Judge: Laura A. Seigle, Case: 22STCV11583, Date: 2023-10-05 Tentative Ruling

Case Number: 22STCV11583    Hearing Date: October 5, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT (GOULD)

            Defendant Gould Electronics Inc. filed a motion for summary judgment of Plaintiffs Donald Welt and Dianne Welt’s claims that Donald Welt was exposed to asbestos from Defendant’s products.  Defendant also moved for summary adjudication of the request for 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.)

A.        Motion for Summary Judgment

            Defendant argues Plaintiffs have no evidence that Donald Welt was exposed to asbestos from a product from Defendant.  (Motion at p. 2.)  In response to an interrogatory asking for a description of the products that exposed Welt to asbestos, Plaintiffs stated he worked with Bulldog Electrical Products but did not mention Defendant.  (Undisputed Material Fact (“UMF”) 3, 4.)  Defendant also served an interrogatory asking for all facts supporting Plaintiffs’ claims that Defendant is liable, and Plaintiffs responded that Welt worked around Bulldog Electrical products owned by Defendant.  (Ex. C at p. 2; Ex. D at p. 2.)  At his deposition, Welt testified he does not have a recollection associating Bulldog with any electrical circuits and does not have a recollection of “ever cutting, abrading, drilling, sanding, anything that [he] associate[s] with the name Bulldog.”  (Ex. E at pp. 1050-1051.)  This evidence shows Plaintiffs do not have and cannot reasonably obtain evidence of exposure.

            In opposition, Plaintiffs cite Welt’s deposition testimony that he worked on breaker boxes from Bulldog, he knows the brand because the name was printed on the part, and he worked with the wiring and insulation.  (Ex. C at pp. 121, 122-123.)  This testimony creates a disputed fact whether Welt was exposed to asbestos from Bulldog products.

            Defendant also argues it never made or sold electrical products and has no relationship with any predecessor entity that made or sold electrical products.  (Motion at p. 3.)  However, Defendant does not cite any evidence in support of that assertion and therefore did not shift the burden.

            B.        Motion for Summary Adjudication

            Defendant moves for summary adjudication of the request for punitive damages.   When the motion targets a request for punitive damages, a higher standard of proof is at play.  “Although the clear and convincing evidentiary standard is a stringent one, ‘it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment [or summary adjudication.’  [Citations.]  Even so, ‘where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.’  [Citation.]”  (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1158-1159.)  “Summary judgment or summary adjudication ‘ “ ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.’ ” ’.  [Citation.]”  (Id. at p. 1159.)

For a corporate defendant, the oppression, fraud or malice “must be on the part of an officer, director, or managing agent of the corporation.”  (Civ. Code, § 3294, subd. (b).)  That requirement can be satisfied “ ‘if the evidence permits a clear and convincing inference that within the corporate hierarchy authorized persons acted despicably in “willful and conscious disregard of the rights or safety of others.” ’  [Citation.]”  (Morgan v. J-M Manufacturing Company, Inc. (2021) 60 Cal.App.5th 1078, 1090.)  A plaintiff also “can satisfy the ‘managing agent’ requirement ‘through evidence showing the information in the possession of the corporation and the structure of management decisionmaking that permits an inference that the information in fact moved upward to a point where corporate policy was formulated.’  [Citation.]”  (Id. at p. 1091.)

“ ‘[I]ntentionally marketing a defective product knowing that it might cause injury and death is ‘highly reprehensible.’  [Citation.]”  (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 85.)  Punitive damages may be available when a defendant knows the dangers of asbestos, took action to protect its own employees, knew that its products were likely to pose a danger to users, and did not warn them.  (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1300.)  Such evidence “was sufficient to show malice, that is, despicable conduct coupled with conscious disregard for the safety of others.”  (Id. at pp. 1300-1301.)  

            Defendant argues it served an interrogatory asking for all facts supporting the request for punitive damages, and in response Plaintiffs state it had no facts.  (Ex. C at p. 3; Ex. D at pp. 9-10.)  This is sufficient to shift the burden.

            In opposition, Plaintiffs cite a letter dated November 17, 1978 from Gould Inc. stating asbestos dust caused great concern to its employees and letters from 1979 about asbestos in Gould’s products.  (Motion at pp. 11-12.)  However, Plaintiffs did not show that Gould Inc. was the same company as Bulldog Electrical at the time of Welt’s exposure to Bulldog Electrical products, and Plaintiffs did not submit evidence of the relationship between Gould Inc. and Defendant.  Thus, Plaintiffs failed to show that Gould Inc. owned Bulldog Electrical in 1978 such that Gould Inc.’s knowledge in 1978 is imputed to Bulldog Electrical or that Gould Inc. was responsible in 1978 for Bulldog Electrical’s products. 

            Defendant objects to this evidence, but even if it is admissible, it does not show a disputed issue concerning punitive damages. 

            The motion for summary judgment is DENIED.  The motion for summary adjudication is GRANTED.

            The moving party is to give notice.