Judge Mark A. Young, Case SS027334 2022-09-07 Tentative Ruling

Judge: Mark A. Young, Case: SS027334, Date: 2022-09-07 Tentative Ruling

Case Number: SS027334 Hearing Date: September 7, 2022 Dept: M

CASE NAME: Mireles, et al., v. Axiall Corp., et al.

CASE NO.: SS027334

MOTION: Motion for Summary Judgment/Adjudication by Defendant Univar

HEARING DATE: 9/7/2022

Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., § 437c(a).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c(f)(1).) If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (Code Civ. Proc., § 437c(t).)

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (Code Civ. Proc., § 437c(e).)

Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.)

Analysis

Univar moves for summary judgment on the grounds that Plaintiffs do not have, and cannot reasonably obtain, any evidence that Mr. Mireles was ever exposed to perchloroethylene or Streets Picrin manufactured or supplied by Univar. (See MSJ grounds 1-5.)

A toxic-tort plaintiff must demonstrate that exposure to the defendant’s products was, in “reasonable medical probability, a substantial factor in causing or contributing to his risk of developing cancer.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4^th 953, 957-958; (Paulus v. Crane Co. (2014) 224 Cal.App.4th 1357, 1363 n.7 [in asbestos-mesothelioma case, a “plaintiff must prove that the defendant’s asbestos products were a substantial factor in contributing to the risk of developing mesothelioma, not the mesothelioma itself.”].) “The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” (Rutherford, supra, 16 Cal.4th at 978.) “Many factors are relevant in assessing the medical probability that an exposure contributed to plaintiff’s [disease]. Frequency of exposure, regularity of exposure, and proximity of the [] product to plaintiff are certainly relevant, although these considerations should not be determinative in every case . . .. Additional factors may also be significant in individual cases, such as the type of [] product to which plaintiff was exposed, the type of injury suffered by plaintiff, and other possible sources of plaintiff’s injury.” (Paulus, supra, 224 Cal.App.4th at 1363-1364.) “Ultimately, the sufficiency of the evidence of causation will depend on the unique circumstances of each case.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416-1417.)

In their motion, Univar argues Plaintiffs lack evidence to support their claim of exposure. (See Collin v. CalPortland (2014) 228 Cal.App.4th 582 [burden shifted when user never saw defendant’s product (gun plastic cement), user could not say whether he was ever at a jobsite where somebody used defendant's, and user had never heard of defendant's gun plastic cement prior to his deposition in the lawsuit]; see Ganoe, supra, 227 Cal.App.4th 1577 [inability to recall events from 40 years ago was insufficient to shift the initial burden and establish that decedent’s heirs could not prove exposure by other means]; Weber v. John Crane (2006) 143 Cal.App.4th 1433 [decedent’s “I don’t recall” testimony failed to shift the initial burden]; McGonnell v. Kaiser Gypsum (2002) 98 Cal.App.4th 1098 [burden shifted where decedent conceded that he had no knowledge of exposure to any made by particular manufacturers]; Scheiding, supra, 69 Cal.App.4th 64 [plaintiff’s failure to identify specific jobsites was inadequate to shift the initial burden; defendant conducted no discovery of its own, and worker was not asked a single question concerning defendant in his deposition]; Paulus, supra, 224 Cal.App.4th at 1363-64 [a co-worker and the decedent’s son both testified that decedent suffered frequent and numerous exposures to product].)

The complaint alleges that Mr. Mireles was exposed to the following products that Univar supplied and/or manufactured: (1) Streets Picrin; (2) Street Pyratex; and (3) Streets Mulsolite. (SUMF No. 4.) Univar supplied the following: (1) Mulsolite; (2) Perchloroethylene; (3) Per208; (4) Picrin; (5) P.O.G Paint, Oil & Grease Remover; (6) Pull Out Premium; (7) Pyratex; (8) Pyratex LV; (9) Silk Sheen; (10) Swan-Cote; (11) TarGo EF; (12) TarGo Dry; and (13) Trichloroethylene. (SUMF No. 5.) Furthermore, in the course of Mr. Mireles’ employment, Mr. Mireles alleges that he was exposed to solvents used in dry-cleaning, including “spotting chemicals” and perchloroethylene, and other chemical products, and such chemical products exposed Mr. Mireles to significant concentrations of organic solvents and other toxic chemicals, including glycol ethers and aliphatic ketones. (SUMF No. 6.)

