Judge: Theresa M. Traber, Case: 19STCV06421, Date: 2023-02-14 Tentative Ruling


Case Number: 19STCV06421    Hearing Date: February 14, 2023    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     February 14, 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 Concrete Sealants, Inc. (Doe 15)

 

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

 

CASE HISTORY:

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.

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.

Doe 26.

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.

 

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 Concrete Sealants Inc. moves for summary judgment, or, alternatively, summary adjudication as to Plaintiff’s prayer for punitive damages.

 

TENTATIVE RULING:

 

Defendant Concrete Sealants 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.)

 

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 offers two arguments as to why Plaintiffs’ claims are without merit. First, Defendant argues that Plaintiffs cannot establish exposure to Defendant’s CS-231 concrete sealant product. Second, Defendant argues that Plaintiffs cannot establish that Defendant’s product contained any toxic compounds which could have caused Mr. Lewallen’s cancer. The Court addresses each argument in turn.

 

1.      Exposure

 

Defendant argues that Plaintiffs cannot establish exposure to Defendant’s CS-231 concrete sealant product. Defendant principally bases this position on the depositions of Plaintiff James Lewallen, and his employer, Neil van Dijk. Defendant contends that Mr. Lewallen admitted that he never personally worked with CS-231. (Separate Statement of Undisputed Material Fact No. 4.) However, this is a serious mischaracterization of the deposition testimony, as Mr. Lewallen only stated that he did not directly apply or physically manipulate the product. (See Defendant’s Exh. F. pp. 841:25-842:3.) Defendant’s conclusion that Plaintiff did not “work with” the product is not supported by the evidence. Indeed, as Defendant concedes, Mr. Lewallen was an inspector, who, fitting his job description, inspected installation of the product and was present for its installation. (See SSUMF No. 5.)

 

Defendant next states that Mr. Lewallen testified that anyone installing CS-231 would have been 15 feet away, at minimum. (SSUMF No. 8.) This too mischaracterizing the testimony: Mr. Lewallen only testified that he would “try . . . to stay about 15 feet away.” (Defendant’s Exh. F. p. 842:8-9.) Defendant also contends that Plaintiffs cannot establish exposure to toxic compounds because Plaintiff’s employer’s inspection reports state that CS-231 was used only at one project. (SSUMF No. 9.) However, as Defendant expressly admits in the moving papers, Mr. Lewallen testified that CS-231 was used at “all the EPRO projects that we did on subgrade parking garages,” and that he had inspected “several” of these facilities. (Defendant’s Exh. F p. 834:8-9, 18-20.) Documentary evidence conflicting with Plaintiff’s testimony does not demonstrate an inability to prevail on this cause of action—to the contrary, it demonstrates the existence of a triable issue of fact in this respect. Defendant further argues that Mr. Lewallen testified that use of CS-231 did not create any dust, nor did it need sanding or further manipulation once nailed to the substrate. (SSUMF Nos. 10-11.) According to Defendant, this is sufficient to demonstrate that Mr. Lewallen could not have been exposed to any toxic compounds. But Defendant offers no basis for this conclusion. No testimony nor documentary evidence is offered stating that dust or direct manipulation would be required to induce the injuries alleged in the Complaint. Construing all inferences in favor of the non-moving party, as required on a motion for summary judgment, Defendant’s evidence only establishes that there was no dust from the use of the product, not that Mr. Lewallen was not exposed to toxic substances from inspecting the product. Defendant’s citation to the testimony of Mr. Van Dijk is equally insufficient. 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. (SSUMF Nos. 21-22.) 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 demonstrate the element of causation because Plaintiffs cannot prove Mr. Lewallen’s exposure to any toxic compounds the product might have contained. The burden therefore does not shift to Plaintiffs to establish a triable issue of fact in this respect.

 

2.      Toxicity

 

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 in that case 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 any 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.) For the reasons stated above, however, 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 CSI. (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 concealment 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. 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 Concrete Sealants 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 14, 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.