SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
|JAMES W. LYNN and SHEELAGH LYNN,
CALAVERAS ASBESTOS, LTD., a California Corporation with its principal place of business in the State of California; CALAVERAS NATURAL RESOURCES, INC., a Nevada Corporation with its principal place of business in the State of California; and DOES 1-350 inclusive,
|Case No. 21CV391416
TENTATIVE RULING RE: MOTION FOR SUMMARY JUDGMENT OR [SIC] IN THE ALTERNATIVE SUMMARY ADJUDICATION
The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas on August 10, 2022 at 1:30 p.m. in Department 3. The court now issues its tentative ruling as follows:
This personal injury action brought by plaintiffs James W. Lynn (“Mr. Lynn”) and Sheelagh Lynn (collectively, “Plaintiffs”) arises out of Mr. Lynn’s malignant mesothelioma, which was allegedly caused by exposure to asbestos. The operative First Amended Complaint, filed on December 13, 2021, sets forth causes of action for: (1) Strict Liability; (2) Negligence; (3) False Representation Under Restatement of Torts Section 402-B; (4) Intentional Tort/Intentional Failure to Warn/Concealment; and (5) Loss of Consortium.
Defendant Ferguson Enterprises, LLC (“Defendant”), as successor by merger with Westburne Supply, Inc., successor-in-interest to P.E. O’Hair & Co. (“P.E. O’Hair”), now moves for summary judgment of the action and, alternatively, for summary adjudication of Plaintiffs’ request for punitive damages. Plaintiffs oppose the motion.
- OBJECTIONS TO EVIDENCE
- Plaintiffs’ Objections
Plaintiffs submit objections to Exhibits 6-9 attached to Defendant’s index of exhibits on the grounds of hearsay, lack of foundation, and lack of authentication. Exhibit 6 is a copy of Western Plumbing Supply, Co., Ltd.’s Articles of Incorporation filed with the California Secretary of State’s Office, dated February 4, 1931. Exhibit 7 is a copy of Western Plumbing Supply, Co., Ltd.’s Certificate of Approval of Merger into P.E. O’Hair filed with the California Secretary of State’s Office, dated January 2, 1975. Exhibit 8 is a copy of San Jose Telephone Directories for 1963-1975 referencing Western Plumbing Supply. Exhibit 9 is a copy of an October 1960 article from the Supply House Times, “The Winning Formula of Neil O’Hair: Play it By Ear.”
Defendant’s counsel declares that each of the exhibits is a true and correct copy of what the documents purport to be. (Declaration of Robert L. Nelder In Support Of Defendant Ferguson Enterprises, LLC … Motion For Summary Judgment, Or [Sic] In The Alternative, Summary Adjudication, ¶¶ 7-10.) The declaration provides no further foundation for these documents, and apart from the ineffectual boilerplate conclusion that counsel would testify competently (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 169), provides no foundation for pertinent personal knowledge.
Evidence presented to support a motion for summary judgment or summary adjudication must be admissible, based on an affirmative showing that the declarant has personal knowledge and is competent to testify to the matters stated. (Code Civ. Proc., § 437c, subd. (d).) Exhibits offered on law and motion may be authenticated through attorney declarations if the attorney declarant demonstrates personal knowledge of how various documents were obtained, how they have been identified, who had identified them, and their status as true and correct copies of the originals. (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 523.) For example, an attorney may authenticate exhibits through a declaration where that exhibit was produced at deposition and authenticated during the deposition by a witness who has personal knowledge of the document’s creation because the witness created the document. (Ibid.)
Such information is not set forth in the attorney declaration here. Defendant has not offered any evidence to establish the foundational facts necessary to authenticate Exhibits 6-9. The declaration submitted by Defendant’s counsel does not contain facts demonstrating that he has personal knowledge of the subject documents or any of the foundational facts required to authenticate the documents. Thus, the objections based on lack of foundation and failure to authenticate are well taken.
In response to Plaintiffs’ hearsay objections, Defendant in reply improperly places argument concerning evidentiary objections in counsel’s declaration. (Marriage of Heggie (2002) 99 Cal.App.4th28, 30 n. 3 (“The proper place for argument is in points and authorities, not declarations.”).) First, Defendant appears to argue, based on Evidence Code section 1331, that because each of Exhibits 6-9 bears a date more than 30 years ago, they are admissible for the truth of the matters stated therein pursuant to Evidence Code section 1331. However, that section does not provide that age alone makes a hearsay statement reliable. Defendant presents no argument and no foundational facts concerning the second element of section 1331: “the statement has been since generally acted upon as true by persons having an interest in the matter.”