On October 31, 2019, Univar propounded discovery on Plaintiffs to ascertain all facts, witnesses and documents in support of each of Plaintiffs’ causes of action and request for damages. The discovery served included Special Interrogatories, Requests for Production, Requests for Admission and Form Interrogatories. (SUMF No. 7.) In response to Form Interrogatories, Mr. Mireles identified the various dry-cleaning facilities that he previously worked at as: (1) Overland Cleaners: 1991-1994; (2) Carriage Regal Cleaners: 1996 - 2000 and 2007 - August 2015; (3) Pico Cleaners: 1999-2000; (4) Robertson Cleaners: 1999-2000; (5) Vamco Cleaners: 2002-2003; (6) Paradise Cleaners: 2004; and (7) Fazio Cleaners: 2004-2008. (SUMF No. 8.) According to Plaintiffs’ responses, the nature of Mr. Mireles’ work at each dry-cleaning facility was as follows: (1) Overland Cleaners: Front Counter-counter service; (2) Carriage Regal Cleaners: Cleaner and Driver-counter service, spotting clothes, loading clothes to dry-cleaning machine and delivery; (3) Pico Cleaners: Manager-counter service; spotting clothes and pressing clothes; (4) Robertson Cleaners: Manager counter service; spotting clothes and pressing clothes; (5) Vamco Cleaners: Assistant Manager counter service and spotting clothes; (6) Paradise Cleaners: Manager-counter service; spotting clothes and pressing clothes; and (7) Fazio Cleaners: Driver-driving (delivery and pickup). (SUMF No. 9.)

Univar requested that Plaintiffs state all facts that Mr. Mireles was exposed to perchloroethylene manufactured or supplied by Univar. (SUMF No. 10.) In response to Univar’s request, Plaintiffs repeated their allegations that Mr. Mireles was exposed to Perchloroethylene, PER230, PER208, and Streets Picrin, all distributed by Univar at the various drycleaning facilities, which were previously identified, from approximately 1991 through August 2015. Mr. Mireles’ alleged exposure occurred while he worked as a Dry Cleaner Spotter and as a driver delivering and picking up dry cleaning. (SUMF No. 11.)

Univar requested that Plaintiffs identify each witness in support of their contention that Mr. Mireles was exposed to perchloroethylene manufactured or supplied by Univar. (SUMF No. 12.) In response, Plaintiffs identified Mr. Mireles, Univar’s employees, Mr. Mireles’ healthcare providers, and his former co-workers from the various dry-cleaning facilities where he worked. The responses only provided the full name, with no contact information, of four former co-worker witnesses: Bill Abott, Steve Green, Miguel Soto, and Catarino Aguilar. The remainder of the witnesses disclosed by Plaintiff contained no last name and no address. Plaintiffs simply name “Armando”, “David”, “Erik, “Erika”, “Sherman”, “Jacob”, “Oscar”, “Richard”, “Camrino”, “Omar”, “Maria”, “Yolanda”, “Tatek”, “Bonfilio”, “Greg”, “Esther”, “Francisco”, “Rosa”, “Ramiro” and “Jimenez” “last name unknown.” (SUMF No. 13.)

