Judge: Theresa M. Traber, Case: 19STCV06421, Date: 2023-02-09 Tentative Ruling

Case Number: 19STCV06421    Hearing Date: February 9, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 9, 2023                               TRIAL DATE:  April 18, 2023

CASE:                         James Lewallen, et al. v. Does 1 through 100

CASE NO.:                 19STCV06421

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:               Defendant Illinois Tool Works Inc., sued as ITW Polymers Sealants North America, Inc. (Doe 27)

RESPONDING PARTY(S): Plaintiffs James Lewallen and Carole Lewallen

CASE HISTORY:

• 02/25/19:         Complaint filed.
• 04/16/19:         Crossfield Products Corp. substituted in as Doe 1.

Henry Company LLC substituted in as Doe 2.

ITW Polymers Sealants North America Inc. substituted in as Doe 3.

MBTechnology substituted in as Doe 4.

Smalley & Company substituted in as Doe 5.

Sunshine Supply Co., Inc. substituted in as Doe 6.

Top Industrial, Inc. substituted in as Doe 7.

Tropical Roofing Products of California, LLC substituted in as Doe 8.

• 05/09/19:         Gardner-Gibson Manufacturing, Inc. substituted in as Doe 9.

Bostik, Inc. substituted in as Doe 10.

Carlisle Coatings and Waterproofing Inc. substituted in as Doe 11.

Certainteed Corporation substituted in as Doe 12.

Brenntag Canada Inc. substituted in as Doe 13.

Minerals Technologies Inc. substituted in as Doe 14.

Concrete Sealants, Inc. substituted in as Doe 15.

GAF Materials LLC substituted in as Doe 16.

GP Gypsum LLC substituted in as Doe 17.

W.R. Grace & Co.-Conn. substituted in as Doe 18.

W.M. Barr & Company, Inc. substituted in as Doe 19.

Citgo Petroleum Corporation substituted in as Doe 20.

Mule-Hide Products Co., Inc. substituted in as Doe 21.

Nemeon, Inc. substituted in as Doe 22.

Sika Corporation substituted in as Doe 23.

TAMKO Building Products, Inc. substituted in as Doe 24.

Tremco Incorporated substituted in as Doe 25.

• 09/18/19:         Case deemed non-complex.
• 10/15/19:         Colloid Environmental Technologies Company, LLC substituted in as

Doe 26.

• 11/01/19:         Malarkey Roofing Products substituted in as Doe 27.

Vance Brothers, Inc. substituted in as Doe 28.

Soprema U.S.A., Inc. substituted in as Doe 29.

Xypex Chemical Corporation substituted in as Doe 30.

Owens Corning substituted in as Doe 31.

Durapax LLC substituted in as Doe 32.

• 11/06/19:         Brenntag North America, Inc. substituted in as Doe 33.
• 12/04/19:         MFM Building Products Corporation substituted in as Doe 34.
• 09/09/20:         Dismissal entered as to Defendant GP Gypsum LLC.
• 01/08/21:         Dismissal entered as to Defendant MFM Building Products Corporation.
• 02/01/21:         Dismissal entered as to Defendant GAF Materials, LLC.
• 12/22/21:         Dismissal entered as to Defendants Top Industrial, Inc. and Sunshine Supply Co.
• 05/11/22:         Dismissal entered as to Defendant Citgo Petroleum corp.
• 06/21/22:         Dismissal entered as to Defendant Crossfield Products Crop.
• 11/08/22:         Dismissal entered as to Defendant Vance Brothers, Inc.
• 11/22/22:         Dismissal entered as to Defendant MBTechnology
• 12/21/22:         Dismissal entered as to Defendant Owens Corning
• 01/11/23:         Dismissal entered as to Defendant W.R. Grace & Co.
• 01/26/23:         Dismissal entered as to Defendant Soprema USA, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a toxic tort case. Plaintiffs allege that Plaintiffs James Lewallen, who worked in the construction industry in various capacities, was exposed to toxic chemical products manufactured, distributed, or supplied by the Defendants and sustained injuries as a result, including lung cancer.

            Defendant Illinois Tool Works Inc., sued as ITW Polymers Sealants North America, Inc., moves for summary judgment, or, alternatively, summary adjudication as to Plaintiff’s prayer for punitive damages.

TENTATIVE RULING:

Defendant Illinois Tool Works Inc.’s motion for summary judgment is DENIED.

Defendant’s alternative motion for summary adjudication is DENIED.

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DISCUSSION:

Motion for Summary Judgment

            Defendant moves for summary judgment on the basis that Plaintiff cannot establish causation on the part of the moving Defendant.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

            Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant’s Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon objections asserted against evidence which the Court deems to be material to the disposition of this motion. As the Court does not rely on any evidence from the Declaration of Raphael Metzger in making its determination, the Court does not rule on Defendant’s’ evidentiary objections.

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Analysis

            Defendant moves for summary judgment on the basis that Plaintiffs cannot establish causation on the part of the moving Defendant.

In a toxic tort case based on occupational exposure involving multiple defendants and multiple products, to show causation, Plaintiffs must show that the “exposure to a particular defendant’s product was a substantial factor contributing to Plaintiffs’ . . . risk of developing” lung disease. (Cf. Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 977 [announcing this standard in a case involving cancer caused by asbestos exposure].) The “substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” (Id. at 978.) Thus, “each of several actors or forces acting concurrently to cause an injury is the legal cause of the injury ‘regardless of the extent to which each contributes to the injury.’” (Ibid. [quoting BAJI No. 3.77].)