Defendant also appears to argue that Evidence Code section 1530 renders Exhibits 6-8 admissible for their truth. However, section 1530 is not an exception to the hearsay rule, but rather it appears in the chapter relating to secondary evidence of writings. In that chapter, Evidence Code section 1521 provides: “The content of a writing may be proved by otherwise admissible secondary evidence.” This language “clearly indicates that compliance with this [secondary evidence] rule does not eliminate either hearsay or authenticity problem.” (Simons, California Evidence Manual, § 8.19.)
Regarding Exhibit 8 (phone directories), Evidence Code section 1340, on which Defendant relies, provides: “Évidence of a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation is not made inadmissible by the hearing rule if the compilation is generally used and relied upon as accurate in the course of a business as defined in Section 1270.” The published compilation exception is deemed to be an indication of exceptional trustworthiness not generally present in unsworn extrajudicial statements because “‘the business community generally uses and relies upon the compilation and … its author knows the work will have no commercial value unless it is accurate.’ [Citation.]” (People v. Franzen (2012) 210 Cal.App.4th 1193, 1208.) Apparently, Defendant is offering Exhibit 8 to argue that there is significance to the absence of P.E. O’Hair from certain San Jose phone directories between 1963 and 1975. (Defendant’s Memorandum of Points and Authorities, at p. 8:2-4.) Defendant provides no foundation that the business community generally relies on the completeness of a phone directory.
Finally, Defendant argues that a newspaper article should be admitted for its truth because of Evidence Code section 645.1. That stature is not an exception to the hearsay rule, but provides: “Printed materials, purporting to be a particular newspaper or periodical, are presumed to be that newspaper or periodical if regularly issued at average intervals next exceeding three months.”
The content of the subject documents is inadmissible hearsay, and Defendant has not shown that any exception to the hearsay rule applies. (See Evid. Code § 1200.)
Accordingly, the objections on the grounds of hearsay, lack of foundation, failure to authenticate are sustained. (See Evid. Code, §§ 403, subd. (a) & 702.)
- Defendant’s Objections
Defendant submits several objections to “Plaintiff’s deposition testimony,” “written interrogatory responses,” and “written discovery information” as “referenced in Plaintiffs’ Opposition Papers.” Defendant’s objections do not cite to specific portions of Mr. Lynn’s deposition testimony or specific interrogatory responses. The objections fail to comply with Rule of Court 3.1354.
As best the court can tell, it appears that Defendant is objecting to those portions of Mr. Lynn’s deposition testimony and Plaintiffs’ responses to interrogatories that Plaintiffs cite in support of their responses to Defendant’s Undisputed Material Facts (“UMF”), Nos. 9-10 and 12-35. Defendant’s objections to Mr. Lynn’s deposition testimony and Plaintiff’s responses to interrogatories lack merit. First, Defendant submitted as evidence with its moving papers many of the subject portions of Mr. Lynn’s testimony and Plaintiffs’ discovery responses; therefore, Defendant waived the right to object to Plaintiffs’ reliance on the same evidence. (See Ganiats Constr., Inc. v. Hesse (1960) 180 Cal.App.2d 377, 390 [“Where one introduces evidence of certain facts he waives the right to object to the offer of evidence of the same facts by his opponent … .”]; see also People v. Dickenson (1962) 210 Cal.App.2d 127, 132 [a defendant “cannot . . . base an assignment of error upon the introduction of the very evidence he helped develop”]; People v. Williams (1988) 44 Cal.3d 883, 912; People v. Gorgol (1953) 122 Cal.App.2d 281, 294.)
Second, as to the portions of Mr. Lynn’s deposition testimony and Plaintiffs’ responses to interrogatories introduced for the first time by Plaintiffs in opposition to the motion, Defendant’s objections on the grounds of assumes facts, vague, ambiguous, lacks foundation, improper expert opinion, and hearsay, go to the weight of Plaintiffs’ evidence, not its admissibility, and therefore are not well taken.
