Judge: Laura A. Seigle, Case: 23STCV08396, Date: 2023-09-14 Tentative Ruling
Case Number: 23STCV08396 Hearing Date: January 19, 2024 Dept: 15
[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT; MOTION TO BIFURCATE
I. Motion for Summary Judgment
Plaintiffs Kathleen Hiland and John Hiland and filed this action on April 14, 2023 alleging Kathleen Hiland was exposed to asbestos via her father’s work on airplanes of Defendant United Airlines, Inc. and its predecessor Continental Airlines from 1960 to 1990. (Opposition at pp. 2-3.) Defendant filed a motion for summary judgment on the ground that the action is barred by its previous bankruptcy, which Defendant asserted as an affirmative defense. (Defendant’s Amended Answer at p. 12.)
A defendant may move for summary judgment when an affirmative defense is a bar to all of the claims against the defendant. (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1216 n.12.) When a defendant moves for summary judgment arguing that an affirmative defense bars the entire case against the defendant, the defendant has the initial burden of adducing evidence of that affirmative defense. Then the burden shifts to the plaintiff to raise a triable issue of material fact. (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1740.)
Defendant contends that it exited Chapter 11 bankruptcy in 2006. (Undisputed Material Fact No. 4.) It includes a declaration from the bankruptcy court appointed claims and noticing agent for Defendant’s bankruptcy, stating the bankruptcy court confirmed Defendant’s plan of reorganization on January 20, 2006, with an effective plan date of February 1, 2006. (Wheelon Decl., ¶¶ 1, 4.)
For a Chapter 11 corporate debtor, the confirmation of a plan discharges the debtor from any debt that arose before the date of such confirmation even if no claim was filed. (11 U.S.C. § 1141(d)(1)(A).) “If potential future tort claimants have not filed claims because they are unaware of their injuries, they might challenge the effectiveness of any purported notice of the claims bar date. Discharge of such claims without providing adequate notice raises questions under the Fourteenth Amendment.” (In Re Grossman’s Inc. (3rd Cir. 2010) 607 F.3d 114, 122.) “Any application of the test to be applied cannot be divorced from fundamental principles of due process. Notice is ‘[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality. . . .’ [Citation.]” (Id. at pp. 125-126.) “Inadequate notice therefore ‘precludes discharge of a claim in bankruptcy.’ [Citation.]” (Id. at p. 126.) Among other factors to consider in determining whether an asbestos plaintiff’s claims have been discharged by a plan of reorganization are “the circumstances of the initial exposure to asbestos, whether and/or when the claimants were aware of their vulnerability to asbestos, whether the notice of the claims bar date came to their attention, whether the claimants were known or unknown creditors, whether the claimants had a colorable claim at the time of the bar date, and other circumstances specific to the parties, including whether it was reasonable or possible for the debtor to establish a trust for future claimants as provided by § 524(g).” (Id. at pp. 127-128.)
Nowhere in Defendant’s moving papers does Defendant discuss the issue of notice, even though it cites the Grossman’s decision, which addresses the importance of notice at length. Defendant’s separate statement does not mention notice. Because Defendant did not show that Plaintiffs had notice, it did not satisfy its initial burden of showing this action is barred by Defendant’s prior bankruptcy.
Defendant also argues it shifted the burden because Plaintiffs’ discovery responses are factually devoid. (Motion at pp. 3-4.) This argument is baseless. First, Defendant has the burden of proving its affirmative defense. Therefore, Defendant cannot base its motion on the assertion that Plaintiffs have no evidence defeating Defendant’s affirmative defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 473 [“ ‘[I]t is not plaintiff’s initial burden to disprove affirmative defenses . . . asserted by defendant’ ”].) Second, in support of this argument, Defendant cites Plaintiffs’ response to interrogatory No. 4. (Undisputed Material Fact 5.) That interrogatory asked for all facts supporting the contention that Defendant is not immune to suit based on the bankruptcy. (Thacker Decl., Ex. C at p. 3) Plaintiffs responded with only objections. (Id., Ex. D at pp. 18-19.) Yet, Defendant did not move to compel a substantive response. Defendant cannot prove that Plaintiffs have no evidence based on an answer consisting of only objections.
The motion is DENIED.
The moving party is to give notice.
II. Motion to Bifurcate
Defendant United Airlines filed a motion to bifurcate its affirmative defense that all claims against it should be discharged by its prior bankruptcy. No party opposed.
Pursuant to Code of Civil Procedure section 598, a court may order that a trial on an issue precede trial on other issues to promote economy and efficiency in the litigation.
