Judge: Laura A. Seigle, Case: 21STCV45118, Date: 2022-08-18 Tentative Ruling

Case Number: 21STCV45118    Hearing Date: August 18, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTIONS FOR SUMMARY ADJUDICATION

DEFENDANT P.W. STEPHENS ENVIRONMENTAL, INC.’S MOTION

            On July 8, 2022, Defendant P.W. Stephens Environmental, Inc. (“Defendant”) filed a motion for summary adjudication.  On July 26, 2022, Plaintiffs and Defendant agreed that Plaintiffs would dismiss the second, third, and fourth causes of action against Defendant, leaving the first cause of action for negligence, fifth cause of action for vicarious liability, sixth cause of action for premise liability, and seventh cause of action for loss of consortium. 

            Plaintiff’s Objection No. 1 is sustained.

            Defendant’s Objection Nos. 1-18 are denied.

            A.        First Cause of Action

Defendant contends that the first cause of action alleges the defendants “manufacture, supply, market, distribute or otherwise place asbestos-containing products into the stream of commerce,” none of which Defendant does because it is an asbestos abatement contractor.  (Motion at p. 9.)  Plaintiffs acknowledge Defendant was “the contractor who performed the removal of asbestos-containing materials, including popcorn ceilings and flooring.”  (Opposition at p. 2.)  Nevertheless, Plaintiffs argue that the first cause of action applies to Defendant, even though Defendant did not put a product into the stream of commerce, because the complaint alleges in paragraph 23 that the defendant “in the performance of their work, negligently and carelessly used asbestos-containing products in proximity to exposed persons.”  (Opposition at p. 4 n.2.) 

The entire first cause of action is premised on the defendants placing asbestos-containing products in the stream of commerce.  (See, e.g., Complaint, ¶ 20 [“Defendants were engaged in the business of placing asbestos-containing products into the stream of commerce”]; ¶ 21 [“Defendants negligently and carelessly placed asbestos-containing products into the stream of commerce]”; ¶ 26 [Defendants knew “that asbestos-containing products would be transported by truck, rail, ship and other common carrier”]; ¶ 30 [“Defendants failed to recall asbestos-containing products”]; ¶ 32 [“Defendants’ placing of defective products into the stream of commerce, as set forth herein, were a direct and proximate cause of Plaintiff’s injuries”]; ¶ 33 [“the conduct of Defendants in continuing to market and sell products . . . without adequate warnings . . . .”]; ¶ 37 [“In continuing to place asbestos-containing products in the stream of commerce . . . .”].   The reference in paragraph 23 to the defendants who “used asbestos-containing products” does not cover Defendant, which was in the business of removing and abating (not using) asbestos.

Instead the fifth and sixth causes of action specifically allege wrongdoing in the abatement and removal of asbestos-containing products and materials.  (See, e.g., Complaint, ¶¶ 81, 93.)  These two causes of action are specific to Defendant’s abatement and removal work that allegedly caused Jose Diaz to be exposed to asbestos fibers.

Because the fifth and sixth causes of action, not the first cause of action, allege the harm to Plaintiffs caused by Defendant’s alleged wrongful activities in the course of its abatement and removal of asbestos, summary adjudication is granted in favor of Defendant on the first cause of action.

B.        Punitive Damages

Defendant also moves for summary adjudication of the request for punitive damages on the ground that Plaintiffs have no evidence proving they are entitled to punitive damage.  (Motion at p. 10.)  Defendant points to Jose Diaz’s response to Special Interrogatory No. 4, asking for all evidence supporting the claim for punitive damages.  (Motion at pp. 7, 11; UMF 46.)  Defendant contends the response is factually-devoid.  (Motion at p. 7.) 

“ ‘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.)  In response to Special Interrogatory No. 4, Jose Diaz incorporated his response to Special Interrogatory No. 1.  (Appendix, Ex. E at p. 8.)  In response to Special Interrogatory No. 1, he stated Defendant was subject to AQMC Rule 1403 and EPA regulations regarding asbestos abatement, did not properly clean up debris after it did its abatement work, knew about the danger of asbestos because it was subject to various regulations, and did not warn him.  (Id. at pp. 2, 3.)

The interrogatory response is partially factually-devoid.  Defendant’s business was to remove and abate asbestos.  A jury could infer from that fact that Defendant knew about the dangers of asbestos.  It is undisputed that Defendant was subject to various rule and regulations designed to ensure safety when it engaged in its abatement and removal business.  If it failed to follow those rules and regulations, and if a managing agent knew Defendant’s employees were failing to follow those rules and regulations, Plaintiffs may be able to prove Defendant’s failure to follow those rules and regulations was done with a willful and knowing disregard of the safety of others.  However, the interrogatory response does not identify evidence showing a managing agent knew Defendant’s employees were not following the rules and regulations. 

Plaintiff argues this case is like Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279.  (Motion at p. 11.)  In that case, there was evidence that a managing agent “was accurately conveying company policy” when he forbid warnings to the public about a dangerous condition.  (Nolin, supra, 95 Cal.App.3d at p. 289.)  The record disclosed “on the part of defendant’s personnel at the managerial level, a conscious disregard for safety that constitutes the ingredient of malice and evil motive.”  (Ibid.)  Here Plaintiffs have not pointed to any such evidence of conscious disregard at the managerial level or that managers knew Defendant’s employees were failing to follow rules and regulations about cleaning up asbestos dust.

Plaintiffs state they will be able to obtain this evidence in the depositions of Defendant’s PMQ and a former employee, scheduled for August 9, 2022 and August 4, 2022 respectively.  (Uchimura Decl., ¶¶ 6-9.)  At the hearing Plaintiffs’ counsel is to be prepared to identify the evidence obtained in these two depositions showing Defendant’s conscious disregard or malice at the managerial level.  If the depositions revealed such evidence, the Court will continue the hearing a few days to allow Plaintiffs to file the evidence and Defendant to file a response.

The motion is GRANTED as to the first cause of action and CONTINUED as to the request for punitive damages.

The moving party is to give notice.

PLAINTIFFS’ MOTION

            Plaintiffs Jose Diaz and Maria Diaz filed a motion for summary adjudication as to Defendant P.W. Stephens Environmental, Inc.’s first cause of action for negligence.  Plaintiffs contend Defendant engaged “in improper, reckless, and wonton asbestos abatement activities in violation of California law” in violation of CEQA, which “constitutes negligence per se.”  (Motion at p. 6.) 

As the Court explained in more detail in ruling on Defendant’s motion for summary adjudication, the first cause of action is premised on the defendants placing asbestos-containing products in the stream of commerce.  It does not allege Defendant’s conduct in removing and abating asbestos.  Instead the fifth and sixth causes of action allege wrongdoing in the abatement and removal of asbestos-containing products and materials.  (See, e.g., Complaint, ¶¶ 81, 93.)  The fifth and sixth causes of action cover Defendant’s abatement work, which allegedly caused Jose Diaz to be exposed to asbestos fibers.  Thus, while Plaintiffs may have a negligence per se claim against Defendant in connection with the fifth and sixth causes of action, the first cause of action does not state such a claim.

For this reason, and because the Court granted summary adjudication in favor of Defendant on the first cause of action, this motion is DENIED.

The moving party is to give notice.