Judge: Laura A. Seigle, Case: BC675206, Date: 2022-10-21 Tentative Ruling

Case Number: BC675206    Hearing Date: October 21, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

            Bobby Williams filed a personal injury case based on exposure to asbestos.  After his death, Plaintiffs Carolyn Williams and Dennis Williams (“Plaintiffs”) filed a wrongful death case, which was consolidated with the first case.  Plaintiffs allege Bobby Williams was exposed to asbestos in products manufactured and sold by Defendant Rockwell Automation, Inc. (“Defendant”).  Defendant filed a motion for summary judgment and summary adjudication on the grounds that Plaintiffs have no evidence Bobby Williams was exposed to asbestos in a product from Defendant, the fraud cause of action fails because Bobby Williams was not aware of any statements from Defendant, and Plaintiffs have no evidence to support an award of punitive damages.

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.)

I.          Summary Judgment

            Defendant contends Plaintiffs’ discovery responses are factually devoid, pointing to Plaintiffs’ responses to special interrogatories and deposition.  (Motion at pp. 8-9.)  In particular, Defendants argue Plaintiffs cannot identify the specific products by part number and that all of Defendant’s parts were asbestos free by 1979.  (Motion at pp. 14-15.)

In response to special interrogatories, Plaintiffs stated Bobby Williams was exposed to Defendant’s parts while working on elevators.  (Golodnitska Decl., Ex. C at p. 3.)  Plaintiffs identified Rockwell as the source of documents and testimony.  (Id. at p. 5.)  In his deposition, Bobby Williams stated he used Defendant’s equipment, including relays, starting in the 1960s.  (Id., Ex. D at pp. 66, 76-77; Ex. E at pp. 877, 881.)  Defendant’s products were widely used.  (Id. at p. 881.)  He would see Defendant’s name on the relay, including in block letters stamped on the backplate of the relay.  (Id. at pp. 883, 885.)  The backplates stamped with Defendant’s name were made out of Bakelite, not metal.  (Id. at p. 885.) 

These responses are not factually devoid and do not show that Plaintiffs cannot obtain necessary evidence from, for example, Rockwell.  Rockwell states there is no evidence the equipment Bobby Williams worked with contained asbestos because he never tested it and it did not contain the word “asbestos” on it.  (Motion at p. 15.)  The fact that Williams did not first test a product for asbestos before he used it is not unusual.  It is hard to imagine how he was supposed to test a product when he was working on an elevator.  Defendant did not show that Plaintiffs cannot reasonably obtain evidence that Bakelite contained asbestos.

Defendant also states not all of its products contained asbestos, and because Williams cannot identify the specific products he worked on by parts numbers or serial numbers, he cannot prove any specific product contained asbestos.  (Ibid.)  However, Defendant cites no evidence for its assertion that during the period Williams was working with Defendant’s products, not all of the products contained asbestos.  More particularly, Defendant did not show that Bakelite backplates did not contain asbestos.  Similarly, Defendant contends that the backplates used on Defendant’s products were all made of metal, not Bakelite.  (Reply at p. 3.)  However, Williams testified he worked with Bakelite backplates stamped with Defendant’s name.  This is a disputed fact for the jury to decide.

Defendant argues Plaintiffs cannot prove Williams worked with products originally manufactured by Defendant.  (Motion at p. 19.)  That is not correct.  Williams testified he saw Defendant’s name stamped on the Bakelite backplates he was working with.  (See, e.g., Golodnitska Decl., Ex. E at p. 885.) 

In sum, Defendant did not show Plaintiffs do not possess and cannot reasonably obtain needed the evidence. 

II.        Summary Adjudication

            Defendant argues Plaintiffs cannot prove their false representation cause of action because they do not identify any representation Defendant made to Bobby Williams.  (Motion at p. 22.) 

            Plaintiffs allege a cause of action for “False Representation Under Restatement of Torts Section 402-B.”  (First Amended Complaint at p. 15.)  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 that Bobby Williams knew about or relied on any representation by Defendant, this argument fails. 

            Defendant argues that Plaintiffs cannot prove they are entitled to punitive damages because they have no evidence of malice, pointing to Plaintiffs’ discovery responses.  (Motion at p. 25.)  Defendant’s Special Interrogatory Nos. 6 and 7 ask for all facts and documents supporting the claim for punitive damages.  Plaintiffs responded by listing various discovery responses, deposition testimony, and articles, as well as documents in Defendant’s possession.  (Golodnitska Decl., Ex. C at pp. 10-11.)  Defendant argues that because Plaintiffs did not identify any particular officer, director or managing agent at Defendant with knowledge of Defendant’s conduct toward Plaintiffs, the punitive damages claim fails.  (Motion at p. 25.)

A plaintiff may show a basis for punitive damages if the defendant sold an asbestos-containing product knowing it could cause injury and failed to give warnings.  “ ‘[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.)

            Defendant does not address this basis for punitive damages or show that Plaintiffs will be unable to obtain evidence that Defendant knew of the dangers of asbestos and its asbestos-containing products to users, took actions to protect its own employees, and did not warn users of the danger.  For example, Plaintiffs may have been able to obtain such evidence through a PMK deposition of Defendant.  Therefore, Defendant did not shift the burden.

            The motion is DENIED.

            The moving party is to give notice.