Judge: Laura A. Seigle, Case: 22STCV18569, Date: 2023-02-03 Tentative Ruling

Case Number: 22STCV18569    Hearing Date: February 3, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Defendant W.W. Grainger, Inc. filed a motion for summary judgment on the ground that Plaintiffs Anthony Adams and Janice Adams have no evidence of exposure to asbestos from a product from Defendant.

            A.        Objections

            Plaintiffs’ Objections

            Nos. 1-15:  The court did not rely on this evidence. 

            Defendant’s Objections

            Nos. 1-9:  The court did not rely on this evidence.

            B.        Summary Judgment

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 served an interrogatory asking Plaintiffs to identify all of Defendant’s products that caused the injury.  (Undisputed Material Fact (“UMF”) 14.)  Plaintiffs responded that Defendant supplied asbestos-containing gaskets and packing, and Plaintiffs were still investigating.  (UMF 15.)  In response to an interrogatory asking Plaintiffs to state all facts supporting their contention that Defendant’s products exposed Anthony Adams to asbestos, Plaintiffs responded Defendant sold gaskets and other equipment for servicing motors and obtained packing for replacing gaskets from Defendant.  (Index, Ex. 7 at pp. 2-3, Ex. 8 at pp. 2, 4.)  Plaintiffs identified themselves as having knowledge of this.  (Id. at p. 6.) 

At his deposition, Anthony Adams testified that 80 percent of the time he made gaskets from Garlock gasket material.  (Van Aelystyn Decl., Ex. B at pp. 75-76.)  He went to Defendant’s location in Fresno a handful of times if they needed a gasket or seal or something, but generally a delivery guy would pick up items from Defendant.  (Index, Ex. 23 at p. 77; Ex. 25 at p. 320.)  He knew gasket material was from Defendant because it came in a bag with Defendant’s name on it.  (Index, Ex. 23 at p. 78.)  He does not know if his employer Allied Electric ordered products from Defendant but he thinks he did receive products at Allied Electric from Defendant.  (Index, Ex. 25 at p. 415.)  He would order a part and be told the part was coming from Defendant and it would show up.  (Id. at p. 417.)  He does not know if his employer had an account with Defendant.  (Id. at p. 421.)  He had a Grainger catalog that he kept in his toolbox.  (Ibid.)  He could not specifically remember what he ordered from the catalog, maybe seals or gaskets or v-rings or a lot of materials in the catalogs, but he does not remember the brand name.  (Id. at pp. 422, 440.)  He was involved in buying motors from Defendant but does not remember the brand name.  (Id. at pp. 425, 437-438.)  He remembers having somebody go to Defendant’s location and get packing they were out of in the 1980 to 1983 and 1987 to 1997 time frames.  (Id. at pp. 428-429, 433.)  His employer used Defendant off and on, and he remembers going to Defendant’s catalog, finding the parts to order, and having them picked up.  (Id. at pp. 430, 431.)  He testified Chuck Arntz would have more information.  (Id. at p. 434.)  Defendant supplied his employer with sheet gasket material and precut gaskets.  (Id. at p. 435.)  He also used parts from Defendant when he worked at Electric Motor Shop but does not remember the specific parts.  (Id. at pp. 443, 444.) 

Plaintiff argues the discovery responses are not factually-devoid because Anthony Adams testified he used gasket sheet material that was ordered from Defendant and came in a bag with Defendant’s name.  (Plaintiffs’ Undisputed Material Fact (“PUMF”) 9.)  At pages 75 to 78 and 435, Anthony Adams testified that he used Garlock sheet gasket material from Defendant to make gaskets.  Plaintiff contends it is undisputed that this gasket sheet material contains asbestos.  (Opposition at p. 1 n. 2.)  Defendant does not contend otherwise in its reply.

Plaintiff has shown the discovery responses are not factually-devoid, and the burden does not shift.  Therefore, the motion for summary judgment is DENIED. 

The moving party is to give notice.