ELAINE ADELIA HICKEY HERMAN, ET AL. VS 3M COMPANY, ET AL.

Tentative Rulings

Case Number: *******2540 Hearing Date: April 5, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION TO STAY

On October 4, 2022, Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. (“Plaintiffs”) filed this action alleging Plaintiff Elaine Adelia Hickey Herman developed mesothelioma as a result of exposure to asbestos. On January 25, 2023, Defendants Colgate-Palmolive Company and Mary Kay, Inc. (collective, “Defendants”) filed motions to stay this case pursuant to the doctrine of forum non conveniens.

Defendants request judicial notice of (1) the complaint in this case; (2) a copy of Court’s docket; (3) Exhibits E through G attached to Declaration of Christopher D. Strunk (“Strunk Decl.”); (4) Mary Kay’s own asbestos docket. Plaintiffs did not object. Therefore, the Court grants judicial notice of the documents in accordance with the Evidence Code section 452 subds. (c) and (d).

I. Defendants’ Objections

Nos. 1, 2, 3, 4, 6, 7: Overruled.

No. 5: The court did not rely on this evidence.

II. Legal Standard

“Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) When a court finds “in the interest of substantial justice an action should be heard in a forum outside this state,” it “shall stay or dismiss the action in whole or in part on any conditions that may be just.” (Code Civ. Proc. 410.30(a).)

Under the traditional forum non conveniens analysis, a court must first “determine whether a suitable alternative forum exists.” (National Football League v. Fireman's Fund Insurance Co. (2013) 216 Cal.App.4th 902, 917.) A suitable alternative forum is one where the defendant is subject to jurisdiction (or otherwise stipulates) and the statute of limitations would not bar the plaintiff's case in that forum. (Stangvik, supra, 54 Cal.3d at 752 n.3.) Generally the moving party must show that all defendants are subject to the other state’s jurisdiction. (American Cemwood Corporation v. American Home Assurance Company (2001) 87 Cal.App.4th 431, 440.) However, in cases with a large number of defendants, it may be “unreasonable to expect the moving defendant to prove all defendants are subject to jurisdiction in a particular alternative forum.” (Hansen v. Owens-Corning Fiberglas Corporation (1996) 51 Cal.App.4th 753, 759.) In that situation, staying the action “pending a determination that all defendants are subject to jurisdiction” in the alternative forum may be appropriate. (Ibid.)

If there is a suitable alternative forum, the court proceeds to the next step of balancing “the private interests of the parties and the public interest in keeping the case in California.” (National Football League, supra, 216 Cal.App.4th at 917.) These factors must be balanced flexibly, and no single factor should be unduly emphasized. (Stangvik, supra, 54 Cal. 3d at 753.) An action should “be dismissed or stayed if a suitable alternative exists and the balance of private and public interest factors weigh in favor of the litigation proceeding in an alternative forum. (Hansen, supra, 51 Cal.App.4th at p. 758.)

“[T]he defendant, as the moving party, bears the burden of proof on a motion based on forum non conveniens. (Stangvik, supra, 54 Cal.3d at 751.) The court is not required to accept the allegations in the complaint as true, but rather, “must consider and review all the declarations, papers and data which are submitted in connection with the motion[.]” (Hemmelgarn v. Boeing Co. (1980) 106 Cal. App. 3d 576, 587.)

III. Suitable Alternative Forum

Defendants argue Connecticut is a suitable alternative forum because the Connecticut’s statute of limitations does not bar Plaintiffs’ claims, Defendants are subject to jurisdiction in Connecticut, and a majority of the defendants either consent to Connecticut jurisdiction or do not oppose transfer of the case. (Strunk Decl. 11-13, Exs. C and D.) Defendants argue that this case is therefore similar to Hansen. Plaintiffs argue only five defendants expressly consented to jurisdiction in Connecticut and twelve others have either agreed not to object or have not opposed the filing of Defendants’ motions. (Opposition at p. 4.)

Plaintiffs named 49 defendants. Five have been dismissed, leaving 44 defendants. Sixteen defendants stipulated to or agreed not to contest Connecticut’s jurisdiction: Colgate-Palmolive Company; Mary Kay, Inc.; L’Oreal USA Products, Inc.; L’Oreal USA, Inc.; Maybelline LLC; Coty Inc.; Noxell Corporation; American International Industries; Glamour Industries, Co.; Whittaker, Clark & Daniels, Inc.; SPX Corporation; Ford Motor Company; Avon Products, Inc.; Morse Tec LLC; Pep Boys; and Honeywell International Inc. (Strunk Decl., Exs. C and D; Suppl. Strunk Decl., Ex. AA.) Five others – Barretts Minerals Inc.; Mineral Technologies Inc.; Pfizer Inc.; Specialty Minerals Inc.; and Illinois Tool Works Inc. – stated they would not oppose the motion. (Strunk Decl., Ex. D.) Four other defendants filed statements that they would not contest Connecticut jurisdiction or stipulated to Connecticut’s jurisdiction, including Toyota Motor Sales, U.S.A., Inc.; Honda Motor Co., Inc.; Charles B. Chrystal Company; and BASF Catalysts LLC.

Plaintiffs argue that three defendants are not subject to jurisdiction in Connecticut. (Opposition at pp. 5-6.) One of those defendants – Pep Boys – stipulated to Connecticut’s jurisdiction. (Supp. Strunk Decl., Ex. AA.) Plaintiffs now argue there was no exposure from Autozone West LLC products in Connecticut, only in California. (Opposition at p. 6; Jacob Herman Decl., 8.) But Plaintiffs claim exposure from AutoZone West LLC’s products from the 1970s to the 2000s. (Request for Judicial Notice, Ex. 1 at p. 2.) Because Plaintiffs moved back to Connecticut in 1985, they are claiming at least 15 years of exposure to AutoZone West LLC’s products in Connecticut, which would support Connecticut’s jurisdiction over that defendant.

Following the reasoning of Hansen, in an asbestos case with a large number of defendants like this one, a court can stay a case to allow the other forum to determine whether all defendants are subject to that other forum’s jurisdiction. As that court noted, “[g]iven the early stage for bringing a forum non conveniens motion, it would likely be unclear in many cases whether all defendants were even subject to jurisdiction in California.” (Hansen, supra, 51 Cal.App.4th at p. 759.) That is the situation here, with multiple motions to quash for lack of personal jurisdiction on calendar. Under the reasoning of Hansen, the court can stay this action “pending a determination that all defendants are subject to jurisdiction in [Connecticut].” (Ibid.)

IV. Balancing of the Private and Public Interest Factors

“The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses.” (Strangvik, supra, 54 Cal.3d at p. 751.) “The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.” (Ibid.)

