Judge: Laura A. Seigle, Case: 22STCV07322, Date: 2022-10-12 Tentative Ruling

Case Number: 22STCV07322    Hearing Date: October 12, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Defendant Stater Bros. Markets (“Defendant”) moves for summary judgment on the ground that Plaintiff Ruth Martin cannot prove she obtained any asbestos-containing product from Defendant.

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 points to Plaintiff’s interrogatory responses.  (Motion at p. 12.)  In response to Defendant’s Special Interrogatory No. 1 asking for all evidence supporting Plaintiff’s contention that she was exposed to asbestos-containing talcum powder sold by Defendant, Plaintiff responded, “Plaintiff Ruth Martin developed malignant mesothelioma as a result of exposure from Defendants’ asbestos, asbestos-containing products and/or equipment solely designed to be used with asbestos-containing products or asbestos-containing products supplied by Defendant (‘Defendants’ Products’), including:  STATER BROS. MARKETS.”   (Defendant’s Compendium, Ex. L at p. 4.)  This is verbatim from Plaintiff’s complaint and is conclusory.  (Complaint at ¶ 3.)  The interrogatory response supplies no evidence that Plaintiff purchased any asbestos-containing talcum powder from Defendant.

In response to requests for admission, Plaintiff admitted that she did not obtain Maja, Jessica McClintock, Chanel, Donna Karan, Fendi, Dior, Estee Lauder, Clinique, Origins or M.A.C. products from Defendant.  (Plaintiff’s Response to Undisputed Material Fact 22.) 

In her deposition, Plaintiff testified she did not purchase Chanel, Yardley, Donna Karan, Fendi, Dior, Maja, Jessica McClintock, Estee Lauder, Lancome, Clinique, Origins or M.A.C. products from Stater Brothers.  She purchased Gold Bond from Walgreens and CVS but does not recall buying it from any other store, and there is nothing she can think of that would refresh her recollection.  (Defendant’s Compendium, Ex. D at p. 593.)  She does not know the store where her husband purchased Gold Bond.  (Id. at pp. 593-594.)  No one besides herself and her husband purchased the Gold Bond she used.  (Id. at p. 594.)  She does not know of anyone else who would know where her husband purchased the Gold Bond.  (Ibid.)

Plaintiff’s son remembers buying powder for his mother from Thrifty’s, Ralphs, Safeway, and a pharmacy in Pasadena; he remembers buying Yardley products; and he remembers Johnson & Johnson and Spanish products in the house.  (Defendant’s Compendium, Ex. E at pp. 29, 128-129.)  He does not have information about other products his mother might have used and does not remember other stores where he might have bought products.  (Id. at pp. 29-30, 129.)  Likewise, Plaintiff’s daughter has no information about Stater Brothers.  (Defendant’s Compendium, Ex. F at pp. 62-63.)

This evidence is sufficient to shift the burden.

Plaintiff contends that her husband bought some of the talcum products she used, and she argues that Defendant failed to establish her husband did not buy Gold Bond powder from Stater Bros.  (Opposition at p. 7.)  That is not correct.  Plaintiff testified that she does not know where her husband purchased Gold Bond and she does not know of anyone else who would know where her husband purchased the product.  (Defendant’s Compendium, Ex. D at pp. 593-594.)  Also, if there is someone else who knows where the husband bought the product, Plaintiff should have named that person in her interrogatory responses.  But she did not.  Defendant’s Special Interrogatory No. 9 asked for the identities of all persons with knowledge of the sources of the asbestos-containing products (among other facts).  (Defendant’s Compendium, Ex. L at p. 12.)  Plaintiff responded by naming herself and no other specific persons.  (Id. at p. 13; see also Ex. K at pp. 8-9.)

Plaintiff argues that Defendant has not shown Plaintiff cannot obtain documentary proof, such as credit card records.  (Opposition at pp. 7-8.)  If Plaintiff has credit card records showing she or her husband bought Gold Bond at Stater Bros., she should have listed those documents in response to interrogatories asking for such documents.  For example, in response to Defendant’s Special Interrogatory No. 1 asking for all evidence supporting Plaintiff’s contentions, Plaintiff should have identified the credit card records.  (Defendant’s Compendium, Ex. L at p. 3.)  She did not.  Instead, she referred generally to “medical documents, employment records and social security records” and “medical, imaging and billing records.”  (Id. at p. 5.)  Plaintiff’s discovery responses do not mention credit card records, and Plaintiff did not produce any credit card records showing she or her husband bought God Bond at Stater Bros.  Therefore, the discovery responses remain factually devoid.

Plaintiff next argues that Defendant failed to question her son about whether he bought her any talcum powder at Stater Bros.  (Opposition at p. 8.)  Again, that is not correct.  The son testified he does not have information about products his mother might have used other than Yardley, Johnson & Johnson and Spanish products, and he testified does not remember stores other than Thrifty’s, Ralphs, Safeway, and a pharmacy on in Pasadena where he might have bought products.  (Defendant’s Compendium, Ex. E. at pp. 29-30, 129.)  He also testified he did not ever purchase Gold Bond for his mother.  (Barley Decl., Ex. 2 at p. 130.)  This testimony establishes that the son does not have knowledge of buying products at Stater Bros. or where the Gold Bond product was purchased. 

            In sum, Defendant presented sufficient evidence that Plaintiff cannot prove she used any asbestos-containing product from Stater Bros., and Plaintiff did not show disputed issue of material fact.

            Therefore, summary judgment is GRANTED for Stater Bros.  Stater Bros. is to file a proposed judgment within five day.

            The moving party is to give notice.