Judge: Laura A. Seigle, Case: 22STCV18719, Date: 2024-03-15 Tentative Ruling

Case Number: 22STCV18719    Hearing Date: March 26, 2024    Dept: 15

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

On June 7, 2022, Plaintiff Claudia Ann Smith filed this action alleging she developed mesothelioma as a result of exposure to asbestos from Defendant Estee Lauder Companies Inc.’s products.  Defendant filed a motion for summary adjudication of Plaintiff’s punitive damages claim.

Plaintiff’s Objections: The court did not rely on the Alfieri Declaration.

Defendant’s Objection Nos. 1-4, 8:  The court did not rely on these exhibits.

Defendant’s Objection Nos. 5-7:  Overruled.

Defendant argues that Plaintiff lacks clear and convincing evidence Defendant engaged in malice, oppression, or fraud sufficient to impose punitive damages.  (Motion at p. 1.)  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 decision making 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 from the hazard, 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.Ap.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.) On the other hand, a defendant’s knowledge of trace amounts of asbestos in talc does not necessarily mean that the defendant knew that asbestos in talc “would cause a high probability of injury.” (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 873.)

Defendant argues Plaintiff’s discovery responses are factually deficient, citing Plaintiff’s responses to special interrogatories asking for all facts and people supporting punitive damages. (Motion at pp. 2-3; Cosgrove Decl., Ex. C at p. 4.)  Plaintiff responded that she, from her early adolescence and throughout her life, applied loose face powder, pressed face powder, blush and eyeshadow under several brand names, including but not limited to, Defendant’s brands Estee Lauder, Clinique, Mac, and Smashbox.  (Cosgrove Decl., Ex. E at pp. 2, 11.)  Plaintiff’s application of the Defendant’s products allegedly created asbestos-containing dust.  (Id. at p. 2.)

The response also states Defendant became a member of the Cometic, Toiletry, and Fragrance Association (“CTFA”) in 1971 and had the availability to conduct its own testing, including with the J4-1 method and electron microscopy, but instead relied on suppliers’ and distributors’ XRD testing for asbestos, which it alleges had known shortcomings.  (Id. at pp. 3-4.)  Plaintiff names Whittaker, Clark, & Daniels Inc. as one of Defendant’s many talc suppliers and cites a 1976 memorandum to the FDA alluding to concerns about assurances to consumers.  (Id. at pp. 4-5.)  Plaintiff states that Defendant knew about the dangers of asbestos, referring to a report from the CTFA to its active members in 1971.  (Id. at p. 6.)

These documents are not evidence that Defendant knew the talc in its products contained asbestos causing a high probability of injury to consumers, and Defendant made a corporate decision to ignore that information and not warn customers.  (McNeal, supra, 80 Cal.App.5th at p. 873.)  Therefore, Defendant shifted the burden.

In opposition, Plaintiff argues that Defendant learned about the hazards of asbestos and the potential for asbestos in talc by 1971 but allowed its suppliers to perform inadequate testing and did not warn end users.  (Opposition at pp. 1-2.)  Plaintiff cites evidence of Defendant’s CTFA membership in 1971 including various senior personnel – i.e., president, vice president, and director of research and development.  (Plaintiff’s Disputed Fact No. 10.)  Plaintiff also cites CTFA’s 1973 report to the Food and Drug Administration stating the Italian talc grade 1615 used by Defendant tested as false negatives and recommending transmission electronic microscopy and electric diffraction as the most reliable method of detecting chrysolite and tremolite.  (Opposition at pp. 2-3; Plaintiff’s Disputed Fact No. 13.)

Plaintiff does not mention McNeal, its analysis of the 1970s documents, and its holding that knowledge that asbestos is dangerous does not allow the inference that participants in the talc industry knew that asbestos in talc used in cosmetic would have probable dangerous consequences for consumers.  (See, e.g., McNeal, supra, 80 Cal.App.5th at pp. 874-875, 878.)  Plaintiff’s evidence does not show that during the period of Plaintiff’s exposure, Defendant knew that asbestos in the talc used in Defendant’s products posed a probable danger to consumers of those products.  

In sum, Plaintiff did not show a disputed issue about whether Defendant knew its talc products were probably dangerous to consumers and yet continued to market them to consumers without warnings.

The motion for summary adjudication is GRANTED on the claim for punitive damages.

The moving party is to give notice.