As discussed above in connection with Defendant’s motion for summary judgment, a confirmed reorganization plan can discharge even unknown claims under certain circumstances. If Defendant is able to prove its affirmative defense, the defense will be a complete bar to Plaintiffs’ claims against Defendant. Therefore, it is more efficient to try Defendant’s affirmative defense first. It is up to the trial court to determine how that should take place.
The motion is GRANTED.
The moving party is to give notice.
Kathleen Hiland and John
Hiland filed this action alleging Kathleen Hiland developed mesothelioma as a
result of exposure to asbestos-containing products. Defendant The Sherwin-Williams Company filed a
motion for summary judgment and a motion for summary adjudication of
Plaintiffs’ punitive damages request.
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 contends
Plaintiffs have no evidence Kathleen Hiland was present when her father and
husband used products from Defendant that contained asbestos, citing Plaintiffs’
interrogatory responses. (Motion at p. 1.) In response to interrogatories asking for all
facts supporting Plaintiffs’ claims against Defendant, Plaintiffs responded
that Kathleen Hiland was exposed to Defendant’s asbestos-containing products
through her father’s and husband’s repair and maintenance jobs on their family
homes from the 1960s to the 1990s. (Undisputed
Material Fact 2.) Her father and husband
applied Defendant’s paint product, sanded the paint, and scraped and swept the
resulting dust. The dust was caught on their
clothing. (Ibid.) Kathleen Hiland spent time with her father and
husband when their clothes were dusted with the asbestos fibers, and she handled
the laundry afterwards. (Ibid.) Further, in response to document requests,
Plaintiffs identified deposition testimony of Defendant’s corporate representatives
and Plaintiffs’ experts; Plaintiffs’ employment, medical, and social security
records; and any documents propounded through discovery. (Defendant’s Index, Ex. I at pp. 4-5.)
Defendant also submitted Kathleen
Hiland’s deposition testimony. She
testified that during the 1960s through the 1980s, her father used paint from Defendant.
(Defendant’s Index, Ex. J at pp. 64-65.)
She did not recall any writings,
markings, or logos on the cans other than the name Sherwin Williams. (Id. at p. 298.) The paint was water-based flat or a
latex-based semi-gloss or gloss, a smoother consistency. (Id. at p. 300.) She could not identify a particular occasion
where her father sanded Sherwin-Williams paint. (Id. at p. 312.) She did not testify about her husband’s work
with Sherwin-Williams paint. (Motion at
p. 4.)
Kathleen Hiland’s sister,
Julie Smith, testified that Sherwin-Williams was the least commonly used brand
of paint. (Defendant’s Index, Ex. K at
pp. 36.) The Sherwin-Williams paint was
smooth wall paint, and she did not recall if it had any texture. (Id. at p. 179.) She did not recall any
writings, markings, or logos other than “Sherwin Williams” and did not know the
specific product line of paint her father used. (Id. at pp. 179-180.) There was little dust. (Id. at p. 40.) She could not recall any instance her father
sanded Defendant’s paint. (Id. at
p. 184.) She did not testify about
Kathleen Hiland’s husband working with Defendant’s paint. (Motion at p. 4.)
The deposition testimony
and discovery responses do not provide evidence that Kathleen Hiland was exposed
to a type of Defendant’s paint that contained asbestos. Defendant has shown that Plaintiffs do not
have, and cannot obtain, evidence that Kathleen Hiland was exposed to
asbestos-containing products from Defendant, and thus shifted the burden.
In opposition, Plaintiffs
filed additional excerpts from Kathleen Hiland’s deposition where she testified
that in 1967 through 1986, her father consistently using Defendant’s paint, and
she identified the paint by describing the labels, color, and lettering on the
containers. (Eyerly Decl., Ex. 1 at pp. 60,
64-66; Ex 2 at pp. 293-294.) He used
white or off-white Sherwin-Williams paint. (Eyerly Decl., Ex. 3 at p. 341.) He sanded every paint he used, including Defendant’s
paint, and she was occasionally within three to four feet of the sanding. (Eyerly Decl., Ex. 1 at pp. 59, 69; Ex. 2 at pp.
305-306.)
Plaintiffs argue that they
can prove exposure to asbestos because most of Defendant’s paints contained asbestos-contaminated
talc from Vanderbilt. (Opposition at p.