Accordingly, Defendant’s objections are overruled.
III. LEGAL STANDARD
The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73.)
A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a); All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 954 [“Summary judgment is proper only if it disposes of the entire lawsuit.”].) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. [Citation.] 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.’ [Citation.] ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.]” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 (Madden).)
“Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. ([Code Civ. Proc.,] § 437c, subd. (f).) … Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment.’ ” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464.)
For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny the motion on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Superior Court (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Superior Court (1977) 70 Cal.App.3d 656, 660.) As summary judgment or adjudication “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing the motion and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-718.)
- SUMMARY JUDGMENT
Defendant moves for summary judgment on the ground that there is no triable issue of material fact with respect to the element of causation. Defendant argues that Plaintiffs have no evidence, and are unable to produce evidence, showing that Mr. Lynn was exposed to an asbestos-containing product supplied by Defendant’s predecessor, P.E. O’Hair. Specifically, Defendant states that Mr. Lynn failed to identify Western Plumbing Supply, the local San Jose affiliate of P.E. O’Hair, as a supplier of asbestos pipe at the time of the alleged exposure. Defendant contends that Mr. Lynn’s failure to recognize the proper entity demonstrates that he is unable to prove causation. Defendant further asserts Mr. Lynn’s alleged exposure to asbestos from Defendant is speculative because Mr. Lynn could not identify a specific location, jobsite, or property where he used asbestos-containing materials supplied by P.E. O’Hair, and P.E. O’Hair was one of multiple suppliers of asbestos cement pipe.
In opposition, Plaintiffs contend that Defendant’s first argument regarding the identification of Western Plumbing Supply lacks merit because it based on inadmissible evidence. Plaintiffs further argue that even if the evidence were admissible, Defendant fails to meet its burden because the evidence does not show that the P.E. O’Hair branch location in the San Jose area was known as Western Plumbing Supply, rather than as P.E. O’Hair, during the relevant time period, or that P.E. O’Hair did not operate a branch under its name, or deliver materials and supplies to shops or jobsites, in the San Jose area during that time period. Plaintiffs also assert that Defendant offered deposition testimony from Mr. Lynn in support of its motion that is sufficient, in and of itself, to raise a triable issue of material fact. Plaintiffs highlight Mr. Lynn’s testimony that he worked with asbestos cement pipe supplied by P.E. O’Hair, he saw a P.E. O’Hair vehicle deliver asbestos cement flue pipe to “probably almost all of his” employers, that he saw trucks with “the name ‘P.E. O’Hair’ on them” make deliveries to his jobsites, and that he recalled visiting a P.E. O’Hair branch located in the San Jose area. Plaintiffs contend that, contrary to Defendant’s assertion otherwise, they are not required to prove a specific exposure to a specific product on a specific date or time. Plaintiffs maintain that Mr. Lynn’s inability to recall any of the specific locations, jobsites, or properties where he worked with asbestos cement pipe supplied P.E. O’Hair merely goes to Mr. Lynn’s credibility, which is not at issue on summary judgment. Lastly, Plaintiffs assert that Defendant’s final argument regarding multiple suppliers of asbestos cement pipe ignores Mr. Lynn’s testimony that he worked with asbestos cement pipe supplied by P.E. O’Hair. Plaintiffs contend that in light of Mr. Lynn’s testimony, this case is analogous to Turley v. Familian Corp. (2017) 18 Cal.App.5th 969 (Turley) and Mr. Lynn’s testimony is sufficient to establish a triable issue of material fact.
“In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982, italics omitted.) “In short, there are two elements to plaintiffs’ claims: (1) ‘some threshold exposure,’ and (2) ‘legal cause.’ ” (Turley, supra, 18 Cal.App.5th at p. 979.)
