Judge: Laura A. Seigle, Case: BC648737, Date: 2023-04-07 Tentative Ruling

Case Number: BC648737    Hearing Date: April 7, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Defendant Frontier California, Inc. filed a motion for summary judgment arguing Plaintiffs Claudia Vivar, Tania Vivar, Juan Vivar, and Jose Vivar have no evidence that Jose Vivar was exposed to asbestos by Frontier.

            Defendant’s Objection No. 1:  Sustained,

            Defendant’s Objection Nos. 2-3:  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’ responses to interrogatories asking for facts and witnesses supporting the claim that Jose Vivar was exposed to asbestos by Defendant.  Plaintiffs responded in conclusory fashion that Jose Vivar was exposed when he spent time working at Defendant’s buildings, but the responses did not identify any witnesses.  (Uchida Decl., Ex. I at pp. 4, 5.)  These responses are factually devoid.  Defendant shifted the burden.

In opposition, Plaintiffs argue Jose Vivar worked at the Verizon Azusa Central Office and drilled through asbestos-containing floor tiles.  (Opposition at p. 2.)  Plaintiffs cite to the unsigned declaration of Noel Valdez who stated he worked with Jose Vivar in the 1990s into the 2000s, and they worked together at the Verizon Azusa Central office for 1-2 weeks where they drilled into the floor tile.  (Eyerly Decl., Ex. 2 at pp. 1-2.)  Plaintiffs also cite to the deposition of James McElman who testified that there was a 1989 asbestos survey done of the Verizon Azusa Central office, which said there was asbestos-containing floor tiles that were “ubiquitous” in the office.  (Eyerly Decl., Ex. 1 at pp. 48, 52.) 

The Noel Declaration is not admissible because it is not signed.  Even if it were admissible, it does not say where at the facility they drilled into the floor tile, and it does not establish that the floor tiles they drilled contained asbestos.  The McElman testimony does not identify where the asbestos-containing floor tiles were in the office.  He states a survey concluded the floor tiles were ubiquitous, but that is vague as to the location of the asbestos-containing floor tiles.  Thus, it is speculation that Jose Vivar drilled into tiles that contained asbestos at Defendant’s office.

The motion for summary judgment is GRANTED.  Defendant is to file a proposed judgment within five days.

The moving party is to give notice.