Judge: Laura A. Seigle, Case: 23STCV23884, Date: 2023-11-17 Tentative Ruling
Case Number: 23STCV23884 Hearing Date: March 7, 2024 Dept: 15
[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT (Calaveras)
Defendant Calaveras Asbestos Ltd. Moves for summary judgment of Plaintiffs Remo Guidi and Joann Guidi’s claims that Remo Guidi was exposed to Defendant’ asbestos.
Defendant’s Objection Nos. 1, 2, 5, 7, 8, 9, 10: The court did not rely on this material.
Defendant’s Objection Nos. 3, 4, 6: 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 cites Plaintiffs’ response to an interrogatory asking for all facts supporting their claims against Defendant, where Plaintiffs stated Guidi “was exposed to various asbestos-containing products that contained asbestos fibers supplied by defendant Calaveras.” (Defendant’s Ex. C. at p. 2; Ex. D at p. 5.) The response did not identify the products. The response contained a long list of documents and unnamed people with knowledge. (Defendant’s Ex. D. at pp. 6-13.) The response does not specify evidence showing Guidi was exposed to asbestos from Defendant. Defendant also cites Guidi’s deposition testimony that he does not know if he was exposed to asbestos from any product from Familian and never heard of Defendant. (Defendant’s Ex. E at pp. 332, 378-379.) These discovery responses are factually-devoid and do not even identify the products that Plaintiffs allege exposed Guidi to asbestos or evidence of such exposure. Thus, Defendant shifted the burden.
In their opposition, Plaintiffs state Guidi was exposed to Defendant’s asbestos in Marley Cooling Towers and in Johns-Mansville pipes. (Opposition at p. 3.) Plaintiffs cited a declaration of Kathy De Loache who was the representative of Marley Cooling Technologies. (Plaintiffs’ Ex. E at p. 38.) She testified that Johns-Manville, G.A.F., Atlas-Turner, Rubberoid, and International Building Products supplied A.C.B. (asbestos cement board) to Marley. (Id. at pp. 39-40.) Plaintiffs cite evidence that Defendant, Johns-Manville, Cassiar, Bell, Cape and possibly others supplied asbestos to J-M Manufacturing Company, Inc. for use in asbestos cement pipes. (Id., Ex. F at pp. 7-8.) Plaintiffs contend that 11.9% of the asbestos used at J-M Manufacturing Company’s plant came from Defendant. (Plaintiffs’ Disputed Fact 20.)
There are several gaps in this evidence. First, regarding Marley Cooling Towers, Plaintiffs’ evidence establishes that as many as five manufacturers supplied asbestos cement board to Marley. (Plaintiffs’ Ex. E at pp. 39-40.) One of those manufacturers was Johns-Manville, but Plaintiff does not cite evidence that Defendant sold asbestos to Johns-Manville. Rather, the evidence is that Defendant sold asbestos to J-M Manufacturing Company, Inc. (Plaintiffs’ Ex. F at pp. 7-8.) Plaintiffs contend Johns-Manville and J-M Manufacturing Company, Inc. were the same company, but Plaintiffs supply no evidence of that. And, even if Defendant supplied asbestos to Johns-Manville, Plaintiffs did not present evidence that Johns-Manville used Defendant’s asbestos to make asbestos cement board that is sold to Marley.
Further, even if Johns-Manville did use Defendant’s asbestos to make asbestos cement boards, Plaintiffs did not present evidence that the asbestos cement boards Guidi encountered in Marley cooling towers was from Johns-Manville. Because as many as five manufacturers supplied asbestos cement boards to Marley, Guidi could have been exposed to asbestos cement boards from a different manufacture. In other words, it is entirely speculative that Guidi was exposed to Defendant’s asbestos in a Marely cooling tower.
Second, regarding asbestos cement pipes, Plaintiffs’ evidence shows that J-M Manufacturing Company obtained 11.9% of its asbestos from Defendant, and that at least four other companies (Johns-Manville, Cassiar, Bell, and Cape) also supplied asbestos to J-M Manufacturing Company. (Plaintiffs’ Ex. F at pp. 7-8.) Thus even if Guidi was exposed to J-M Manufacturing’s asbestos cement pipes, it is speculative whether the asbestos in those pipes came from Calaveras or one of the other suppliers.
The facts here are similar to those in Izell v. Union Carbide Corporation (2014) 231 Cal.App.4th 962, where defendant Kelly-Moore had multiple suppliers of asbestos, of which Union Carbide’s asbestos made up about 8%. (Id. at p. 971.) There was no evidence what percentage of the asbestos supplied to the Kelly-Moore facility where the plaintiff worked came from Union Carbide. (Ibid.) Thus it was speculation to conclude the plaintiff was exposed to Union Carbide asbestos. (Ibid.) In sum, “ ‘[t]he mere “possibility” of exposure’ is insufficient to establish causation.” (Id. at p. 969.) Likewise, here it is mere speculation that Guidi was exposed to Defendant’s asbestos, rather than asbestos from the numerous other asbestos suppliers.
Because Plaintiffs have failed to show disputed issues of fact concerning Guidi’s exposure to asbestos from Defendant, the motion is GRANTED. Defendant is to file a proposed judgment within five days.
The moving party is to give notice.
[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT (Copeland)
Defendant
Copeland Company moves for summary judgment of Plaintiffs Remo Guidi and Joann
Guidi’s claims that Remo Guidi was exposed to asbestos in Defendant’s products.
A. Objections
Defendant’s
Objection Nos. 1, 2: The court did not
rely on this material.
Defendant’s
Objection No. 3: Overruled.