The Judicial Council comments to Code of Civil Procedures section 410.30 list the following factors to be considered in this balancing: (1) Where the residence or the principal place of business of each party is located; (2) Whether some or all of the parties regularly conduct business or other activities in this state; (3) Whether the situation, transaction or events out of which the action arose exists, occurred in, or had a substantial relationship to this state; (4) Whether any party would be substantially disadvantaged in having to try the action (a) in this state or (b) in the forum in which the moving party asserts it ought to be tried; (5) Whether any judgment entered in the action would be enforceable by process issued or other enforcement proceedings undertaken in this state; (6) Whether witnesses would be inconvenienced if the action were prosecuted (a) in this state or (b) in the forum in which the moving party asserts it ought to be prosecuted; (7) The relative expense to the parties of maintaining the action (a) in this state and (b) in the state in which the moving party asserts the action ought to be prosecuted; (8) Whether a view of premises by the trier of fact will or might be necessary or helpful in deciding the case; (9) Whether prosecution of the action will or may place a burden on the courts of this state which is unfair, inequitable or disproportionate in view of the relationship of the parties or of the cause of action to this state; (10) Whether the parties participating in the action, other than those of their own volition, have a relationship to this state which imposes upon them an obligation to participate in judicial proceedings in the courts of this state; (11) The interest, if any, of this state in providing a forum for some or all of the parties to the action; (12) The interest, if any, of this state in regulating the situation or conduct involved; and (13) The avoidance of multiplicity of actions and inconsistent adjudications. The court addresses each of these factors below.

(1) Plaintiffs live in Connecticut. Plaintiffs argue that three defendants have their principal places of business in California (either headquartered or incorporated in California). One of those defendants – Pep Boys – stipulated to Connecticut’s jurisdiction. (Supp. Strunk Decl., Ex. AA.) The locations of the other defendants are not addressed. See also factor (3) below. This factor weighs in favor of Connecticut.

(2), (10) Plaintiffs allege all defendants regularly conduct business in California. Four defendants filed motions to quash service of summons for lack of personal jurisdiction in California, but not all of those motions are based on the lack of business in the state. Most defendants did not file such a motion, suggesting they do regularly conduct business in California. Plaintiffs state three defendants did not regularly conduct business in Connecticut. Defendants do not dispute that, but contend those three defendants are sham defendants. Defendants did not establish they are sham defendants. The defendants with their principal places of business in California, who directed their business activities to California, and who directed activities that are related to the claims here (i.e., the defendants over whom California has personal jurisdiction) have an obligation to participate in judicial proceedings in California. These factors weighs in favor of California.

(3) Elaine Herman has lived in Connecticut for over 37 years. Before that, she lived in California from 1978 to 1985. (Strunk Decl., Ex. B at p. 3; Herman Decl., 3.) Before moving to California in 1978, she lived in Connecticut from her birth in 1957 except for one year in Florida. (Ibid.) Her claims are based on using the asbestos-containing products or being exposed to asbestos in both California and Connecticut. She claims she was first exposed to asbestos in 1957, and the asbestos exposure continued to the present. (Request for Judicial Notice, Ex. 1, Preliminary Fact Sheet at p. 2.) She used talcum powder product her entire life. (Elaine Herman Decl., 4.) She was exposed to asbestos from talcum powder, cosmetic products, and auto products in Connecticut from the late 1950s to the late 1970s. (Complaint at pp. 54, 55; Fleming Decl., 3.) In California from the late 1970s to the mid 1980s, she was exposed to asbestos from talcum powder, cosmetics, talc brush, and auto products. (Complaint at pp. 54, 55; Elaine Herman Decl., 6, 9; Jacob Herman Decl., 4.) After moving back to Connecticut in 1985 to the present, she was exposed to asbestos from talcum powder, cosmetics, and auto parts. (Complaint at pp. 54, 55.) This factor weighs equally as the alleged exposure occurred in both locations.

(4) Plaintiffs argue they would be substantially disadvantaged by having the action tried in Connecticut because that state does not have a preference statute. (Opposition at p. 10.) The California Supreme Court disapproved of the conclusion that a plaintiff is substantially disadvantaged where the law of the other jurisdiction is not as favorable to the plaintiff as California law. (Stangvik, supra, 54 Cal.3d at pp. 763-764.) “[T]he fact that an alternative jurisdiction’s law is less favorable to a litigant than the law of the forum should not be accorded any weight in deciding a motion for forum non conveniens provided, however, that some remedy is afforded.” (Id. at p. 753 n.5.) The Supreme Court explained, “if substantial weight is given to the fact that the law in the forum state is more favorable to a plaintiff than in the foreign jurisdiction, the balance will ordinarily favor denial of the motion, and substantial weight should be given to this factor only if the alternative forum provides no remedy at all. (Id. at p. 764.) The Supreme Court concluded that the fact the plaintiff would be disadvantaged by the law in the other jurisdiction “may not be considered in the forum non conveniens balance.” (Ibid.) (See also Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1468 n.8.)

Based on Stangvik, the court cannot consider the fact that Connecticut does not have a preference statute comparable to California’s statute, so long as some remedy is afforded. The parties do not contend that Connecticut affords no remedy at all.

Plaintiffs and many of Plaintiffs’ witnesses such as medical providers and family members are in Connecticut. (Strunk Decl., Ex. B at Ex. A.) Therefore, Plaintiffs will not be substantially disadvantaged by trying the case in Connecticut. Defendants will be more disadvantaged by trying the case in California because they cannot subpoena the Connecticut-based witnesses to attend a trial in California. This disadvantage may be less these days when many out-of-state witnesses are willing to testify at trial remotely. However, the defendants will not be able to require those witness to testify at trial, whether in person or remotely. If out-of-state witnesses do not volunteer to testify at a California trial, the defendants’ only option will be to use those witnesses’ deposition testimony at trial. This factor weighs in favor of Connecticut.

(5) The parties did not address this factor.

(6), (7) Elaine Herman’s medical providers, medical records and treatment are in Connecticut. (Strunk Decl., Ex. B at Ex. A.) Defendants argue that witnesses of her damages (apparently her family members) are in Connecticut. Plaintiffs presented evidence that their fact witness, Dawn Lorena Fleming, stated that she would not be inconvenienced if she has to testify at trial in California. (Fleming Decl. at 4.) Plaintiffs and Fleming are willing to travel to California, but the medical providers cannot be compelled to travel to California to testify. The ease of access to sources of proof, the cost of obtaining witnesses, and obtaining the attendance of witnesses weigh in favor of Connecticut.

(8) This factor is not relevant.

(9), (11), (12) Defendants argue California has an interest in avoiding undue congestion of its courts, and Connecticut has an interest in applying its own laws and regulations to corporations’ conduct within its state involving its citizens. Plaintiffs argue much of Elaine Herman’s asbestos exposure occurred in California, California law will apply to this case, and California has a strong interest in punishing and deterring bad corporate conduct that harms its citizens.

In Morris, the court analyzed a similar scenario where the plaintiff had been exposed to the toxic product for some years while in California but had been exposed for more years in another state and resided in the other state, and where only two defendants were California corporations. The court concluded that while California may have an interest in regulating California corporations that produce harmful products, successful litigation in the other state “would have the same deterrent effect that a California court might afford.” (Morris, supra, 144 Cal.App.4th at p. 1467.) Here, both states have an interest in providing a forum to Plaintiffs for harm occurring within each state, applying their laws to defendants that harmed Elaine Herman by exposing her to asbestos within each state, and in regulating asbestos exposure within the state. But because Plaintiffs are current residents of Connecticut and have been residents there for most of their lives, and most of the years of exposure occurred in Connecticut, these factors weighs in favor of Connecticut.

