Judge: Laura A. Seigle, Case: 22STCV07322, Date: 2022-10-21 Tentative Ruling

Case Number: 22STCV07322    Hearing Date: October 21, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Plaintiff Ruth Martin alleges she was injured as a result of exposure to asbestos-containing products, including from asbestos in talc supplied by Defendant Color Techniques, Inc. (“Defendant”).  (Complaint, ¶ 3.)  On August 4, 2022, Defendant filed a motion for summary judgment and summary adjudication on the grounds that Plaintiff cannot prove Defendant supplied any asbestos-containing products to which she was exposed, cannot prove her fraud cause of action, and has no evidence supporting punitive damages.

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 argues that Plaintiff failed to identify any product from Defendant that caused her injury.  Defendant points to Plaintiff’s response to Special Interrogatory No. 1 asking for all facts supporting the contention that Defendant is liable to Plaintiff.  (Motion at p. 7.)  In response to Special Interrogatory No. 1, Plaintiff stated she was injured as a result of Defendant’s products.  (Appendix, Ex. G at pp. 4-5.)  This response is conclusory, as are Plaintiff’s other responses.

            Plaintiff responds that she was exposed to asbestos from the talc in cosmetics, including Chanel, Estee Lauder, and M.A.C. products.  (Opposition at pp. 4-5; Barley Decl., Ex. 1 at pp. 56, 74-75.)  Defendant supplied talc to Chanel, Estee Lauder, and M.A.C.  (Opposition at p. 6; Barley Decl., Ex. 6 at p. 4.) 

Plaintiff seeks a continuance or denial of the motion pursuant to Code of Civil Procedure section 437(c), subdivision (h) because Defendant failed to make its PMK witness available for a deposition.  On August 5, 2022, Plaintiff served a notice for the deposition of Defendant’s PMK to take place on August 17, 2022.  Defendant objected.  On August 16, 2022, Plaintiff asked to schedule the deposition on a date no later than September 6, 2022 to complete it before the deadline for filing the opposition to Defendant’s motion for summary judgment.  Defense counsel stated they were not available before September 6, 2022 due to a trial in another case.  On August 26, 2022, Plaintiff’s counsel again asked for a deposition date.  On September 7, 2022, defense counsel stated that they were still working on finding a deposition date.  Plaintiff’s counsel responded that the deposition needed to go forward no later than September 19, 2022 so Plaintiff’s counsel had enough time to oppose the summary judgment motion.  Defense counsel stated that the lead attorney had started a trial and apparently was unavailable for the deposition.  On September 12, 2022, Plaintiff’s counsel stated they needed the deposition scheduled as soon as possible.  Defense counsel responded she was in trial, would see what she could do to schedule a deposition, and she asked for a date.  (Barley Decl., Ex. 3.)

Defense counsel states Plaintiff’s counsel never responded to her September 12, 2022 email, and she told Plaintiff’s counsel on the phone that another attorney would defend the deposition.  (Dubois Decl., ¶¶ 5-8.)  The parties exchanged emails on September 22 and 27, 2022, October 3, 4, 9, 10, and 12, 2022, eventually agreeing on October 19, 2022 for the deposition.  (Id., Exs. 1-10.)

This timeline shows that immediately after receiving the motion for summary judgment, defense counsel noticed the deposition of Defendant’s PMK witness on topics pertinent to the motion, such as the sources of Defendant’s talc, the purchasers of Defendant’s talc, testing of Defendant’s talc for asbestos, Defendant’s knowledge of the dangers of asbestos, Defendant’s policies and procedures regarding warning about asbestos, and other topics.  (Barley Decl., Ex. 3 at pp. 2-8.)  These are topics about facts essential to justify opposition to the motion for summary judgment, in particular whether the talc Defendant supplied to Chanel, Estee Lauder, and M.A.C contained asbestos and whether it ended up in the products Plaintiff used.  For example, evidence of the sources of Defendant’s talc could provide evidence that its talc contained asbestos.

When Defendant failed to provide a witness, Plaintiff quickly and diligently followed up.  Yet Defendant did not provide a PNK witness before Plaintiff’s opposition to the summary judgment motion was due.  Defendant’s excuse that one of its attorneys was not available is not good grounds for refusing to make a noticed PMK witness available for deposition, even if that attorney is the lead trial lawyer.  Defendant’s law firm is a large national firm with many attorneys.  The summary judgment motion caption lists three attorneys working on this case.  If one attorney is unavailable to defend a deposition, the law firm needs to find another attorney to defend the deposition. 

This is especially true in a preference case.  From the time preference was granted on June 29, 2022 and the trial setting order was signed on July 8, 2022, the parties knew the deadlines for filing and opposing motions for summary judgment.  Defendant should have expected Plaintiff would want to take its PMK’s deposition to oppose the motion for summary judgment and should have planned for that event. 

Defendant argues Plaintiff should have taken the PMK deposition earlier, before Plaintiff first noticed the deposition in August 2022.  Plaintiff did not have Defendant’s summary judgment motion until August 5, 2022, and waiting to take the deposition until after receiving the motion does not make the deposition notice too late.  When Plaintiff received the motion, Plaintiff’s counsel immediately noticed the deposition.

In sum, Plaintiff satisfied the requirements of section 437c, subdivision (h) via the Barley Declaration showing that facts essential to justify opposition may exist but cannot be presented because Defendant failed to make its PMK witness available for a deposition.  Trial is in three days.  Because this is a preference case, the trial cannot be continued to allow the deposition to go forward and new briefing to be filed, especially because Defendant did not show good cause for not making the PMK witness available in August or September when there was still enough time to obtain the transcript and use it to oppose the motion.  Therefore, the motion is DENIED.

The moving party is to give notice.