Defendant’s
Objection Nos. 4-8: Overruled. These are not proper evidentiary objections. The objections should be to the evidence, not
to the Separate Statement of Disputed Facts.
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
argues that even though Guidi worked on Copeland compressors, he does not know
their repair history or the source of any of the materials he used to repair
the compressors. (Motion at p. 7.) Therefore, he cannot prove he worked with any
products from Copeland. (Id. at
p. 8.
Assuming
Defendant shifted the burden, Plaintiffs submitted evidence that Guidi was able
to identify materials from Defendant.
Guidi testified that when he requested materials from the purchasing
office, he would receive Copeland compressor gasket or parts from Copeland,
according to the material inside the package.
(Plaintiffs’ Ex. 1 at pp. 463-464.)
That is sufficient to create a disputed issue about whether Guidi worked
with material from Defendant. That his
deposition testimony contradicts other parts of his deposition testimony,
according to Defendant, is something the jury can consider in judging his
credibility. The motion is denied.
C. Summary
Adjudication – Negligence, Strict Liability, Loss of Consortium
Defendant seeks summary adjudication of the
negligence, strict liability, and loss of consortium causes of action because
there is no evidence of exposure to Defendant’s products. This evidence fails for the reasons cited
above. The motion is denied.
D. Summary
Adjudication – False Representation under Section 402-B
The third cause of action
alleges a cause of action for “False Representation Under Restatement of Torts
Section 402-B.” (Complaint at p. 13.) 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 the 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.) Because
this cause of action does not require evidence Defendant made any
misrepresentation to Chaney, or that Decedent knew about or relied on any
representation by Defendant, this argument fails.
Defendant argues Plaintiffs did not identity any
misrepresentation. Defendant served an
interrogatory asking for all facts supporting the claim for false
representation. (Defendant’s Ex. E at p.
22.) The response stated very vaguely
that Defendant “represented to members of the general public, . . . including
plaintiff Remo Guidi, that is asbestos-containing products were of merchantable
quality, and safe for the use for which they were intended.” (Id. at p. 12.) This is a generic statement without any
specifics such as who said the statement and when it was made. It is no better than an allegation. This factually-devoid response shifted the
burden.
In their opposition, Plaintiffs do not describe
the false statement Defendant made to the public or to Guidi, when Defendant
made the statement, and what person made the statement. Plaintiffs failed to show a disputed issue on
this cause of action. The motion is
granted.
E. Summary
Adjudication – Intentional Tort
The fourth cause of action alleges “Intentional
Tort” under Civil Code sections 1708
through 1710. (Complaint, ¶ 39.) Sections 1708.5 and 1708.5.5 concern sexual
battery. There are no allegations of
sexual battery in this case. Section 1708.5.6
concerns misusing sperm, ova, or embryos.
There are no such allegations here.
Sections 1708.6, 1708.7, 1708.8, 1708.85, 1708.86, 1708,88, and 1708.9
concern domestic violence, stalking, invasion of privacy, and sexually explicit
materials, all inapplicable in this case.
Section 1708.9 addresses preventing a person from entering or exiting a
facility. None of these sections have
anything to do with an asbestos case.
Plaintiffs should not allege them in an asbestos case.
The
fourth cause of action is vague and fails to identify any specific act or
omission by Defendant. It contains pages
of boilerplate. The complaint alleges
that all of the defendants generally failed to include warning labels, suppressed the
contents of the Lanza Report, suppressed information from the Asbestos Textile
Institute Industrial Hygiene Foundation and other industry organizations, and
did not give adequate information to Cargill’s doctors or his employers. (Complaint at pp. 16-19.)
It is impossible to tell from reading
the complaint the specific intentional misrepresentation Defendant made to
Plaintiffs or the particular information Defendant concealed.
Because
the complaint fails to allege any specific misrepresentation by Defendant to
Plaintiffs, the court assumes Plaintiff intends to allege that Defendant
concealed something from Plaintiffs. “
‘[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.)
Defendant served an interrogatory asking for all
facts supporting the intentional tort cause of action. (Defendant’s Ex. E at p. 22.) The response stated that Defendant knew
asbestos was dangerous since 1947, it took no actions to determine whether its
products were dangerous, never put warnings on its products, did not train its
contractors to warn about asbestos, and did not stop selling the dangerous
products. (Id. at pp. 10-11.) This response does not establish that
Defendant and Plaintiffs had the transactional relationship or direct dealings
necessary for a concealment cause of action.
The factually-devoid response shifted the burden.
In opposition, Plaintiffs did not submit evidence
that Defendant and Plaintiffs had the necessary relationship. Therefore Plaintiffs did not show a disputed
issue of fact concerning this cause of action.
The motion is granted.
F. Summary
Adjudication – Punitive Damages
Defendant moves adjudication of the request for
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.)
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 decision making 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 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.)
Defendants propounded an interrogatory asking for all
facts supporting the request for punitive damages. (Defendant’s Ex. E at p. 23.) Plaintiffs responded that even after
Defendant’s supplier stopped selling asbestos gaskets, Defendant continued to
sell out its inventory of asbestos gaskets for cost-saving reasons but did not
warn users. (Id. at p. 10.) If this response shifted the burden,
Plaintiffs submitted other evidence that even after it had its own employees monitored
and required to wear respirators, it did not warn end users. (Plaintiffs’ Disputed Facts 17, 18.) This is sufficient to show a disputed issue
concerning punitive damages.
The motion for summary judgment is DENIED. The motion for summary adjudication is
GRANTED as to the third and fourth causes of action and is otherwise DENIED.
The moving party is to give notice.