(13) Plaintiffs argue that because some of the defendants are not subject to personal jurisdiction in Connecticut, there would need to be litigations in both California and Connecticut. As noted above, Pep Boys stipulated to Connecticut jurisdiction. Also, the possibility of multiple actions already exists because the court previously granted the motion to quash by defendant Girard Motors, Inc., which is located in Connecticut and has no connection to California. Thus, this factor is neutral.

Having weighed the factors, the court concludes that on balance, in the interest of substantial justice, this action should be heard in Connecticut. Therefore, the court GRANTS the motion and stays the action. The court sets a status conference re stay for September 14, 2023 at 9 a.m. Five court days before the status conference, the parties are to file a joint report regarding the status of any action in Connecticut.

The moving parties are ordered to give notice.

Case Number: *******2540 Hearing Date: March 21, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION FOR PREFERENCE

On October 4, 2022, Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. (“Plaintiffs”) filed this action against multiple defendants for personal injury caused by asbestos exposure. On February 21, 2023, Plaintiffs filed this motion for trial preference under Code of Civil Procedure section 36, subdivisions (d) and (e).

The court has discretion to grant a motion for trial preference accompanied by clear and convincing medical documentation concluding that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months and satisfying the court that the interests of justice will be served by granting the preference. (Code

Civ. Proc., 36, subd. (d).) In addition, the court in its discretion may grant a motion for preference supported by a showing that satisfies the court that the interests of justice will be served by granting the preference. (Id., 36, subd. (e).)

“Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record.” (Id., 36, subd. (f).) “Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.” (Id.)

As a preliminary matter, section 36, subdivision (c) requires the moving party to serve a declaration stating all essential parties have been served with process or have appeared. Plaintiff’s counsel filed such a declaration. (Gamble Decl., 22; Motion at p. 9.) However, Plaintiffs did not file any proof of service showing they served the complaint and summons on American International Industries, Inc., Asbestos Corporation Limited, Beacon CMP Corporation, Glamour Industries, Co., Los Angeles Rubber Company, The Neslemur Company, and PTI Union, LLC. These defendants have not filed answers or otherwise appeared. (American International Industries filed an answer but American International Industries, Inc. did not.)

Plaintiffs filed evidence that Elaine Herman has malignant pleural mesothelioma. (Haber Decl., 5-6; Gamble Decl., Ex. D.) Dr. Steven E. Haber submitted a declaration stating that he has reviewed Elaine Herman’s medical records. (Haber Decl., 4.) He states that Elaine Herman received five cycles of combination chemotherapy treatments. (Id., 10.) Herman suffers from abdominal pains, fatigue, weight loss, and other significant symptomatology. (Ibid.) She was also diagnosed with chronic kidney disease Stage III. (Herman Decl., 3.) Haber concluded there is substantial medical certainty that Herman’s condition will continue to deteriorate, and there is substantial medical doubt of her survival beyond four to six months from the date of his declaration, which was January 20, 2023. (Haber Decl., 6-7.)

In opposition, Defendants argue Haber did not personally treat Herman and based his opinion only on her medical records. (Haber Decl., 4.) Defendants argue Plaintiffs omitted recent medical records, such as a CT scan taken on January 27, 2023, and medical exam records from September 13, 2022, showing her tumor is not growing. (Karbassi Decl., 7, Ex. B.) Defendants argue that Herman testified she is still working. Herman’s deposition took place on February 24, 2023, March 2, 2023 and March 3, 2023. She testified she takes care of her 91 year old mother. She continues to work full time in a job that requires her to be active, including walking and shopping and talking her clients out. (Dutton Decl., Ex. A at pp. 11, 117-118, 104.)

With their reply, Plaintiffs filed a declaration from Dr. Carrie A. Redlich who personally evaluated Elaine Herman and reviewed her medical records in March 2023. She concluded that Herman’s condition will continue to deteriorate, and there is substantial medical doubt of her survival beyond six months from March 10, 2023. (Redlich Decl., 7.) Plaintiffs also filed additional medical diagnostic documentation and a declaration from Herman’s husband stating Herman is tired, has difficulty sleeping, is in pain, and has anxiety.

The court gives Haber’s declaration little weight because he reviewed incomplete medical records and had no interaction with Herman. While Redlich performed a more comprehensive analysis, by filing her declaration with their reply Plaintiffs deprived Defendants of an opportunity to respond to Redlich’s analysis and conclusions. In addition, the evidence that Herman continues to work full time and care for her mother indicates she still has the ability to engage in many day-to-day tasks.

This motion is CONTINUED to April 5, 2023 at 9 a.m. Defendants may file a supplemental opposition of no more than five pages by March 27, 2023. Plaintiffs may file a supplemental reply of no more than three pages by March 30, 2023.

The moving party is to order to give notice.

Case Number: *******2540 Hearing Date: March 1, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTION RE INCONVENIENT FORUM

On October 4, 2022, Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. (“Plaintiffs”) filed this action alleging Plaintiff Elaine Adelia Hickey Herman developed mesothelioma as a result of exposure to asbestos. On January 25, 2023, Defendants Colgate-Palmolive Company and Mary Kay, Inc. (collective, “Defendants”) filed motions to stay this case pursuant to the doctrine of forum non conveniens.

Defendants request judicial notice of (1) the complaint in this case; (2) a copy of Court’s docket; (3) Exhibits E through G attached to Declaration of Christopher D. Strunk (“Strunk Decl.”); (4) Mary Kay’s own asbestos docket. Plaintiffs did not object. Therefore, the Court grants judicial notice of the documents in accordance with the Evidence Code section 452 subds. (c) and (d).

I. Defendants’ Objections

Nos. 1, 2, 3, 4, 6, 7: Overruled.

No. 5: The court did not rely on this evidence.

II. Legal Standard

“Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) When a court finds “in the interest of substantial justice an action should be heard in a forum outside this state,” it “shall stay or dismiss the action in whole or in part on any conditions that may be just.” (Code Civ. Proc. 410.30(a).)

Under the traditional forum non conveniens analysis, a court must first “determine whether a suitable alternative forum exists.” (National Football League v. Fireman's Fund Insurance Co. (2013) 216 Cal.App.4th 902, 917.) A suitable alternative forum is one where the defendant is subject to jurisdiction (or otherwise stipulates) and the statute of limitations would not bar the plaintiff's case in that forum. (Stangvik, supra, 54 Cal.3d at 752, n.3.) Generally the moving party must show that all defendants are subject to the other state’s jurisdiction. (American Cemwood Corporation v. American Home Assurance Company (2001) 87 Cal.App.4th 431, 440.) However, in cases with a large number of defendants, it may be “unreasonable to expect the moving defendant to prove all defendants are subject to jurisdiction in a particular alternative forum.” (Hansen v. Owens-Corning Fiberglas Corporation (1996) 51 Cal.App.4th 753, 759.) In that situation, staying the action “pending a determination that all defendants are subject to jurisdiction” in the alternative forum may be appropriate. (Ibid.)