7.) In support of this assertion,
Plaintiffs cite and attach excerpts from three deposition transcripts of
Elizabeth Gilbert and a deposition transcript from Paul Vanderbilt. (Eyerly Decl., Exs. 8-11.) (Plaintiffs filed one of these transcripts a
week late.) Defendant objects that the
transcripts are hearsay, citing Berroteran v. Superior Court (2022) 12 Cal.5th
867. (Reply at pp. 1-2; Defendant’s
Evidentiary Objections at pp. 4, 7, 8.)
In
Berroteran, the California Supreme Court explained that Evidence Code
section 1291 treats former deposition testimony differently than former trial
testimony. (Berroteran, supra, 12
Cal. 5th at p. 891.) “The interest and
motive of an opposing party at a discovery deposition is therefore often against
cross-examination of the witness, in order to avoid assisting the deposing
party.” (Id. at p. 892.) Also, even if an opposing party has an
interest in cross-examination, the opportunity may not be ideal if discovery is
ongoing and the evidentiary record is not yet complete. (Id. at pp. 892-893.) However, sometimes a deposition is intended
to preserve testimony for trial. (Id.
at p. 894.) Therefore, “[t]he party
seeking admission of prior deposition testimony under [section 1291] is free to
submit evidence to the court that the deposition sought to be introduced,
unlike a typical discovery deposition, featured circumstances that provided the
party opponent with an interest and motive for cross-examination similar to
that at trial.” (Id. at p.
894.) “The party urging admission of
deposition testimony bears the burden of rebutting the general rule by
submitting appropriate information justifying the admission of designated
deposition testimony.” (Id. at p.
895.)
The
Berroteran court outlined the following factors to consider in
determining whether former deposition testimony is admissible under section
1291: (a) whether the parties intended
at the outset that the deposition serve as trial testimony; (b) whether the
parties subsequently reached agreement to use the deposition at the trial in
that earlier case or in other cases; and (c) other practical considerations
such as the timing of the deposition in the earlier litigation, whether a
mediation or settlement conference was scheduled for after the deposition, the closeness
in relationship between the opposing party and deponent, the anticipated
availability of the deponent in the earlier case, whether a statutory rule such
as Code of Civil Procedure section allowed the parties to use the deposition at
the earlier trial, the extent of cross-examination in the deposition, the
particular designated testimony, and the similarity of the lawsuits.
Here Plaintiffs did not “submit
evidence to the court that the depositions sought to be introduced . . . featured
circumstances that provided [Defendant] with an interest and motive for
cross-examination similar to that at trial.”
(Id. at p. 894.)
Plaintiffs did not address the Berroteran issues specifically or
the admissibility of the Gilbert and Vanderbilt transcripts generally, even
though their arguments hinge on those transcripts. The contents of the deposition excerpts do
not show the parties intended the transcripts to serve as trial testimony or
that defense counsel had a motive and interest in cross-examining the
witness. (Eyerly Decl., Exs. 8-11.) The excerpts contain no examination by
Defendant’s counsel, or any defense counsel.
There is no evidence of the various Berroteran factors other than
that the depositions were videotaped.
Because Plaintiffs did not rebut the general rule by submitting
appropriate information justifying the admission of the Gilbert and Vanderbilt deposition
transcripts (Berroteran, supra, 12 Cal. 5th at p. 895), the objections to the four transcripts
are sustained.
That
leaves only Plaintiffs’ Exhibits 12 and 13 in support of their opposition. Exhibit 12 is a mineral safety data sheet
from Vanderbilt showing asbestos in Vanderbilt’s talc. (Eyerly Dec., Ex. 12. ) But it is not evidence that Defendant used
Vanderbilt’s asbestos-containing talc in most of Defendant’s paints or in the
type of paint to which Hiland was exposed.
Exhibit
13 is a declaration from Plaintiffs’ expert stating he read various materials,
including the Gilbert deposition transcripts and other documents that Plaintiffs
did not file, and concluded that Hiland was exposed to asbestos in Defendant’s
paint. Defendant objected to the
declaration as containing inadmissible hearsay, citing People v. Sanchez
(2016) 63 Cal.4th 665. The expert’s conclusion
is not admissible because it is based on the inadmissible Gilbert deposition
transcript and contents of other documents that Plaintiff did not file and did
not show are admissible. (Sanchez,
supra, 63 Cal.4th at p. 684.) An expert
declaration that parrots the contents of inadmissible or not-admitted documents
is not admissible. The objections are
sustained.
Because Plaintiffs have
not shown a disputed issue of fact concerning the presence of asbestos in most
of Defendant’s paints or in the types of Defendant’s paints to which Hiland was
exposed, the motion for summary judgment is GRANTED. Defendant is to file a proposed judgment
within five days.
The moving party is to
give notice.