Judge: Laura A. Seigle, Case: 21STCV36866, Date: 2022-07-27 Tentative Ruling

Case Number: 21STCV36866    Hearing Date: July 27, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Defendant Gardner Denver, Inc. (“Defendant”) moves for summary judgment on the ground that Plaintiffs cannot establish Benito Valdez was exposed to asbestos by Defendant’s products, and for summary adjudication of the punitive damages claim.

A.                Objections

See discussion below.

B.                 Summary Judgment

Defendant argues it “has presented affirmative evidence through the testimony and expert opinion showing that plaintiff cannot establish a claim against it” and that Plaintiffs do not possess and cannot reasonably obtain evidence to prove his causes of action.  (Motion at p. 7.)

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’s contention that it has presented affirmative evidence rests on the opinions of its industrial hygienist, Sheldon Rabinovitz.  The expert reviewed Valdez’s complaint, responses to interrogatories, and deposition testimony.  (Rabinovitz Decl., ¶ 8.)  Based on this, the expert concludes Valdez had no exposure to asbestos from Defendant’s products and so Defendant’s products could not have been a substantial factor in causing Valdez’ disease.  (Id. at ¶ 16.) 

“ ‘ “[W]hen an expert's opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’ ” ’  [Citation.]” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 781.)  “ ‘Rabinovitz’s declaration does not give a reasoned explanation how he reached the conclusion of no exposure.  He states “[t]here is no evidence or testimony that plaintiff encountered any sealing components . . . from Gardner Denver”  (id. at ¶ 15) but does not state that he reviewed all of the evidence and all of the depositions in this case.  Therefore, his conclusion that there is no evidence or testimony is speculative and without foundation.  In sum, the opinion has no evidentiary value and is insufficient to shift the burden.

Defendant supports its contention that Plaintiffs do not have and cannot obtain the necessary evidence by citing to Plaintiffs’ responses to RFA Nos. 8 and 12-15, and 24.  (Motion at p. 8.)  Plaintiffs responded to these RFAs by objecting and stating they did not have information sufficient to admit or deny the request.  (Jenkins Decl., Ex. G.)  That response is not evidence of any other than the lack of evidence at the time of the response.  The response is not evidence that Plaintiffs will not be able to obtain the necessary evidence.  Defendant also cites to RFA No. 30, which Plaintiffs denied.  (Ibid.)  RFA denials are not admissible evidence.  (Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal.App.5th 948, 973.)  Defendant also cites Valdez’s deposition testimony.  (Motion at pp. 1-2.)  The deposition testimony does not show Plaintiffs cannot obtain the necessary evidence from other sources.  Therefore, Defendant failed to shift the burden.

            The motion for summary judgment is denied.

C.                Summary Adjudication

Defendant moves for summary judgment of the punitive damages claim because there is no evidence Defendant acted with malice, oppression, or fraud.  (Motion at p. 8.)  The motion cites to eight Undisputed Material Facts (“UMF”) – that Plaintiff never spoke to anyone employed by Defendant; never read a manual from Defendant; and has no knowledge Defendant intended to harm him, gave him false information, acted with conscious disregard to him, or acted with malice or oppression toward him.  (UMF 1-6.)  The deposition testimony does not show Plaintiffs cannot obtain the necessary evidence from other sources. 

UMF 7 cites to a denial to a RFA, which as discussed above is not admissible evidence. 

UMF 8 cites to a response to Form Interrogatory No. 17.1.  That response was not factually-devoid.  For example, it identified trade organization to which Defendant belonged and their publications and regulations with which Defendant had to comply as evidence of Defendant’s knowledge.  (Jenkins Decl., Ex. I at pp. 5, 7.)

Because Plaintiffs’ discovery responses are not factually-devoid, Defendant failed to shift the burden.

The motion for summary judgment, or in the alternative summary adjudication, is DENIED.