeed, Plaintiffs likely cannot make that
showing because Reichert was disposed in this case. (Stocker Decl., ¶ 4.) Defendant also
objects that the Recommended Work Practice Guide and Work Practice manual are
unauthenticated and hearsay. They are
not hearsay because they are not offered for the truth of the matter
asserted. But they not authenticated as the
Recommended Work Practice Guide or Work Practice manual that JMM gave
Familian. Even if the 2011 deposition
testimony, the 1977 Recommended Work Practice Guide and 1978 Work Practices
manual are admissible, they do not establish that Familian received those two
specific documents. Reichert did not
testify that in 1977 or 1978, JMM delivered Recommended Work Practice Guides or
Work Practices manuals to Familian (rather he said that was occurring by January
1986). In sum, there is no admissible evidence
that Familian received Exhibits D and I or any specific Recommended Work
Practice Guide or Work Practices manual containing warnings about asbestos.

Plaintiffs also cite Exhibit E to
support the assertion that JMM gave Familian various Material Safety Data
Sheets. (Opposition at p. 4.) Exhibit E is an internal JMM memo dated
January 21, 1986 attaching Material Safety Data Sheets to be distributed to customers
through JMM sales representatives. (Stock
Decl., Ex. E at p. 1.) Defendant objects
that this document lacks authentication.
The Stocker Declaration does not authenticate the document. (Stocker Decl., ¶ 6.) Therefore, this
objection is sustained.

Plaintiffs also argue that Familian
failed to place warning labels on or test the pipes it received from JMM. (Opposition at p. 5.) Yet, Plaintiffs cite no law that a distributer
like Familian is required to place labels on or test products it receives from
a manufacturer in the absence of evidence that the distributor knows the
products are dangerous to its customers. Plaintiffs argue that Pfeifer and Bankhead control
here, and evidence that Defendant complied with OSHA but did not warn its
customers is a sufficient basis for punitive damages. (Opposition at p. 7.) However, the defendants in those cases were
manufacturers making products with asbestos who knew their workers were exposed
to asbestos and failed to comply put warnings on the products they manufactured. (Pfeifer, supra, 220 Cal.App.4th at p.
1300; Bankhead, supra, 205 Cal.App.4th at p. 73.) Defendant is a distributor and did not make
the products at issue, and Plaintiffs cite no law interpreting OSHA regulations
to require a distributor to place warnings on products it sells but does not manufacture.

In sum, Plaintiffs failed
to show by admissible evidence the existence of disputed facts regarding its
request for punitive damages.

The motion for summary adjudication is GRANTED on
the claim for breach of the express warranty and on the claim for punitive
damages.

The moving party is to give notice.