Judge Laura A. Seigle, Case 22STCV20250 2023-01-27 Tentative Ruling

Judge: Laura A. Seigle, Case: 22STCV20250, Date: 2023-01-27 Tentative Ruling

Case Number: 22STCV20250 Hearing Date: January 27, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

Defendant NL Industries filed a motion for summary judgment on the ground that Plaintiff Albert Saltzman has no evidence of exposure to asbestos from a product from Defendant.

A. Objections

Plaintiff’s Objections

No. 1: The court did not rely on this evidence.

Defendant’s Objections to Saltzmann Declaration

Defendant contends the declaration about the insulation material being “chalky grayish-white fibrous material” contradicts his deposition testimony in violation of D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1. In the deposition, Plaintiff stated the insulation looked like grayish-white material. That does not contradict the declaration’s statement that the material was chalky grayish-white and fibrous. The objection is overruled.

Defendant’s Objections to Renken Declaration

No. 1: Overruled.

Nos. 2-21: The court did not rely on this evidence.

Defendant’s Objections to Garza Declaration

See below.

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 moves for summary judgment on the ground that Plaintiff has no evidence of asbestos at Defendant’s facility where Plaintiff worked on occasion or that any of Defendant’s employees performed work that exposed Plaintiff to asbestos. (Motion at p. 8.) (Defendant also moved on Privette grounds but Plaintiff disclaims any claim that Defendant retained control or is liable under any ground discussed in Privette. (Opposition at p. 1.).) Defendant cites to Plaintiff’s response to interrogatories. (Motion at p. 8; Undisputed Material Fact “UMF” 9.) Interrogatory No. 3 asked for a description of each product of Defendant that exposed Plaintiff to asbestos. (Giaquinto Decl., Ex. C at p. 1.) Plaintiff responded that he worked as a contract worker at Defendant’s facility in Vernon between 1974 and 1979, Defendant’s employees were working around him removing old insulation that was grayish-white and fibrous, the work was dusty, and Defendant did not take precautions when the asbestos work was being done. (Id., Ex. E at pp. 2-3.) The response cites Plaintiff’s deposition testimony about his work at Defendant’s facility. This response is not factually devoid.

And even if it were factually devoid, in opposition Plaintiff provided his declaration stating he worked around Defendant’s employees who were removing insulation that was chalky, grayish-white, and fibrous. (Saltzmann Decl., ¶ 4.) Plaintiff also filed a declaration of Kenneth Garza explaining that old insulation from the 1970s could only have been asbestos containing insulation because no non-asbestos pipe insulation matching Plaintiff’s description existed at that time. (Garza Decl. at p. 56.) Defendant objects that Garza lacks foundation for this conclusion. (Reply at p. 3.) However, Garza explains his expertise regarding asbestos and the reasons for concluding that the old insulation in the 1970s must have been asbestos-containing. This is sufficient to create a disputed issue of material fact.

Defendant makes a new argument in its reply that because Plaintiff did not always wear his mask, he was a superseding cause. However, to prove this affirmative defense, Defendant would also need to prove that the superseding cause was not foreseeable. (Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1032.) Defendant has not submitted evidence on that point, and in any event, a worker taking off a mask arguably is foreseeable.

The motion for summary judgment is denied.

C. Summary Adjudication

Defendant also moves for summary adjudication of the punitive damages claim. 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.)

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 the asbestos in talc “would cause a high probability of injury.” (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 873.)

Defendant cites to Plaintiff’s response to an interrogatory asking for all facts and evidence supporting the claim for punitive damages. (Motion at p. 3; UMF 10.) Plaintiff responded by incorporating the response to interrogatory No. 2. (Giaquinto Decl., Ex. D at p. 11.) The response to interrogatory No. 2 referred to Plaintiff’s deposition, unspecified records of Defendant, Plaintiff’s records, and the deposition of Paige Savage. (Id., Ex. E at pp. 7-8.) The response did not identify specific evidence showing Defendant acted with malice, fraud or oppression. The response was factually devoid, and Defendant shifted the burden.

In opposition, Plaintiff points to his own separate statement of disputed facts Nos. 22-30. (Opposition at p. 16.) Plaintiff contends Defendant obtained a patent in 1973 stating asbestos causes mesothelioma and exposure must be minimized. (Plaintiff’s Undisputed Material Fact “PUMF” 23, 24.) Also, Plaintiff’s declaration describes Defendant’s employees removing the insulation in a way that could be understood as not minimizing exposure, i.e., by doing the work with other workers nearby and creating dust. (Saltzmann Decl., ¶ 4.) This evidence creates disputed issues of material fact about Defendant’s knowledge of the dangers of asbestos and the need to minimize exposure during the time period when Plaintiff was working at Defendant’s facility next to Defendant’s employees who were removing allegedly asbestos-containing insulation, whether Defendant took steps to minimize exposure when that insulation was being removed, and whether Defendant acted with conscious disregard for the safety of others when it allegedly failed to take such steps. The court cannot conclude that no reasonable jury could find clear and convincing proof of malice, fraud or oppression.

NL Industries’ motion for summary adjudication is denied.

Therefore, the motion for summary judgment or summary adjudication is DENIED.

The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

Defendant Ameron International Corporation (“Defendant”) filed a motion for summary adjudication of Plaintiff Albert Saltzmann’s third cause of action for false representation, fourth cause of action for intentional tort, and sixth cause of action for negligence under Civil Code section 1714, as well as the claim for punitive damages. Plaintiff claims he was exposed to asbestos from Defendant’s pipe’s at various jobsites. (Opposition at p. 2.)

I. Objections

B. Plaintiff’s Objections

No. 1: Overruled.

B. Defendant’s Objections

Saltzmann Deposition: Objections are overruled.

