Judge: Laura A. Seigle, Case: 21STCV47286, Date: 2024-03-26 Tentative Ruling
Case Number: 21STCV47286 Hearing Date: March 26, 2024 Dept: 15
[TENTATIVE] ORDER RE
MOTION FOR SUMMARY JUDGMENT (NAVISTAR)
On December 28, 2021,
Plaintiffs John Doomey and Elizabeth Doomey filed this action alleging that
John Doomey developed mesothelioma from exposure to asbestos in Defendant Navistar,
Inc.’s products. Defendant filed a
motion for summary judgment and summary adjudication.
Defendant’s Objection
Nos. 1-24 (Ex. 7), 27: The court did not
rely on these exhibits. Defendant named
Objection No. 24 twice.
Defendant’s Objection Nos.
24 (Ex. 3), 25: 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 contends
Plaintiffs have no evidence and cannot obtain evidence that John Doomey was
exposed to asbestos from Defendant.
Defendant cites Plaintiffs’ response to an interrogatory asking for all
facts supporting the contention that Defendant exposed John Doomey to asbestos.
(Motion at p. 2; Defendant’s Ex. B at
pp. 2-3.) Plaintiffs responded that John
Doomey was exposed to Defendant’s asbestos-containing products during his work
as a truck driver from the 1970s until 2002. (Defendant’s Ex. C at pp. 2-3.) The response generically listed deposition
testimony, discovery responses, medical, employment, and social security
records, and so forth as documents supporting Plaintiffs’ contention. (Defendant’s Ex. C at p. 3.)
In response to an
interrogatory asking for the identity of persons with knowledge about John
Doomey’s exposure, Plaintiffs identified John Doomey, Robert Besanson, and unnamed
co-workers, former employees, and corporate representatives. (Defendant’s Ex. E at pp. 2-3.)
John Doomey testified
that he was a truck driver from the late 1970s to 2002 for Lucky Stores and
Albertsons. (Defendant’s Ex. G at pp.
252-254.) Union rules precluded him from
performing or assisting in truck repair, and he did not perform or assist in
any routine repair work – i.e., brakes, transmission, clutches, exhaust, axle,
and so forth. (Id. at pp.
266-268.) On occasion he observed
mechanics doing brake replacement work or tire replacement. (Defendant’s Ex. F at p. 64.) He drove Emeryville trucks made by
International until about 1978 or 1979. (Defendant’s
Ex. I at pp. 572, 574.) He does not
recall being present when anyone worked on an Emeryville truck or International
tractor. (Id. at pp. 575, 580.) He has no information on the brand,
manufacturer or supplier of any of the parts being removed or installed on any
International tractors. (Id. at
p. 581.)
Besanson testified that
he worked at Lucky’s as a truck mechanic from 1978 to 2022. (Defendant’s Ex. K at p. 106.) He does not remember John Doomey. (Id. at p. 92.) He has no information that any truck driver
was present while he was performed any type of work. (Defendant’s Ex. L at p. 91.) Lucky’s used relined or remanufactured
replacement brakes, remanufactured clutches up to the mid-1980s, and
replacement gaskets for engines from Cummins or Detroit Diesel. (Defendant’s Ex. K at pp. 122-123; Defendant’s
Index, Ex. L at pp. 84-85.)
These discovery responses
did not contain evidence that John Doomey was exposed to asbestos from
Defendant’s products. Thus Defendant
shifted the burden.
In opposition, Plaintiffs
provided additional excerpts from John Doomey’s testimony. He drove for Lucky’s from 1978 to 2000,
driving Internationals among other trucks.
(Blumenfeld-James Decl., Ex. 1 at pp. 44-45, 55, 61.) He was in the Buena Park automotive shop on a
regular basis – multiple times during the day three to five times per week. (Blumenfeld-James Decl., Ex. 1 at pp. 54, 55, 62-63.)
Truck drivers usually stood around while
their tractor were being repaired, including brake work. (Id. at pp. 64-65.) He was present, at times three to five feet
away, when mechanics worked on brakes on International tractors. (Id. at pp. 66-68.) He breathed in dust from brakes removed from
International tractors. (Id at
pp. 68-69.) He also inhaled brake
dust when he drove International brand cab-over tractors because he needed to
keep the windows down. (Id. at
pp. 91-92.) He saw brake work on
Internationals and Freightliners because they were the largest number of
tractors. (Id. at p. 72.)
Plaintiffs also provided
additional excerpts from Besanson’s testimony.
Besanson was a mechanic at Lucky’s Buena Park yard from 1978 to
2000. (Blumenfeld-James Decl., Ex. 3 at
pp. 16, 21.) He worked on new tractors,
including Internationals, working on original brakes, gaskets, and
clutches. (Id. at pp. 21, 38,
40-42.) He frequently worked on brand
new trucks because Lucky’s bought a lot of new trucks each year. (Id. at p. 42.) Drivers would hang out in the truck shop all
the time and be exposed to dust from brake repair work, and “they would get
whatever contamination we had and whatever was blowing around in our shop.” (Id. at pp. 56-58.)
Plaintiffs submitted
evidence that all International tractors were sold with asbestos-containing air
brakes until 1983 or 1984. (Plaintiffs’
Disputed Facts 52.)
Plaintiffs’ evidence shows
a disputed issue about John Doomey’s exposure to asbestos from brakes supplied by
Defendant. Whether John Doomey’s
testimony is inconsistent with other parts of his testimony or discovery
responses and therefore should be discredited, as Defendant argues, is an issue
for the jury.
Defendant argues that
Plaintiff Elizabeth Doomey’s cause of action for loss of consortium is rendered
moot as a matter of law. However, as
described above, Plaintiffs assert triable issues of material fact.
Therefore, the motion is DENIED. The moving party is to give notice.