Defendant’s first argument regarding Mr. Lynn’s purported failure to identify Western Plumbing Supply as a supplier of asbestos cement pipe lacks merit because it is predicated on Exhibits 6-9 which are inadmissible for the reasons explained above. Furthermore, even if Exhibits 6-9 were admissible, the documents do not show that Plaintiffs are unable to prove that Mr. Lynn was exposed to asbestos cement pipe supplied by P.E. O’Hair. Exhibits 6-8 do not establish that Western Plumbing Supply was an affiliate of P.E. O’Hair, that it operated as an affiliated branch of P.E. O’Hair in San Jose beginning in 1931, or that the branch location continued to operate until the merger with P.E. O’Hair in 1975. Furthermore, Exhibit 8 fails to demonstrate that P.E. O’Hair did not have a branch location under its own name in San Jose or that it did not deliver materials or supplies to shops or jobsites in the area. Lastly, Exhibit 9 was published in 1960, two years prior to the relevant exposure period; therefore, it has no bearing on Plaintiffs’ claims.
Defendant’s remaining argument—that Mr. Lynn’s alleged exposure is speculative because Mr. Lynn could not identify a specific location, jobsite, or property where he used asbestos-containing materials supplied by P.E. O’Hair, and P.E. O’Hair was one of multiple suppliers of asbestos cement pipe—also lacks merit. As Plaintiffs persuasively argue, “to establish exposure in an asbestos case a plaintiff has no obligation to prove a specific exposure to a specific product on a specific date or time. Rather, it is sufficient to establish ‘that defendant’s product was definitely at his work site and that it was sufficiently prevalent to warrant an inference that plaintiff was exposed to it’ during his work there. [Citation.]” (Turley, supra, 18 Cal.App.5th at p. 985.)
Here, Defendant presents testimony from Mr. Lynn in its moving papers that is sufficient to establish a triable issue of material fact with respect to Mr. Lynn’s exposure. (See Duffey v. Tender Heart Home Care Agency, LLC (2019) 31 Cal.App.5th 232, 241, fn. 6 [“The moving party’s evidence alone may establish a triable issue of fact.”]; see also Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 297 [“The submission of evidence which is equivocal or from which conflicting inferences may be drawn is insufficient to meet the movant’s burden.”].) At deposition, Mr. Lynn testified that P.E. O’Hair was a supplier of the asbestos cement pipe that he worked with; he saw a P.E. O’Hair vehicles deliver asbestos cement flue pipe to “probably almost all of his” employers; he saw trucks with “the name ‘P.E. O’Hair’ on them” make deliveries to his jobsites; he received and signed for deliveries of asbestos cement pipe by P.E. O’Hair at his jobsites; and he recalled visiting a P.E. O’Hair branch location in the San Jose area. (Defendant’s Index of Exhibits, Volumes 1 & 2, Exs. 4-5, Lynn Deposition, pp. 55-59, 64, 220-221, & 224.) Notably, Mr. Lynn’s testimony is similar to the testimony at issue in Turley, where the reviewing court held that the testimony regarding exposure was sufficient to create a triable issue of material fact. (See Turley, supra, 18 Cal.App.5th at p. 981 [“Scott’s testimony established that Familian-supplied asbestos-containing gaskets were frequently used at Turley’s worksite throughout the five years that Scott was the person ordering, procuring, and distributing such products to the sites—and that Turley used them.”].) Because Mr. Lynn explicitly testified that he used P.E. O’Hair asbestos cement pipe in his work, the fact that P.E. O’Hair was not the only, or primary, supplier of asbestos-containing cement pipe does not lead to the conclusion that Plaintiffs cannot establish exposure. (Ibid. [“[T]he fact that Familian was not the only supplier of asbestos-containing gaskets does not warrant the conclusion that Turley did not establish exposure. … [T]here is no requirement that plaintiffs show that Familian was the exclusive, or even the primary, supplier of asbestos-containing gaskets to PG&E.”].)
Accordingly, Defendant’s motion for summary judgment is DENIED.
- SUMMARY ADJUDICATION
Alternatively, Defendant moves for summary adjudication of Plaintiffs’ request for punitive damages on the ground Plaintiffs do not possess, and cannot reasonably obtain, evidence that P.E. O’Hair engaged in conduct that constituted malice, fraud or oppression. Defendant contends that Mr. Lynn’s deposition testimony shows that Mr. Lynn had no knowledge of any misrepresentations, concealment of facts, or a conscious disregard for his health and safety. Defendant also asserts in a conclusory manner that Plaintiffs’ discovery responses are devoid of any specific facts or references to any documents that support their claim for punitive damages. Finally, Defendant argues that Plaintiffs do not have any evidence that an officer, director, or managing agent of Defendant engaged in oppression, fraud, or malice, or authorized or ratified any such wrongful conduct. Defendant states that Plaintiffs’ discovery responses merely cite to former PMK witnesses of Defendant without detailing their actions or conduct beyond general negligence/supplier activity. Defendant also asserts in a conclusory manner that none of the documents identified in Plaintiffs’ discovery responses reflect actions or conduct by Defendant meriting punitive damages.
