Judge: Laura A. Seigle, Case: 22STCV24055, Date: 2023-02-21 Tentative Ruling
Case Number: 22STCV24055 Hearing Date: February 21, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT
A. Summary
Judgment
Defendant
Calportland Company moves for summary judgment on the ground that Plaintiff
Robert Lyons cannot prove exposure to Defendant’s Colton gun plastic
cement. (Motion at p. 6.) Defendant’s objections are overruled.
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 relies on
Plaintiff’s testimony that the gun plastic cement he saw came in green bags; he
saw bags of Colton gun plastic cement at job sites; he did not recall seeing
words like Portland cement, plastic cement, or gun plastic cement on the green
bags; he just noticed that some of the bags were green; he is familiar with
Colton Cement, Colton Plastic Cement, or Colton Gun Plastic Cement; and he does
not have information that the products he saw at a job site was Colton Plastic
Cement or Colton Gun Plastic Cement.
(Levonyan Decl., Ex. J at pp. 48, 50; Ex. K at pp. 277-278.) Colton gun plastic cement came in brown
bags. (Undisputed Material Fact (“UMF”)
6.)
This testimony does not
establish that Plaintiff cannot prove exposure.
He testified he saw bags of Colton gun plastic cement at job sites where
he was working. (Levonyan Decl., Ex. J
at p. 50.) And he testified that some of
the bags he saw were green (id., Ex. K at p. 277), not that ALL of the
bags were green. This testimony would
allow a jury to conclude that Colton gun plastic cement was being used a job
sites where Plaintiff was working.
Therefore, Defendant did not shift the burden.
The motion for summary
judgment is denied.
B. 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.)
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.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 propounded
special interrogatory No. 7 and request for production No. 5 asking for all
facts and documents supporting Plaintiff’s punitive damages claim. (Motion at p. 10; UMF 25.) Plaintiff responded that he saw Colton gun
plastic cement applied to homes when he was working for the Palos Verdes Water
Department during the late 1950s to 1969; Defendant admits it learned about the
hazards of asbestos in 1972; a chemist at Defendant knew of the hazards in the
1960s; in the early 1970s, Defendant began receiving correspondence about the
hazards of asbestos; and at some unidentified time, Defendant prepared a mockup
of a new bag but did not provide warnings to the public. (Levonyan Decl., Ex. H at pp. 10-12.)
This evidence does not
show that during the late 1950s to 1969, Defendant had information at the
management level about the dangers of asbestos as used in its gun plastic
cement and made a willful and conscious decision to disregard the safety of
others. At most, a chemist knew about
the dangers of asbestos in the 1960s. In
addition, Plaintiff listed various people with knowledge, but providing a
laundry list of names is not sufficient.
(Weber, supra 143 Cal.App.4th at p. 1440.) Thus, Defendant shifted the burden.
In opposition, Plaintiff
argues there are late 1960s interoffice memos discussing potential asbestos
replacements. (Plaintiff’s Undisputed
Material Fact (“PUMF”) 21.) PUMF 21
cites generally to Defendant’s Exhibits F, G, H, and I without any specific
page cites, making it very difficult to locate the specific evidence to which Plaintiff
refers. These documents are long,
requiring the court to try to discern what parts of the documents support Plaintiff’s
assertion. The court reviewed all of
Exhibits F, G, H, and I. Exhibits F and
G are Defendant’s special interrogatories and document requests propounded on
Plaintiff. They do not attach any memos
from the 1960s or mention any such memos.
Exhibit H is Plaintiff’s responses to special interrogatories. It refers to one inter-office communication
dated February 24, 1969 discussing different types of asbestos. It does not attach a copy of the memo. It does not state who sent or received the
memo. It does not describe the memo as
stating that asbestos as used in Defendant’s product was dangerous to the
public. (Levonyan Decl., Ex. H at p.
4.) Exhibit I is Plaintiff’s response to
the request for production. It refers to
the same February 24, 1969 memo but does not attach it. ((Levonyan Decl., Ex. I at p. 3.)
The two vague references
to the February 24, 1969 memo do not support Plaintiff’s assertion that 1960s
interoffice memos show Defendant knew about the danger asbestos in its gun
plastic cement at the management level and failed to warn the public.
Plaintiff also refers to
the testimony of Kermit Hayden as evidence that Defendant knew about the dangers
of asbestos in the late 1960s.
(Opposition at pp. 4, 11; PUMF 20.)
However, Plaintiff does not cite any specific testimony from Hayden in his
opposition or PUMF 20. (Ibid.) Nor did Plaintiff attach the transcript of
that testimony. Defendant filed portions
of the Hayden declaration. In those
portion, Hayden testified he did not know of anyone at Defendant who thought
using gun plastic cement in the field presented a health hazard, none of the
companies supplying the asbestos said that making a product from it could be
hazardous, he does not know of anyone claiming they were injured from the
product before 1973, and he received a letter saying there was nothing wrong
with the product. (Levonyan Decl., Ex. B
at pp. 84, 87, 88, 91.) Exhibit B
attaches a letter from 1970. Exhibit B
does not contain any testimony that Hayden knew about the dangers of asbestos
in the late 1960s. Thus, the portions of
the Hayden testimony provided to the court do not support a punitive damages
claim.
In addition, Plaintiff
refers to Peter Hawkins and Jay Grady as having knowledge about punitive
damages but does not state what they know and does not provide their deposition
testimony. Simply naming witnesses is
not sufficient. (Weber, supra 143
Cal.App.4th at p. 1440.)
Plaintiff failed to show
the existence of a disputed issues regarding punitive damages based on his
exposure in the period up to 1969.
The motion for summary
adjudication of the punitive damages claim is granted.
The motion for summary
judgment is DENIED. The motion for
summary adjudication is GRANTED.
The moving party is to
give notice.