Judge: Laura A. Seigle, Case: 23STCV17882, Date: 2023-10-11 Tentative Ruling

Case Number: 23STCV17882    Hearing Date: March 8, 2024    Dept: 15

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

On July 28, 2023, Plaintiff Phyllis Gafford filed this action alleging she developed mesothelioma from exposure Defendant Parex USA, Inc. fka LA Habra Products, Inc.’s asbestos-containing products.   

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 Plaintiff has no evidence that she was exposed to asbestos from Defendant’s products, citing Plaintiff’s standard interrogatory responses.  (Motion at p. 2.)  In response to Standard Interrogatory No. 18 asking for a description of each product (including trade name, product type, asbestos content, packaging, and manufacturer) that exposed Plaintiff to asbestos, Plaintiff responded that she was exposed to asbestos and asbestos-containing products due to her proximity to her husband’s home remodeling and construction work, automotive repair and maintenance, and clothing coated with asbestos-containing dust between the 1950s and the 1980s.  (Defendant’s Index, Ex. B at pp. 6-7.)  In an amended and supplemental response, Plaintiff identified and detailed her exposures to asbestos, but did not list Defendant as a source of exposure.  (Defendant’s Index, Ex. C at pp. 6-9, 9-10.)  

Plaintiff argues her discovery responses are not factually-devoid, and she cites her responses to special interrogatories.  (Opposition at p. 4.)  Defendant propounded a special interrogatory asking for all facts supporting the contention that Defendant exposed Plaintiff to asbestos-containing products.  (Eyerly Decl., Ex. I at p. 3.)  Plaintiff responded that she “may have been exposed to asbestos-containing products that were distributed, manufactured, and/or supplied by defendant Parex USA, Inc.”  (Id. at p. 4.)  Plaintiff did not identify the products.  Plaintiff referenced its responses to the standard interrogatories.  (Id. at p. 5.)  This special interrogatory response is as equally factually-devoid as Plaintiff’s standard interrogatory response.

In her standard interrogatory response and special interrogatory response, Plaintiff lists herself, her coworkers, and Defendant’s agents, employees, and custodians of records as persons with knowledge.  (Defendant’s Index, Ex. C at p. 6; Eyerly Decl., Ex. I at p. 6.)  Her standard interrogatory response generally identified Plaintiff’s and Defendant’s records, discovery responses, and deposition testimony.  (Defendant’s Index, Ex. C at pp. 6-7.)  Her special interrogatory response did not identify any documents.  (Eyerly Decl., Ex. I at pp. 8-9.) 

Plaintiff testified that she was not familiar with the names Parex or La Habra.  (Defendant’s Index, Ex. D at pp. 100-101.)  She had no information that she ever worked with or around products manufactured by Defendant.  (Id. at p. 101.)  She did not know of any witnesses or documents that could provide any information about her work with or around any of Defendant’s products.  (Id. at p. 102.)

The deposition testimony and discovery responses provide no evidence that Plaintiff used or was exposed to a specific product from Defendant that contained asbestos, and they show that Plaintiff cannot reasonably obtain such evidence.  They are factually-devoid on that point, and thus, Defendant shifted the burden.

In opposition, Plaintiff merely argues her discovery responses are not factually devoid.  (Opposition at p. 5.)  The opposition does not identify any product from Defendant that exposed Plaintiff to asbestos, let alone submit evidence of such exposure.  Because Plaintiff failed to show any disputed issue of material fact, the motion for summary judgment is GRANTED.  Defendant is to file a proposed judgment within five days.

The moving party is to give notice.