If there is a suitable alternative forum, the court proceeds to the next step of balancing “the private interests of the parties and the public interest in keeping the case in California.” (National Football League, supra, 216 Cal.App.4th at 917.) These factors must be balanced flexibly, and no single factor should be unduly emphasized. (Stangvik, supra, 54 Cal. 3d at 753.) An action should “be dismissed or stayed if a suitable alternative exists and the balance of private and public interest factors weigh in favor of the litigation proceeding in an alternative forum. (Hansen v. Owen-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, 758.)

“[T]he defendant, as the moving party, bears the burden of proof on a motion based on forum non conveniens. (Stangvik, supra, 54 Cal.3d at 751.) The court is not required to accept the allegations in the complaint as true, but rather, “must consider and review all the declarations, papers and data which are submitted in connection with the motion[.]” (Hemmelgarn v. Boeing Co. (1980) 106 Cal. App. 3d 576, 587.)

III. Suitable Alternative Forum

Defendants argue Connecticut is a suitable alternative forum because the Connecticut statute of limitations does not bar Plaintiffs’ claims, Defendants are subject to jurisdiction in Connecticut, and a majority of the defendants either consent to Connecticut jurisdiction or do not oppose transfer of the case. (Strunk Decl. 11-13; Strunk Decl., Exs. C and D.) Defendants argue that this case is therefore similar to Hansen. Plaintiffs argue only five defendants expressly consented to jurisdiction in Connecticut and twelve others have either agreed not to object or have not opposed to the filing of Defendants’ motions. (Opposition at p. 4.)

Plaintiffs named 49 defendants. Four have been dismissed, leaving 45 defendants. For ten of those, Plaintiffs have not yet filed proofs of service of the complaint and summons. Thirteen defendants stipulated or did not object to Connecticut’s jurisdiction: L’Oreal USA Products, Inc.; L’Oreal USA, Inc.; Maybelline LLC; Coty Inc.; Noxell Corporation; American International Industries; Glamour Industries, Co.; Whittaker, Clark & Daniels, Inc.; SPX Corporation; Ford Motor Company; Avon Products, Inc.; Morse Tec LLC; Pep Boys; and Honeywell International Inc. (Strunk Decl., Exs. C and D; Suppl. Strunk Decl., Ex. AA.) Five others – Barretts Minerals Inc.; Mineral Technologies Inc.; Pfizer Inc.; Specialty Minerals Inc.; and Illinois Tool Works Inc. – stated they would not oppose the motion. (Strunk Decl., Ex. D.) Not opposing the motion is not equivalent to stipulating to Connecticut’s jurisdiction. Other defendants filed statements that they would not contest Connecticut jurisdiction or stipulated to Connecticut’s jurisdiction, including Toyota Motor Sales, U.S.A., Inc.; Honda Motor Co., Inc.; Charles B. Chrystal Company; and BASF Catalysts LLC.

Following the reasoning of Hansen, in an asbestos case with a large number of defendants like this one, a court can stay a case to allow the other forum to determine whether all defendants are subject to that other forum’s jurisdiction. Under that reasoning, Connecticut may be a suitable form.

IV. Balancing of the Private and Public Interest Factors

“The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses.” (Strangvik, supra, 54 Cal.3d at p. 751.) “The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.” (Ibid.)

The Judicial Council comments to Code of Civil Procedures section 410.30 list the following factors to be considered in this balancing: (1) Where the residence or the principal place of business of each party is located; (2) Whether some or all of the parties regularly conduct business or other activities in this state; (3) Whether the situation, transaction or events out of which the action arose exists, occurred in, or had a substantial relationship to this state; (4) Whether any party would be substantially disadvantaged in having to try the action (a) in this state or (b) in the forum in which the moving party asserts it ought to be tried; (5) Whether any judgment entered in the action would be enforceable by process issued or other enforcement proceedings undertaken in this state; (6) Whether witnesses would be inconvenienced if the action were prosecuted (a) in this state or (b) in the forum in which the moving party asserts it ought to be prosecuted; (7) The relative expense to the parties of maintaining the action (a) in this state and (b) in the state in which the moving party asserts the action ought to be prosecuted; (8) Whether a view of premises by the trier of fact will or might be necessary or helpful in deciding the case; (9) Whether prosecution of the action will or may place a burden on the courts of this state which is unfair, inequitable or disproportionate in view of the relationship of the parties or of the cause of action to this state; (10) Whether the parties participating in the action, other than those of their own volition, have a relationship to this state which imposes upon them an obligation to participate in judicial proceedings in the courts of this state; (11) The interest, if any, of this state in providing a forum for some or all of the parties to the action; (12) The interest, if any, of this state in regulating the situation or conduct involved; and (13) The avoidance of multiplicity of actions and inconsistent adjudications. The court addresses each of these factors below.

(1) Plaintiffs live in Connecticut. Plaintiffs argue that three defendants have their principal places of business in California (either headquartered or incorporated in California). The locations of the other defendants are not addressed. This factor weighs in favor of Connecticut.

(2), (10) Plaintiffs allege all of the defendants regularly conduct business in California. Defendants do not contend otherwise. Four defendants filed motions to quash service of summons for lack of personal jurisdiction, but not all of those motions are based on the lack of business in the state. Most defendants did not file such a motion, suggesting they do regularly conduct business in California. Plaintiff states three defendants did not regularly conduct business in Connecticut. Defendants do not dispute that, but contend those three defendants are sham defendants. Defendant did not submit evidence that they are sham defendants. The defendants with their principal places of business in California, who directed their business activities to California, and who directed activities that are related to the claims here (i.e., the defendants over whom California has personal jurisdiction), have an obligation to participate in judicial proceedings in California. These factors weighs in favor of California.

(3) Elaine Herman has lived in Connecticut for over 37 years. She lived in California for 5-7 years. Her claims are based on using the asbestos-containing products or being exposed to asbestos in both locations. This factor weighs equally as the alleged exposure occurred in both locations.

(4) Plaintiffs could be substantially disadvantaged by having the action tried in Connecticut because that state does not have a preference statute. If Plaintiffs prevail on their preference motion, this factor would weigh in favor of Plaintiffs’ favor because Elaine Herman would be more likely able to participate in a trial in California than in Connecticut and the litigation in California could be conducted more expeditiously. While many witnesses are in Connecticut, Defendants would not be substantially disadvantaged by trying the action in California because often witnesses are amenable to testifying at depositions and trial remotely.

(5) The parties did not address this factor.

