Judge Laura A. Seigle, Case Number: 23STCV23555, Date: 2023-09-08 Tentative Ruling

Judge: Laura A. Seigle, Case: 23STCV23555, Date: 2023-09-08 Tentative Ruling

Case Number: 23STCV23555 Hearing Date: September 8, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION (J&J)

Defendant Johnson & Johnson filed a motion for summary adjudication of Plaintiffs Diane Fowler and Clinton Fowler’s third and fourth causes of action.

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.)

A. Third Cause of Action

Defendant moves for summary adjudication of the third cause of action for false representation under Restatement of Torts Section 402-B. 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.)

Defendant argues that there is no evidence Defendant made any misrepresentation to Plaintiffs or that Diane Fowler relied on any misrepresentations. (Motion at pp. 3, 5.) That is not the test. 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.) For example, Fowler testified her mother used the product on her when she was a child. (Ex. B at pp. 22, 25.) That means Fowler was not necessarily the ultimate purchaser of the product.

The motion for summary adjudication is denied.

B. Fourth Cause of Action

Defendant moves for summary adjudication of the fourth cause of action for concealment. This cause of action alleges in very vague terms that Defendant violated sections 1708 through 1710 of the Civil Code by not including warning labels, suppressing the contents of the Lanza Report, suppressing information from the Asbestos Textile Institute Industrial Hygiene Foundation and other industry organizations, not giving adequate information to Diane Fowler’s doctors, and failing to file a First Report of Occupational Injury or Illness. (Complaint, ¶¶ 41, 42.) (Sections 1708.5 through 1708.9 are obviously not applicable – they concern sexual battery, stalking, domestic violence, invasion of privacy, sexting, and entering schools.)

“ ‘[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.) Evidence that the defendant was involved in retail sales of the disputed product to consumers and profited from them can satisfy the Bigler requirement. (Bader v. Johnson & Johnson (2022) 86 Cal.App.5th 1094, 1132.)

Defendant argues it had no duty to disclose to Plaintiffs because it had no contact with Plaintiffs. (Motion at p. 8.) Defendant should know that contact with a plaintiff is not necessary for certain concealment claims. In Bader, Defendant argued that the jury should have been instructed under Bigler-Engler that it had to find a transaction arising from direct dealings between the plaintiff in that case and Defendant. (Bader, supra, 86 Cal.App.5th at p. 1132.) The court held, “A proper instruction under Bigler-Engler thus would have instructed the jury here to consider whether similar evidence of transactions, advertising, or [Defendant’s] direct monetary benefit supported the transactional requirement.” (Ibid.) The court explained that because there was “evidence showing that J&J was involved in retails sales of JBP to consumers and profited therefore,” Defendant could not show it was reasonably probable the jury would have found for Defendant had it been instructed under Bigler-Engler that it had to find a transaction between Defendant and the plaintiff or her parents. (Ibid.) Thus, under Bader, evidence a defendant was involved in retail sales of the disputed product to consumers and profited from those sales may give rise to a duty to disclose.

Here, Defendant has only shown that Diane Fowler had no direct contact with Defendant. Defendant did not show that it was not involved in retail sales of the product and did not profit from those retail sales. Nor did Defendant show that Plaintiffs cannot reasonably obtain evidence of Defendant’s involvement in retail sales of the disputed product and profit from those sales. Because Defendant did not shift the burden, the motion is denied.

The motion for summary adjudication is DENIED.

The moving party is to give notice.

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION (CHARLES B. CHRYSTAL)

Defendant Charles B. Chrystal Company filed a motion for summary judgment, and in the alternative for adjudication of Plaintiffs Diane Fowler and Clinton Fowler’s third and fourth causes of action and request for punitive damages.

A. Motion for Summary Judgment

Defendant argues Plaintiffs have no evidence that Defendant supplied talc for any products Diane Fowler used. Defendant served an interrogatory asking for all facts supporting the contention that Diane Fowler was exposed to asbestos from Defendant. (Ex. 5 at p. 2.) Plaintiffs responded, “Plaintiff alleges that CBC supplied asbestos-contaminated talc to the manufacturers of the above talc products.” (Ex. 5 at p. 3; Ex. 6 at p. 3.) Plaintiff did not identify specific evidence supporting this allegation and instead merely referred to general categories of unspecified documents. (Ex. 5 at pp. 6-7; Ex. 6 at pp. 6-7.) This response is factually devoid, shifting the burden.

Plaintiffs state Diane Fowler used Avon’s Imari talc from the 1980s until 2000, and Defendant supplied Osmanthus talc to Avon from 1993 through 1997. (Opposition at p. 3; Motion at p. 7.) Plaintiffs provided evidence that Imari contained Osmanthus talc during those years, and the talc contained asbestos. (Opposition at pp. 3-4 and evidence cited therein.) Therefore, Plaintiffs have shown disputed issues concerning whether Defendant provided the Osmanthus talc for the Avon product used by Diane Fowler. The motion for summary judgment is denied.

B. Summary Adjudication of Third Cause of Action

Defendant argues that there is no evidence Defendant made any misrepresentation to Plaintiffs or that Diane Fowler relied on any misrepresentation. (Motion at p. 10.) That is not the test. 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.) The motion for summary adjudication is denied.

C. Summary Adjudication of Fourth 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.) Evidence that the defendant was involved in retail sales of the disputed product to consumers and profited from them can satisfy the Bigler-Engler requirement. (Bader v. Johnson & Johnson (2022) 86 Cal.App.5th 1094, 1132.)

Defendant argues there is no evidence Plaintiffs relied on a specific misrepresentation of Defendant. (Motion at p. 11.) Defendant cites Plaintiffs’ responses to interrogatories asking for all facts in support of this cause of action. (Motion at p. 11; Ex. 6 at p. 8.) The responses do not identify any misrepresentation from Defendant. They merely allege in vague terms that Defendant did not provide a warning. (Ex. 6 at pp. 4, 6, 8.) This is factually devoid, shifting the burden.

In opposition, Plaintiffs argue, without citing any evidence, that Defendant knew about the hazards of asbestos but continued to sell products without a warning. (Opposition at p. 9.) However, Plaintiffs fail to address Bigler-Engler and fail to show the existence of a transaction between Plaintiffs and Defendant giving rise to a duty to warn. Therefore, the motion is granted as to the fourth cause of action.

D. Punitive Damages

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 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 Plaintiffs’ responses to interrogatories asking for all facts and writing supporting the request for punitive damages. (Motion at pp. 12-13; Ex. 6 at p. 8.) Plaintiffs responded with generic allegations that Defendant knew about the dangers of asbestos and failed to warn; Plaintiffs did not identify any specific documents. (Ex. 6 at pp. 6, 7, 8-9.) This response is factually devoid.

In opposition, Plaintiffs argue Defendant knew that its talc products could contain asbestos as early as the 1970s. (Opposition at p. 4; Ex. 4 at p. 153.) That is not evidence that Defendant knew the talc it was selling during the relevant time period contained asbestos that, when incorporated into the products at issue, would cause a high probability of injury to consumers, and that Defendant made a corporate decision not to warn customers. Plaintiffs did not show disputed issues of fact concerning its request for punitive damages. Therefore, the motion is granted.

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

The moving party is to give notice.