Judge: Theresa M. Traber, Case: 19STCV06421, Date: 2023-02-21 Tentative Ruling

Case Number: 19STCV06421    Hearing Date: February 21, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 21, 2023                             TRIAL DATE:  April 18, 2023

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

CASE NO.:                 19STCV06421

MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:               Defendant Durapax, LLC. (Doe 32)

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 Durapax, LLC moves for summary judgment.

TENTATIVE RULING:

Defendant Durapax, LLC’s motion for summary judgment is GRANTED.

DISCUSSION:

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

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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

            Defendant raises evidentiary objections to the Declarations of Robert Harrison and Raphael Metzger in support of the opposition papers. As the Court does not rely on these documents in reaching its ruling, the Court declines to rule on these objections. (Code Civ. Proc. § 437c(q).)

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 such that Defendant could be liable for Mr. Lewallen’s cancer. The Complaint, as amended, alleges that Plaintiff James Lewallen was exposed to toxic compounds from Defendant’s LiquidPitch and Coal Tar Roofing Pitch products. (November 1, 2019 Amendment to Complaint.) Defendant states that, although Plaintiff initially testified that he encountered Defendant’s products while working as an inspector for All American, Plaintiff subsequently recanted his testimony in both written interrogatories and subsequent deposition testimony. (Defendant’s Separate Statement of Undisputed Material Fact Nos. 10-12.) Further, while Defendant concedes that Plaintiff stated broadly in written discovery responses that he was exposed to Defendant’s products while working for Van Dijk and Associates (SSUMF No. 8), defense counsel attests in his declaration to being unable to locate any reference to Defendant or its products in Van Dijk’s work orders, which were identified by Plaintiffs as documents supporting their allegations. (SSUMF Nos. 18-19.) Defendant provided a declaration under penalty of perjury by Defendant’s counsel that no reference to Durapax or its product was located in the records, but did not actually provide the records themselves. (Defendant’s Exhibit J.) Defendant also offers Nils Van Dijk’s testimony that he had not heard of Durapax and had no information that Plaintiff ever worked at a site where Durapax products were present. (SSUMF No. 14.)  Defendant further challenges Plaintiffs’ claims as to exposure while working for Van Dijk by stating that the only other supporting evidence was Plaintiff’s testimony that he heard an anonymous individual mention the name “Durapax.” (SSUMF No. 13.) Defendant contends that this statement is inadmissible hearsay.

            The Court is persuaded that the evidence offered by Defendant is sufficient to meet its initial burden on summary judgment. Defendant has offered evidence, by way of Plaintiff James Lewallen’s admissions in deposition testimony, that Plaintiff was not exposed to any of Defendant’s products during his employment at All American. Plaintiffs initially offered evidence under penalty of perjury that Mr. Lewallen worked with Durapax products during his time at Van Dijk and Associates and identified documents supporting that contention. In response, Defendants have offered evidence, by way of a declaration of counsel summarizing the documents, that the documents in question do not support that claim. Section 1523, subdivision (d), of the Evidence Code expressly permits oral testimony of the content of a writing if “the writing consists of numerous accounts for other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.” (See Heaps v. Heaps (2004) 124 Cal.App.4th 286, 294.) A declaration of counsel, like the one submitted by Defendant here, is properly considered by the court because the summary motion procedure authorizes the trial court to rely upon declarations. (Code Civ. Proc. § 437c(b)(1).) Further, Mr. Lewallen’s subsequent deposition testimony appears to show that he did not actually use with or inspect any Durapax products during his employment at Van Dijk & Associates. (See Defendant’s Exh. H pp. 584:5-585:11.) Taken in aggregate, this evidence demonstrates that Durapax’s products were not present at any of the sites Mr. Lewallen inspected and, therefore, that Plaintiffs cannot establish that Durapax caused Mr. Lewallen’s injuries. The burden now shifts to Plaintiffs to demonstrate a triable issue of fact on the question of causation.

            Plaintiffs’ primary argument in opposition is that Defendant failed to meet its initial burden. As the Court has reached the opposite conclusion, this argument is necessarily unpersuasive. On the question of whether there are triable issues of fact, Plaintiffs advance only a single paragraph of arguments identifying potential issues of fact that are not related to the question of whether Durapax products were ever present at any of the sites Plaintiff inspected. Nor do Plaintiffs submit any new evidence in their separate statement, instead pointing to the same initial deposition testimony where Mr. Lewallen said that he thought he encountered the name Durapax when working for All American, but this is the same testimony which Plaintiff recanted in his later deposition. Plaintiffs also argue that the work orders are not dispositive because, if Mr. Lewallen did encounter the product while working for Van Dijk & Associates, it was “likely early in his employment with Van Dijk at a time when Van Dijk no longer has records, or was in his work as a roofing construction worker before Van Dijk.” (Separate Statement of Disputed Fact No. 19.)  But Plaintiffs do not offer any admissible evidence of these assertions, as they are required to do on summary judgment. Faced with this absence of evidence, the Court must conclude that Plaintiffs failed to demonstrate the existence of a triable issue of fact on the question of causation. Defendant is therefore entitled to summary judgment as a matter of law.

CONCLUSION:

Accordingly, Defendant Durapax, LLC’s motion for summary judgment is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  February 21, 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.