(6), (7) Elaine Herman’s medical providers, medical records and treatment are in Connecticut. Defendants argue that witnesses of her damages (apparently her family members) are in Connecticut. Plaintiffs presented evidence that their fact witness, Dawn Lorena Fleming, stated that she would not be inconvenienced if she has to testify at trial in California. (Fleming Decl. at 4.) Plaintiffs and Fleming are willing to travel to California but the medical providers cannot be compelled to travel to California to testify. The ease of access to sources of proof, the cost of obtaining witnesses, and obtaining the attendance of witnesses weigh in favor of Connecticut, although that weight is less these days when many out-of-state witnesses are willing to testify at depositions and trial remotely.

(8) This factor is not relevant.

(9), (11), (12) Defendants argue California has an interest in avoiding undue congestion of its courts, and Connecticut has an interest in applying its own laws and regulations to corporations’ conduct within its state involving its citizens. Plaintiffs argue much of Elaine Herman’s asbestos exposure occurred in California, California law will apply to this case, and California has a strong interest in punishing and deterring bad corporate conduct that harm its citizens. These factors weighs equally. Both states have an interest in providing a forum to Plaintiffs for harm occurring within each state, applying their laws to defendants that harmed Elaine Herman by exposing her to asbestos within each state, and in regulating asbestos exposure within the state.

(13) Plaintiffs argue that because some of the defendants are not subject to personal jurisdiction in Connecticut, there would need to be litigations in both California and Connecticut. Defendants argues the California defendants (Jafra, Pep Boys, and LA Rubber) are sham defendants, but they did not present evidence of that assertion. Defendants do not directly address this factor. This factor weighs in favor of California.

Because the analysis depends in part on the outcome of the motion for preference, the court CONTINUES hearing on this motion to March 21, 2023 at 9 a.m.

The moving parties are ordered to give notice.

Case Number: *******2540 Hearing Date: January 11, 2023 Dept: 15

[TENTATIVE] ORDER RE MOTIONS TO QUASH

Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. filed this action alleging Elaine Herman developed mesothelioma as a result of exposure to asbestos. Defendants IMI Fabi (USA), Inc. and IMI Fabi, LLC (“Defendants”) filed motions to quash service of summons for lack of personal jurisdiction.

A defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., 581, subd. (h).)

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., 410.10.) “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.) A state court may not exercise personal jurisdiction over a party under circumstances that would offend “traditional notions of fair play and substantial justice.” (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.)

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553.) Once facts showing minimum contacts with the forum state are established, the defendant has the burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Ibid.) “The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]” (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222.)

A defendant is subject to a state’s general jurisdiction if its contacts “are so continuance and systematic as to render [it] essentially at home in the forum State.” (Saimler AG v. Bauman (2014) 571 U.S. 117, 127.) A nonresident defendant may be subject to the specific jurisdiction of the forum “if the defendant has purposefully availed himself or herself of forum benefits [citation], and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’ [Citations.]” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446.) This test does not require a “causal relationship between the defendant’s in-state activity and the litigation.” (Ford Motor Co. v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017, 1026.) The “arise out” of standard “asks about causation,” but “relate to” does not. (Ibid.) “[W]hen a corporation has ‘continuously and deliberately exploited [a State’s] market, it must reasonably anticipate being haled into [that State’s] court[s]’ to defendant actions ‘based on’ products causing injury there.” (Id. at p. 1027.)

IMI Fabi (USA), Inc. states it is the holding company of IMI Fabi, LLC and never did any business in connection with California. (See Zuppini Decl. generally.) IMI Fabi, LLC states it is a West Virginia company and before 2005, it sold only industrial grade talc for non-cosmetic applications, and never did any business in connection with California. (See Woods Decl. generally.)

Plaintiffs do not contest that there is no general jurisdiction over Defendants. Instead, Plaintiffs argue without evidence that IMI Fabi LLC and IMI Fabi (USA) Inc supplied “defective asbestos-containing talc” that injured Herman. (Oppositions at p. 4.) Plaintiffs cite no evidence for these assertions and do not identify the talcum powder and cosmetic products for which Defendants allegedly provided the talc. Instead, Plaintiffs claim they need very broad discovery into all aspects of Defendants’ business in connection with California. Plaintiffs did not show the need for such broad discovery that goes far beyond information concerning Defendants’ supplying cosmetic and talcum powder grade talc for the brands of products used by Herman.

Before the court will allow jurisdictional discovery, Plaintiffs need to disclose to Defendants the specific brands of talcum powder and cosmetic products Herman alleges caused her injury and that contain Defendants’ talc. Plaintiffs then are to propose narrow discovery focused on Defendants’ connections with California concerning the talc used in those brands.

The court CONTINUES the hearing on the two motions to April 12, 2023 at 9:00 a.m., with supplemental opposition and reply briefs due on regular notice. Before January 20, 2023, the parties are to meet and confer about the specific brands of talcum powder and cosmetic products Herman alleges caused her injury and that contain Defendants’ talc.

The moving parties are to give notice.

Case Number: *******2540 Hearing Date: December 21, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTION TO QUASH

Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. filed this action alleging Elaine Herman developed mesothelioma as a result of exposure to asbestos. Defendant Girard Motors, Inc. filed a motion to quash service of summons for lack of personal jurisdiction.

A defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., 581, subd. (h).)

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., 410.10.) “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.) A state court may not exercise personal jurisdiction over a party under circumstances that would offend “traditional notions of fair play and substantial justice.” (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.)

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553.) Once facts showing minimum contacts with the forum state are established, the defendant has the burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Ibid.) “The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]” (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222.)

A defendant is subject to a state’s general jurisdiction if its contacts “are so continuance and systematic as to render [it] essentially at home in the forum State.” (Saimler AG v. Bauman (2014) 571 U.S. 117, 127.) A nonresident defendant may be subject to the specific jurisdiction of the forum “if the defendant has purposefully availed himself or herself of forum benefits [citation], and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’ [Citations.]” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446.) This test does not require a “causal relationship between the defendant’s in-state activity and the litigation.” (Ford Motor Co. v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017, 1026.) The “arise out” of standard “asks about causation,” but “relate to” does not. (Ibid.) “[W]hen a corporation has ‘continuously and deliberately exploited [a State’s] market, it must reasonably anticipate being haled into [that State’s] court[s]’ to defendant actions ‘based on’ products causing injury there.” (Id. at p. 1027.)

Defendant states it was incorporated in Connecticut and has its principal place of business there where it sells and repairs cars. (Motion at p. 4.) Plaintiffs did not present any evidence that Defendant has any location in California or is subject to California’s general jurisdiction.

Defendant argues there is no specific jurisdiction because Plaintiffs live in Connecticut, and Elaine Herman was allegedly exposed to Defendant’s asbestos when her father worked at Defendant’s business in Connecticut. (Motion at p. 4.)