Univar’s Special Interrogatory No. 3 requested that Plaintiffs identify each document in support of their contention that Mr. Mireles was exposed to perchloroethylene manufactured or supplied by Univar. (SUMF No. 14.) In response, Plaintiffs identified “material safety data sheets and invoices for propounding party’s Perchloroethylene;” PER230 and PER208 produced by United Fabricare Supply Inc; safety datasheets and product information of products produced by Axiall Corporation; and Mr. Mireles’ medical records and reports from his healthcare providers. (SUMF No. 15.) These documents, however, are unresponsive to the information sought by the Interrogatory, namely, documents that support Plaintiffs contention that Mr. Mireles was exposed to perchloroethylene manufactured or supplied by Univar. (SUMF No. 16.)

Mr. Mireles testified that Stephen Green hired him to work at Carriage Regal in 1991. (SUMF No. 20.) He recalls only that United Fabricare supplied chemical products to Overland and for all his employers -- Carriage Cleaners, Regal Pacific Palisades, Robertson Cleaners, Pico Cleaners and Vamco. (SUMF No. 22.) Mr. Mireles testified that while working at Overland Cleaners, he recalls working with a products called “Collar and Cuffs,” “Scram Blood,” and ammonia, which were used to scrub collars and cuffs. (SUMF No. 29.) Mr. Mireles did not recall other brand names or manufacturers. He testified that he only recalled the manufacturer for the Collar and Cuffs solution being “Laidlaw.” (SUMF No. 30.) Otherwise, Mr. Mireles testified that he does not recall ever hearing of a company called Univar or Van Waters & Rogers. (SUMF No. 31-35.) The same is true for Mrs. Mireles. (SUMF No. 36-40.) Furthermore, Univar has not been involved with the distribution of dry-cleaning chemicals since 1993 when that business was sold to United Fabricare. (SUMF No. 41-42.) At best, Plaintiff testified as to two products, Collars and Cuffs solution, and Scram Blood. Neither are alleged to be Univar’s products. Thus, Univar meets its initial burden to show that Plaintiffs lack evidence of exposure to Univar’s products.

Plaintiffs do not meet their burden in opposition to this motion for summary judgment. Notably absent from Plaintiffs’ facts is the mention of any of Univar’s products (i.e., those alleged in the complaint), or evidence that Plaintiffs were exposed to such products. (See Opp. p. 4-7.) Plaintiffs purport to dispute SS nos. 16-17, 33, 35 38, 31-43 which pertain to evidence of exposure to Univar’s products. Plaintiff offers no meaningful dispute of fact in the separate statement with the requisite citations to evidence. For instance, as to no. 17, Plaintiff simply contends that he “knows he was exposed to these products but did not necessarily recall any brands/corporate entities.” Again, without a citation to the record, the Court cannot guess at which evidence is supposed to support this conclusion. Only Plaintiff’s response to no. 43 attempts to address exposure, which generically states that Mr. Mireles’ exposure to dry cleaning chemicals began when he began working at dry cleaners in 1991. Of course, this does not address Univar’s products.

Plaintiffs reason that Mr. Mireles was exposed to Univar’s products because he began working at dry cleaning facilities in 1991, and thus exposed to Univar’s chemicals prior to their purchase by United Fabricare. Of course, this cites no affirmative evidence that Plaintiff was exposed to any of Univar’s products or chemicals. The Court would agree that Plaintiff could have still been exposed to chemicals when working in the Front Counter/Counter Service. However, Plaintiffs still need to present evidence that Univar’s chemicals or products were at least present at the facility. Plaintiffs have not put forth any such evidence. The record only demonstrates non-Univar products being present.

Simply put, Plaintiffs do not point to any part of the record that evidence exposure to Univar’s products. Plaintiffs only offer the repeated, generic conclusion that Mr. Mireles was exposed to Univar’s products, or Perchloroethylene, PER230, PER208, and Picrin made by Univar.

As there is no dispute of fact as to Mr. Mireles’s lack of exposure to Univar’s products, there can be no causation as to any of the pled causes of action. Each cause of action must therefore fail. Accordingly, Univar’s motion for summary judgment is GRANTED.