In opposition, Plaintiffs contend that although Defendant argues that their discovery responses are factually devoid, they are not: the responses to the relevant discovery requests identified numerous individuals and documents. Plaintiffs also contend that Defendant’s argument regarding the identification of an officer, director, or managing agent of Defendant is misguided because Plaintiffs are not required to introduce clear and convincing proof that at least one particular employee, officer, director, or managing agent acted with malice. Rather, it is enough if the evidence permits a clear and convincing inference that the corporation possessed the information and the information moved upward to a point where corporate policy was formulated.
As a claim for damages, the prayer for punitive damages is a proper subject for summary adjudication. (Code Civ. Proc., § 437c, subd. (f)(1).) An award of punitive damages requires “clear and convincing” evidence that the defendant has been guilty of “oppression, fraud, or malice” in the commission of a tort. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121; Civil Code § 3294, subd. (a).) “Where the … ‘clear and convincing’ evidence requirement applies, the trial judge’s summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant.” (Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 60.)
As Plaintiffs persuasively argue, Defendant fails to meet its initial burden on summary adjudication. As a preliminary matter, the mere fact that Mr. Lynn purportedly lacks personal knowledge with respect to any misrepresentations, concealment of facts, or a conscious disregard for his health and safety does not mean that Plaintiffs do not possess, or cannot reasonably obtain, such evidence. (See Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439 [“[T]he cases do not establish that a defendant shifts the burden of production to the plaintiff by showing that a plaintiff witness has no personal recall of [a particular fact]. Under the standard enunciated in Aguilar [citation], the defendant must make an affirmative showing that the plaintiff will be unable to prove its case by any means.”].)
Next, Defendant’s conclusory assertion that Plaintiffs’ discovery responses are devoid of any specific facts or references to any documents that support their claim for punitive damages is not well taken. Plaintiffs’ responses to interrogatories identify numerous persons who are allegedly officers, directors, or managing agents of Defendant who engaged in oppression, fraud, or malice, or authorized or ratified any such wrongful conduct, as well as documents that purportedly contain facts supporting Plaintiffs’ request for punitive damages. (Defendant’s Index of Exhibits, Volume 2, Ex. 11, pp. 25 & 42, & Ex. 13, pp. 3-6 & 9.) There is no requirement that the evidence establish that a particular individual within the corporation acted on a particular date with malice. Rather, a plaintiff can simply present evidence showing the information in the possession of the corporation and the structure of management decision-making that permits an inference that the information in fact moved upward to a point where corporate policy was formulated. (See Morgan v. J-M Manufacturing Co., Inc. (2021) 60 Cal.App.5th 1078, 1089-1091.) Defendant fails to explain why Plaintiffs’ responses should be deemed factually devoid in light of the details that they contain. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)
Plaintiffs’ response to Special Interrogatory No. 13 states that Defendant had knowledge by 1930 that asbestos or asbestos-containing products could be harmful; Defendant continued to distribute, sell, and/or supply such products; Defendant failed to warn consumers of the dangers inherent in such products; and Defendant intentionally failed to disclose its knowledge to members of the public in order to protect its financial interests. (Defendant’s Index of Exhibits, Volume 2, Ex. 11, pp. 13-15.) A prolonged failure to take adequate measures to protect people exposed to a company’s products against a known hazard to their health and safety can justify the conclusion that the company’s conduct was malicious, fraudulent, or oppressive. (See Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 86.) Plaintiffs’ discovery responses provide some factual support for this theory of liability and, therefore, are not factually devoid. For Defendant to meet its initial burden, Defendant would need to provide evidence that it did not know of the dangers presented by asbestos or that it provided warnings or took other measures to protect people exposed to Defendant’s asbestos-containing products. Defendant has submitted no such affirmative evidence.
Accordingly, Defendant’s alternative motion for summary adjudication is DENIED.
The court will prepare the final order if this tentative ruling is not contested