The complaint alleges Defendant is “a Premise Defendant, for the Gerard Motors facility in Groton, Connecticut”). (Complaint, 3.) It alleges Elaine Herman’s father “was exposed to asbestos products and dust from asbestos products due to environmental exposure from Defendant[] Girard Motors, Inc. . . . which he then brought home on his work clothes, in his vehicle and on his body including his hair, which resulted in Plaintiff Elaine Adelia Hickey Herman’s exposure to asbestos.” (Complaint, 36.) This occurred in the 1960s in Groton, Connecticut. (Complaint, Ex. A at p. 55.) Based on these allegations, the premises liability claim against Defendant is based solely on events taking place in Connecticut when both Elaine Herman and her father lived in that state. Plaintiffs present no evidence that Defendant has any connections to California.

Plaintiffs failed to satisfy their initial burden of demonstrating facts justifying the exercise of jurisdiction. Plaintiffs ask for jurisdictional discovery but did not show that jurisdictional discovery will likely lead to evidence establishing jurisdiction, especially given Plaintiffs’ allegations that the exposure caused by Defendant occurred in Connecticut.

Therefore the motion is GRANTED, and the complaint against Girard Motors, Inc. is DISMISSSED without prejudice pursuant to Code of Civil Procedure section 581, subdivision (h).

The moving party to give notice.

Case Number: *******2540 Hearing Date: December 13, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTIONS TO QUASH

Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. filed this action alleging Elaine Herman developed mesothelioma as a result of exposure to asbestos. Defendants IMI Fabi (USA), Inc., IMI Fabi (Diana) and IMI Fabi, LLC (“Defendants”) filed motions to quash service of summons on them for lack of personal jurisdiction.

A defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., 581, subd. (h).)

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., 410.10.) “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.) A state court may not exercise personal jurisdiction over a party under circumstances that would offend “traditional notions of fair play and substantial justice.” (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.)

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553.) Once facts showing minimum contacts with the forum state are established, the defendant has the burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Ibid.) “The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]” (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222.)

A defendant is subject to a state’s general jurisdiction if its contacts “are so continuance and systematic as to render [it] essentially at home in the forum State.” (Saimler AG v. Bauman (2014) 571 U.S. 117, 127.) A nonresident defendant may be subject to the specific jurisdiction of the forum “if the defendant has purposefully availed himself or herself of forum benefits [citation], and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’ [Citations.]” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446.) This test does not require a “causal relationship between the defendant’s in-state activity and the litigation.” (Ford Motor Co. v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017, 1026.) The “arise out” of standard “asks about causation,” but “relate to” does not. (Ibid.) “[W]hen a corporation has ‘continuously and deliberately exploited [a State’s] market, it must reasonably anticipate being haled into [that State’s] court[s]’ to defendant actions ‘based on’ products causing injury there.” (Id. at p. 1027.)

IMI Fabi (USA), Inc. states it is the holding company of IMI Fabi, LLC and never did any business in connection with California. (See Zuppini Decl. generally.) IMI Fabi (Diana) states it sold talc for cosmetic, personal care, pharmaceutical, and food industries and never did any business in connection with California. (See Brown Decl. generally.) IMI Fabi, LLC states that before 2005, it sold only industrial grade talc for non-cosmetic applications and never did any business in connection with California. (See Brown Decl. generally.)

Plaintiffs do not contest that there is no general jurisdiction over Defendants. Instead, Plaintiffs argue Defendants each “supplied defective asbestos-containing talc that was used to manufacture the talcum powder and cosmetic products she used while living in California. (Oppositions at p. 2.) Plaintiffs cite no evidence for this assertion and do not identify the talcum powder and cosmetic products for which Defendants allegedly provided the talc. Plaintiffs failed to satisfy their initial burden of demonstrating facts justifying the exercise of jurisdiction. Plaintiffs ask for jurisdictional discovery, but having failed to present any evidence that Defendants sold any talc that was used in any product at issue here, and indeed having failed even to identify the talcum powder specific products at issue, Plaintiffs have not shown that jurisdictional discovery will likely lead to evidence establishing jurisdiction.

Therefore the motions are GRANTED, and the complaint against IMI Fabi (USA), Inc., IMI Fabi (Diana) and IMI Fabi, LLC is DISMISSSED without prejudice pursuant to Code of Civil Procedure section 581, subdivision (h).

The moving parties are to give notice.

Case Number: *******2540 Hearing Date: December 8, 2022 Dept: 15

[TENTATIVE] ORDER RE DEMURRERS AND MOTIONS TO STRIKE

I. DEMURRERS

On May 5, 2022, Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. (collectively “Plaintiffs”) filed this action alleging causes of action for negligence, strict liability, premises liability, false representation under Restatement of Torts section 402-B, intentional torts under Civil Code sections 1708 through 1710, conspiracy, and loss of consortium.

Defendants American Honda Motor Co., Inc. and Toyota Motor Sales, U.S.A., Inc. (collectively, “Defendants”) each filed a demurrer to the fourth and fifth causes of action for false representation and intentional torts. Each also filed a motion to strike the request for punitive damages. Because the two demurrers and motions to strike are almost identical, the court’s analysis and rulings below apply equally to Honda and Toyota.

As an initial matter, the court notes Plaintiffs named 48 defendants. If each defendant filed a demurrer and motion to strike, the court would have 96 pleading challenges to decide in this case alone. Unless a demurrer disposes of all claims against a particular defendant, multiple demurrers and motions to strike targeting only portions of claims are not feasible in the asbestos court. With hundreds of cases involving dozens of defendants coordinated in this court, multiple demurrers and motions to strike with the attendant multiple rounds of amended pleadings would place unnecessary burdens on the court, would delay resolution and increase costs, and would not contribute to effective decision-making. The case management orders are designed to allow form pleadings with preliminary fact sheets that provide details specific to the plaintiff and defendants in a particular case.

A. Fourth Cause of Action – False Representation

Defendants argue Plaintiffs did not adequately allege the fourth cause of action for false representation under section 402-B of the Restatement of Torts because the complaint is not sufficiently specific.

Section 402-B establishes “liability for injuries caused by justifiable reliance on false advertising.” (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1750.) Under this section “ ‘[o]ne engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though [ ] (a) it is not made fraudulently or negligently, and [ ] (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.’ [Citation.]” (Id. at pp. 1750-1751.) “The rule ‘is one of strict liability for physical harm to the consumer, resulting from a misrepresentation of the character or quality of the chattel sold, even though the misrepresentation is an innocent one, and not made fraudulently or negligently.’ [Citation.]” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 114.)

Defendants contend the complaint does not allege Defendants made an affirmative misrepresentation upon which Plaintiffs relied. (Demurrer at pp. 3-4.) As expressed in Westlye, a direct statement to the end use of the product is not necessary; a public misrepresentation is enough. Here, the complaint alleges that when Defendants manufactured, labeled, packaged, advertised, distributed, and sold (among other actions) the allegedly unsafe product, they expressly represented to the general public, purchasers and users that the product was safe. (Complaint, 46.) When the cause of action “is based on advertisements and a published technical manual distributed to dealers,” pleading requirements of specificity do not apply.” (Westlye, supra, 17 Cal.App.4th at p. 1751, n.25.) According to the complaint, Defendants were each involved in advertising the product as safe. (Complaint, 46.) This is sufficient to allege an express material misrepresentation under section 402-B.

