Judge Laura A. Seigle, Case Number: 21STCV38985, Date: 2024-02-14 Tentative Ruling

Judge: Laura A. Seigle, Case: 21STCV38985, Date: 2024-02-14 Tentative Ruling

Case Number: 21STCV38985 Hearing Date: March 25, 2024 Dept: 15

ORDER RE MOTION FOR SUMMARY JUDGMENT (GRAYBAR)

On October 22, 2021, Plaintiffs Donna Frizzell and Carroll Frizzell filed this action alleging Donna Frizzell developed mesothelioma as a result of secondary exposure from her husband’s work with asbestos-containing products. On November 28, 2023, Defendant Graybar Electronic Company, Inc. filed a motion for summary judgment and alternatively summary adjudication of the fraud and conspiracy causes of action and request for punitive damages. Plaintiffs stated they needed a continuance to depose Graybar, which the court granted. The parties then filed supplemental briefs

A. Objections

1. Plaintiffs’ Objections

The Court did not rely on the Netherton Declaration.

2. Defendant’s Objections

Nos. 1-3: Sustained.

Nos. 4-11: The Court did not rely on this evidence.

B. Summary Judgment

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 contends Plaintiffs have no evidence Donna Frizzell was secondarily exposed to asbestos-containing products her husband worked with or around from Defendant. (Motion at p. 7.) Defendant served an interrogatory asking for all facts supporting the contention that Donna Frizzell was exposed to asbestos from Defendant’s products. (Cappy Decl., Ex. F at p. 2.) Plaintiffs responded that Donna Frizzell was exposed through her husband’s employment, he brought home asbestos on his work clothes, and Defendant may have distributed and supplied asbestos containing parts to the husband’s jobsites. (Id., Ex. H at pp. 1-2, 3.) In response to a request for all documents supporting the contention that Plaintiffs were exposed to asbestos from Defendant’s products (id., Ex. G at p.3), Plaintiffs responded with a long list of documents, but did not specify any document showing that Carroll Frizzell worked with asbestos-containing products from Defendant. (Id., Ex. I.)

Donna Frizzell is not a witness in this case due to her illness. (Cappy Decl., Ex. D.)

Carroll Frizzell testified that he bought some of Defendant’s products when he worked at Parker Electric, but he does not recall which products. (Cappy Decl., Ex. C at p. 415.) He does not have any documents, receipts, or purchase orders relating to the products he used from Defendant, and he does not remember the name brand or manufacturer of any products he ordered from Defendant. (Id. at pp. 419, 420.) He has no information that any of the parts he purchased from Defendant contained asbestos. (Ibid.)

The deposition testimony and discovery responses do not provide evidence Donna Frizzell was secondarily exposed to asbestos-containing products from Defendant, and thus, Defendant shifted the burden.

In opposition, Plaintiffs filed additional excerpts from Carroll Frizzell’s deposition where he testified that in the 1970s, he purchased many different products from Defendant including switch gears, panels, and breakers. (Bendon Decl., Ex. A at pp. 39, 923-924.) Defendant was one of the places from which his employer ordered electrical equipment. (Id. at p. 925.) He worked with and around circuit breakers and panels manufactured by Square D, ITE/Bulldog, and General Electric. (Id. at pp. 311-312, 449-450.)

Defendant, as a distributor of electric related products, sold some products that may have contained asbestos until the mid-1980s. (Bendon Decl., Ex. E at p. 63-64.) During the relevant time period, Defendant sold panel boxes, circuit boards, and breakers. (Id. at pp. 54-56.) Defendant also sold panel boards manufactured by Square D, General Electric, and ITE/Bulldog. (Id. at pp. 59, 61; Ex. G at p. 46.) Forty percent of the breakers Defendant sold were made by Square D, and sixty percent were made by the other two. (Id., Ex. G at p. 48.) Plaintiff’s expert opined that some of Square D’s and General Electric’s products may have contained asbestos. (Spear Decl., ¶¶ 128, 132.)

This evidence establishes that Defendant was one of the suppliers of electrical equipment to Carroll Frizzell’s employer, Defendant sold some asbestos-containing parts, Carroll Frizzell worked with switch gears, panels, and breakers from Defendant, and the breakers he worked with that came from Defendant were manufactured by Square D, ITE/Bulldog, or General Electric. However, the Spear declaration states only that the products from Square D and General Electric MAY have contained asbestos. Defendant’s witness, Kenneth Netherton, testified that the switchgears and panels it sold may have contained asbestos, and that breakers did not include asbestos. (Netherton Depo. at pp. 22, 23-24, 25, 49-50.)

At most, Plaintiffs have evidence that Carroll Frizzell worked with products from Defendant that may have contained asbestos. It is speculative whether he worked with products from Defendant that actually contained asbestos. Plaintiffs have not shown they can obtain evidence that the products from Defendant in fact exposed Carroll Frizzell to asbestos. Thus, they have not shown a disputed issue for trial. The motion for summary judgment is GRANTED.

The moving party is to give notice.