Exhibits F, H, I, J, K, L, M: The court did not rely on this evidence.

II. Third Cause of Action – False Representation

Defendant argues Plaintiff cannot prove his false representation cause of action because he has no evidence of any representation by Defendant to him and because Defendant had no duty to make a disclosure to Plaintiff. (Motion at pp. 5, 6.)

Plaintiff allegeS a cause of action for “False Representation Under Restatement of Torts Section 402-B.” (Complaint at p. 20.) Section 402-B establishes “liability for injuries caused by justifiable reliance on false advertising.” (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1750.) Under this section “ ‘[o]ne engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though [¶] (a) it is not made fraudulently or negligently, and [¶] (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.’ [Citation.]” (Id. at pp. 1750-1751.) “The rule ‘is one of strict liability for physical harm to the consumer, resulting from a misrepresentation of the character or quality of the chattel sold, even though the misrepresentation is an innocent one, and not made fraudulently or negligently.’ [Citation.]” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 114.)

Under section 402-B, the plaintiff does not need to have relied on a misrepresentation. The “‘reliance need not necessarily be that of the consumer who is injured. It may be that of the ultimate purchaser of the chattel . . . who because of such reliance passes it on to the consumer who is in fact injured, but is ignorant of the misrepresentation.’ [Citation.]” (Westlye, supra, 17 Cal.App.4th at p. 1751.) Plaintiff alleges he was exposed to asbestos when he worked at various refineries and jobsites. (Complaint, Ex. A.) Therefore, this is a situation where the ultimate purchaser of the product is not the plaintiff. Because this cause of action does not require evidence that Plaintiff, as opposed to the ultimate purchaser, knew about or relied on any representation by Defendant, this argument fails.

Defendant cites no law that section 402-B requires a special relationship.

The motion for summary judgment is denied.

III. Fourth Cause of Action – Intentional Tort

The fourth cause of action alleges torts under Civil Code sections 1708 through 1710. Section 1708 states generally that a person is to abstain from injuring another person. That does not create a cause of action. Sections 1708.5-1708.9 are about sexual battery, domestic violence, harassment, invasion of privacy, distribution of sexually explicit photos and video, and preventing entrance into a school or health facility. No such act is alleged in the complaint, these sections are completely irrelevant to this case, and they should not have been included in the complaint. Sections 1709 and 1710 state that a person may be liable for damage caused by willful deceit, defined as including “[t]he suggestion, as a fact, of that which is not true, by one who does not believe it to be true,” [t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true,” “[t]he suppression of a fact, by one who is bound to disclose it, or who give information of other facts which are likely to mislead for want of communication of that fact,” and “[a] promise, made without any intention of performing it.”

Defendant argues Plaintiff cannot prove his intentional tort cause of action because no requisite relationship existed between Plaintiff and Defendant and Defendant made no statement to Plaintiff. (Motion at pp. 7-8.) As an initial matter, it is difficult to determine the basis for the fourth cause of action – does Plaintiff allege a false statement or concealment or a promise made without any intention to perform – because the complaint is very vague and does not allege any specific facts about Defendant’s alleged affirmative fraud, concealment, for false promise. According to Plaintiff’s opposition, Plaintiff contends that Defendant concealed its knowledge about the danger of its pipe products and Plaintiff relied on that concealment. (Opposition at pp. 11-12.) Thus, it appears Plaintiff is alleging a concealment cause of action.

“ ‘[T]he elements of a cause of action for fraud based on concealment are “ ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’ ” [Citation.]’ ” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311.) When a fiduciary duty does not exist, a duty to disclose arises only “when the defendant had exclusive knowledge of material facts not known to the plaintiff,” or “when the defendant actively conceals a material fact from the plaintiff,” or “when the defendant makes partial representations but also suppresses some material facts.” (Id. at p. 311.) This type of relationship “ ‘can only come into being as a result of some sort of transaction between the parties’ ” and “must necessarily arise from direct dealings between the plaintiff and the defendant; it cannot arise between the defendant and the public at large.” (Ibid.)

Plaintiff does not address Bigler and do not allege any direct dealings between Plaintiff and Defendant. Therefore the motion for summary adjudication is granted as to the fourth cause of action.

IV. Sixth Cause of Action – Negligence Under Civil Code Section 1714

The sixth cause of action alleges Defendant was negligent under Civil Code section 1714. That section states each person is responsible for “an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” The complaint is vague about how Defendant was negligent under this section, as distinct from Defendant’s negligence under the first cause of action for negligence. Plaintiff states in a footnote that he is not pursing this cause of action against Defendant. (Opposition at p.1 n.1.) Therefore the motion is granted.

V. Punitive Damages

Defendant contends Plaintiff cannot prove Defendant acted with oppression, malice or fraud. 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.)

“ ‘[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.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 the asbestos in talc “would cause a high probability of injury.” (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 873.)

Defendant cites to Plaintiff’s discovery responses. (Motion at p. 10; Undisputed Material Fact “UMF”3, 4, 9.) In response to interrogatory No. 5 asking for all facts supporting the claim for punitive damages, Plaintiff incorporated his answer to interrogatory No. 1. (Index, Ex. C at p. 3; Ex. E at p. 10.) His response to interrogatory No. 1 stated Defendant was a member of trade organizations, knew about the health hazards of asbestos, began the process of removing asbestos from its products and researching alternative products, and considered giving but did not give warnings to customers and users. Plaintiff cited specific documents and statements from defense personnel about these issues. (Index, Ex. E. at pp. 3-6.) This discovery response is not factually devoid. Defendant did not shift the burden.

The motion for summary adjudication is DENIED as to the third cause of action and punitive damages and GRANTED as to the fourth and sixth causes of action.

The moving party is to give notice.