Defendants also argue the complaint does not allege specific facts establishing that Defendants were in the chain of distribution or manufactured any particular product. (Demurrer at pp. 3-4.) The preliminary fact sheet does not identify the Product at Issue for Defendants. Instead, in that column, Plaintiffs stated “Friction products” for Honda and “Automotive parts” for Toyota. These identifications are vague. A complete preliminary fact sheet is important because it provides the information about the products at issue. The August 11, 2014 Case Management Order requires a plaintiff to file and serve the preliminary fact sheet along with the filing of the complaint and to “fully respond to each question and provide all of the information available to the plaintiff that is sought by each question.” If a plaintiff does not know the information sought by the question, “plaintiff should identify what part of the question plaintiff cannot answer.” (Order at pp. 2-3.) Plaintiffs did not comply with these requirements in listing the Product at Issue.

Defendants then argue Plaintiffs do not specifically allege Plaintiffs reasonably relied on any representation or that if the omitted information had been disclosed, Plaintiffs would have acted differently. (Demurrer at p. 4.) These are not necessary elements under section 402-B of the Restatement of Torts. The “‘reliance need not necessarily be that of the consumer who is injured. It may be that of the ultimate purchaser of the chattel . . . who because of such reliance passes it on to the consumer who is in fact injured, but is ignorant of the misrepresentation.’ [Citation.]” (Westlye, supra, 17 Cal.App.4th at p. 1751.) Thus, it is not necessary that Defendants intended Plaintiffs to rely on any representation if Plaintiffs were not the purchaser of the products. It is not necessary that Plaintiffs relied on a representation of safety. A purchaser’s reliance on the representation is sufficient. Here, the complaint alleges the purchasers of the product relied on representations of safety. (Complaint, 47.) This is enough at this stage in the litigation, especially because Plaintiffs do not need to allege that they justifiably relied to state a cause of action under section 402-B. A plaintiff cannot be expected to know at the beginning of the case exactly how others relied on the representations. Discovery can develop further evidence of justifiable reliance.

The demurrer is overruled. However, within ten days, Plaintiffs are to file and serve an amended preliminary fact sheet identifying the specific product or products at issue manufactured, sold or distributed by Defendants. If Plaintiffs do not know, they are to state on the preliminary fact sheet that they do not know.

B. Fifth Cause of Action – Intentional Tort

The fifth cause of action alleges torts under Civil Code sections 1708, 1709, and 1710. Section 1708 states generally that a person is to abstain from injuring another person. That does not create a cause of action. Sections 1709 and 1710 state that a person may be liable for damage caused by willful deceit, defined as including “[t]he suggestion, as a fact, of that which is not true, by one who does not believe it to be true,” [t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true,” “[t]he suppression of a fact, by one who is bound to disclose it, or who give information of other facts which are likely to mislead for want of communication of that fact,” and “[a] promise, made without any intention of performing it.”

Defendants argue the complaint does not allege reliance or that Plaintiffs would have acted differently if they had known of the concealed information. (Demurrer at pp. 5-6.) The complaint alleges Plaintiffs or others relied upon statements that the products were safe. (Complaint, 47.) More detail about what Plaintiffs or others would have done if they had known the products allegedly contained asbestos and whether they would have used those products can be developed in discovery.

Defendants contend the complaint fails to allege with specificity that Defendants intended to deceive Plaintiffs and acted intentionally to conceal facts from Plaintiffs . (Demurrer at p. 6.) In Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, the California Supreme Court explained, “Less specificity is required when ‘it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy . . . .” (Id. at p. 217.) Defendants, not Plaintiffs, have information about Defendants’ intent.

The demurrers are OVERRULED. Within ten days, Plaintiffs are to file and serve an amended preliminary fact sheet identifying the specific product or products at issue manufactured, sold or distributed by Defendants. If Plaintiffs do not know, they are to state on the preliminary fact sheet that they do not know.

II. MOTIONS TO STRIKE

Defendants move to strike the request for punitive damages on the grounds that Plaintiffs have not sufficiently alleged facts supporting an award of punitive damages, including because Plaintiffs do not identify the asbestos-containing products obtained from Defendants. As discussed above, Plaintiffs need to amend the preliminary fact sheet to identify the specific product or products at issue manufactured, sold or distributed by Defendants.

Otherwise, more details can be developed in discovery. If Plaintiffs are able to prove the fraud or strict liability causes of action, they have a basis for punitive damages. And Defendants can challenge the claims for punitive damages in motions for summary adjudication.

The motions to strike are DENIED. Within ten days, Plaintiffs are to file and serve an amended preliminary fact sheet identifying the specific product or products at issue manufactured, sold or distributed by Defendants. If Plaintiffs do not know, they are to state on the preliminary fact sheet that they do not know.

The moving party is to give notice.

Case Number: *******2540 Hearing Date: December 7, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTIONS TO QUASH

Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. filed this action alleging Elaine Herman developed mesothelioma as a result of exposure to asbestos. Defendants Brenntag Specialties, LLC and Brenntag North America, Inc. (“Defendants”) filed motions to quash service of summons on them for lack of personal jurisdiction.

A defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., 581, subd. (h).)

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., 410.10.) “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.) A state court may not exercise personal jurisdiction over a party under circumstances that would offend “traditional notions of fair play and substantial justice.” (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.)

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553.) Once facts showing minimum contacts with the forum state are established, the defendant has the burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Ibid.) “The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]” (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222.)

A defendant is subject to a state’s general jurisdiction if its contacts “are so continuance and systematic as to render [it] essentially at home in the forum State.” (Saimler AG v. Bauman (2014) 571 U.S. 117, 127.) A nonresident defendant may be subject to the specific jurisdiction of the forum “if the defendant has purposefully availed himself or herself of forum benefits [citation], and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’ [Citations.]” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446.) This test does not require a “causal relationship between the defendant’s in-state activity and the litigation.” (Ford Motor Co. v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017, 1026.) The “arise out” of standard “asks about causation,” but “relate to” does not. (Ibid.) “[W]hen a corporation has ‘continuously and deliberately exploited [a State’s] market, it must reasonably anticipate being haled into [that State’s] court[s]’ to defendant actions ‘based on’ products causing injury there.” (Id. at p. 1027.)

Plaintiffs do not contest that there is no general jurisdiction over Defendants.

Defendants assert there is no evidence that Plaintiffs’ injuries were caused by any product distribute or sold by Defendants in California and no connection to California. (Motions at p. 3.)

Plaintiffs allege Defendant Brenntag Specialties LLC supplied asbestos-containing talc used to make the talcum powder products Herman used. (Opposition at p. 2.) Plaintiffs submitted no evidence in support of this assertion. Plaintiffs do not even identify the products Herman used that allegedly contained Brenntag Specialties LLC’s talc. Plaintiffs also assert that Defendant Brenntag Specialties LLC is “the admitted successor-in-interest to Brenntag Specialties, Inc., Mineral Pigment Solutions, Inc.; and Whittaker, Clark & Daniel, BNA. (Opposition at p. 3.) Plaintiffs cite no evidence of this. In fact, Defendant Brenntag Specialties LLC contends that it was incorrectly sued as successor-in-interest to Whittaker. (See Motion caption page.) Plaintiffs present no evidence that Defendant Brenntag Specialties, LLC assumed liability for Whittaker’s talc-related business generally or for Whittaker’s prior sales of talc to whomever made the unspecified products at issue here.