Defendant argues that Plaintiffs cannot establish exposure to any of Defendant’s products at issue. In the Amendment to the Complaint which substituted this Defendant for Doe 3, Plaintiff alleged injuries arising from Defendant’s Elasto-Deck BT Type I and Permathane SM7108 products. (April 16 2019 Amendment to Complaint as to Doe 3.) In addition, the parties agree that Defendant’s Elasto-Deck BT Type II product is also at issue in this case. Neither Defendant’s moving papers nor the Separate Statement address the allegations relating to any exposure by Plaintiff to Defendant’s Elasto-Deck BT Type I product, only the Type II and Permathane SM7108 products. “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.) The only evidence offered by Defendant which can be construed to address all the allegations in the Complaint is the deposition testimony of Plaintiff’s employer, Neil Van Dijk.  In that testimony, Mr. Van Dijk stated that Plaintiff’s job was “to observe, not install,” and that he would never be instructed to touch or install any product. (Separate Statement of Undisputed Material Fact Nos. 20-22.) However, the mere fact that Mr. Lewallen was not instructed to touch or install any product, but merely to observe, is not sufficient to demonstrate that he was not exposed to Defendant’s products. Defendant has therefore failed to carry its burden to establish that Plaintiffs cannot prove causation on this basis. The burden therefore does not shift to Plaintiffs to establish a triable issue of fact in this respect.

Defendant also argues that Plaintiffs cannot establish causation because Plaintiffs cannot prove the toxicity of any of Defendant’s products at issue. Defendant relies on excerpts from Plaintiffs’ responses to interrogatories and requests for production, which do not identify any toxins to which Mr. Lewallen could have been exposed. (Separate Statement Nos. 13-16.) Defendant contends that Plaintiffs’ responses are factually devoid responses sufficient to demonstrate that Plaintiffs cannot establish causation on this basis. Factually devoid discovery responses can be an evidentiary basis in support of a motion for summary judgment or adjudication, (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590; see also Andrews v. Foster Wheeler LLC, (2006) 138 Cal.App.4th 96, 101.) However, both Union Bank and Andrews, on which Defendant relies, are factually distinguishable from this case. In Union Bank, the plaintiffs provided a short conclusory assertion in response to Form Interrogatory No. 17.1 as it related to a denial of a request for admission. (Union Bank, supra, at 578.) Similarly, in Andrews, the plaintiff’s responses to special interrogatories concerning his alleged asbestos controller consisted principally of a reference to his response to the second interrogatory, which was a short conclusory assertion of the presence of asbestos. (Andrews, supra at 104-105.) Neither case offers any indication that objections were asserted by the respondents. Objections to discovery, by themselves, cannot be construed as factually devoid responses. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 892-93 [objection to deposition question not a factually devoid response].)

Here, a review of the responses to these discovery requests reveals that these responses were provided subject to numerous specific objections as to each request identified. (See generally Defendant’s Exhs. B and D.) The merits of these objections have not been litigated. The Court cannot conclude, where Plaintiffs’ responses are subject to unchallenged objections, that Plaintiffs’ responses are sufficient to establish that Plaintiffs have no evidence and cannot produce any evidence establishing the toxicity of Defendant’s products. The Court therefore finds that Defendant has not carried its burden to establish that Plaintiffs cannot demonstrate causation on this basis. The burden of proof therefore does not shift to Plaintiffs to demonstrate a triable issue of fact in this respect.

Defendant has failed to carry its burden to demonstrate that Plaintiffs cannot establish causation. Defendant is therefore not entitled to summary judgment.

Conclusion

Accordingly, Defendant’s Motion for Summary Judgment is DENIED.

Motion for Summary Adjudication

            Defendant moves for summary adjudication on Plaintiff’s prayer for punitive damages.

            To maintain a claim for punitive damages, a plaintiff must establish by clear and convincing evidence that a defendant acted with fraud, malice, or oppression. (Code Civ. Proc. § 3294.) Punitive damages may arise against an employer for the conduct of an employee when it is established that an officer, director, or managing agent either commit the act themselves, or ratify the act. (White v. Ultramar, Inc. (199) 21 Cal.4th 563, 572; College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 726.)

            Defendant contends that Plaintiffs cannot prevail on their request for punitive damages because Plaintiffs cannot establish malice, oppression, or fraud. Defendant again relies on discovery responses which it contends are factually devoid. (SSUMF Nos. 24-26.) However, for the reasons stated above, the Court cannot construe these responses as factually devoid where they are likewise subject to unchallenged objections by Plaintiffs. The only other evidence offered by Defendant is Mr. Lewallen’s deposition testimony, in which, according to Defendant, Mr. Lewallen admitted that he never spoke with an Elasto-Deck or Permathane representative. (SSUMF No. 27.) Defendant contends that, since Plaintiffs never spoke with any representatives, there could be no misrepresentation by Defendant nor ratification by its officers, directors, or managing agents. This contention is irrelevant where, as here, Plaintiffs allege fraudulent concealment as the basis for punitive damages. (See Complaint ¶ 62-85.) Fraudulent conceal-ment does not require any representation by a defendant to establish liability; a failure to disclose facts known or accessible only to the defendant, or active concealment of those facts, is also sufficient, even in the absence of a fiduciary duty. (See Warner Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294.) Defendant has therefore failed to demonstrate that Plaintiffs are not entitled to punitive damages as a matter of law. Accordingly, the burden of proof does not shift to Plaintiffs to establish a triable issue of fact in this respect.

            Accordingly, Defendant’s alternative motion for summary adjudication is DENIED.

CONCLUSION:

Accordingly, Defendant Illinois Tool Works Inc.’s motion for summary judgment is DENIED.

Defendant’s alternative motion for summary adjudication is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  February 9, 2023                                ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at  Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.