Defendant Brenntag North America, Inc. also argues there is no evidence Plaintiffs’ injuries were caused by any product manufactured, distributed or sold by Brenntag North America, Inc. or that it has any connection to California related to this case. (Motion at p. 3.)

Plaintiffs argue they provided prima facie evidence that Brenntag North America, Inc. supplied asbestos-containing talc that injured Herman. (Opposition at p. 3.) Plaintiffs provided no such evidence with their opposition and did not even specify the talcum products Herman used for which Brenntag North America, Inc. allegedly provided the talc. Plaintiffs also allege that Brenntag North America, Inc. is the successor-in-interest to Brenntag Specialties, Inc., Mineral Pigment Solutions, Inc.; and Whittaker, Clark & Daniel, BNA, but provides no evidence of that. (Opposition at p. 3.) In fact, Defendant Brenntag North America, Inc. contends that it was incorrectly sued as successor-in -interest to Mineral Pigment Solutions, Inc. and Whittaker. (See Motion caption page.)

Plaintiffs failed to satisfy their initial burden of demonstrating facts justifying the exercise of jurisdiction. Plaintiffs ask for jurisdictional discovery, but having failed to present any evidence that Defendants sold any talc that was used in any product at issue here, and indeed having failed even to identify the talcum powder specific products at issue, Plaintiffs have not shown that jurisdictional discovery will likely lead to evidence establishing jurisdiction.

Therefore the motions are GRANTED, and the complaint against Brenntag Specialties LLC and Brenntag North America, Inc. is DISMISSSED without prejudice pursuant to Code of Civil Procedure section 581, subdivision (h).

The moving parties are to give notice.

Case Number: *******2540 Hearing Date: December 6, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTION TO QUASH

Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman filed this case against Defendant Bristol Myers Squibb Company, among others, alleging Elaine Herman was injured as a result of exposure to asbestos-containing products, including Jean Nate branded talcum powder. On November 7, 2022, Defendant filed a motion to dismiss for lack of personal jurisdiction.

A defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., 581, subd. (h).)

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., 410.10.) “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.) A state court may not exercise personal jurisdiction over a party under circumstances that would offend “traditional notions of fair play and substantial justice.” (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.)

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553.) Once facts showing minimum contacts with the forum state are established, the defendant has the burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Ibid.) “The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]” (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222.)

A defendant is subject to a state’s general jurisdiction if its contacts “are so continuance and systematic as to render [it] essentially at home in the forum State.” (Saimler AG v. Bauman (2014) 571 U.S. 117, 127.) A nonresident defendant may be subject to the specific jurisdiction of the forum “if the defendant has purposefully availed himself or herself of forum benefits [citation], and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’ [Citations.]” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446.) This test does not require a “causal relationship between the defendant’s in-state activity and the litigation.” (Ford Motor Co. v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017, 1026.) The “arise out” of standard “asks about causation,” but “relate to” does not. (Ibid.) “[W]hen a corporation has ‘continuously and deliberately exploited [a State’s] market, it must reasonably anticipate being haled into [that State’s] court[s]’ to defendant actions ‘based on’ products causing injury there.” (Id. at p. 1027.)

Plaintiffs do not contest that there is no general jurisdiction over Defendant.

Defendant argues there is no specific jurisdiction concerning Jean Nate products because Defendant did not develop, manufacture, market, advertise, or distribute those products. (Motion at p. 1.) Defendant submits evidence that Charles of the Ritz, a separate company, made Jean Nate products up to 1971. In 1971, Squibb Beech-Nut, Inc. acquired Charles of the Ritz, and Squibb Beech-Nut, Inc. changed its name to Squibb Corporation. Squibb Corporation owned the stock of Charles of the Ritz but operated it as an independent subsidiary. In 1986, Squibb Corporation sold Charles of the Ritz to Yves Saint Laurent S.A. In 1989, Bristol-Myers Company merged with Squibb Corporation to form Defendant. (See Scott Decl.; Ambrosio Certification.) Defendant argues that the fact that Defendant’s predecessor was the parent company of Charles of the Ritz does not create jurisdiction because generally jurisdiction over a subsidiary cannot be imputed to a parent. (Motion at p. 6.) Plaintiffs does not deny the general rule but instead argue specific jurisdiction exists because Charles of the Ritz was Defendant’s alter ego and agent. (Opposition at 4.)

First, Plaintiffs contend this case satisfies the standard in Anglo Irish Bank Corp. v. Superior Court (2008) 165 Cal.App.4th 969. That case explained that specific jurisdiction over a parent corporation can be established “based on the parent’s ‘manipulation’ and control of its California subsidiary to the detriment of the subsidiary’s creditors.” (Anglo Irish Bank, supra, 165 Cal.App.4th at p. 982.) “[A] parent corporation’s purposefully causing its subsidiary to engage in forum contacts may constitute purposeful availment by the parent even if the separateness of the corporations is maintained and alter ego is not established.” (Ibid.) Thus, [t]he proper jurisdictional question is not whether the defendant can be liable for the acts of another person or entity under state substantive law, but whether the defendant has purposefully directed its activities at the forum state by causing a separate person or entity to engage in forum contacts.” (Id. at p. 983.)

Plaintiffs argue, “Basic logic confirms that Charles of the Ritz would not have sold Jean Nate products in California had BMS –as its parent – not directed, instructed, approved, ratified, or otherwise condoned such activity.” (Opposition at p. 5.) However, that logic would do away with the general rule that a parent is not subject to specific jurisdiction merely because its subsidiary is. Entering the California market through a subsidiary is not enough to create jurisdiction over the parent. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 552.) Plaintiffs do not present evidence that Defendant purposefully directed its activities at California by causing Charles of the Ritz to engage in business in California.

Second, Plaintiffs argue that Charles of the Ritz was the agent of Defendant because Defendant exercised control over Charles of the Ritz “so pervasive and continual that the [Charles of the Ritz] may be considered an agent or instrumentality of [Defendant].” (Opposition at p. 5.) Plaintiffs do not present evidence of this. Defendant presents some evidence that Charles of the Ritz remained separate, as it had its own officers, executive officers, and facilities. (Scott Decl., 6-7.)

Third, Plaintiffs argue that personal jurisdiction exists if the parent uses the subsidiary to do what the parent otherwise would have done. (Opposition at p. 5.) Plaintiffs cite F. Hoffman-La Roche v. Superior Court (2005) 130 Cal.App.4th 782 for this rule. This may occur where the local company “performs functions in furtherance of the foreign company’s, as opposed to its own, business.” (Id. at pp. 798-799.) Plaintiffs assert Defendant admitted that Charles of the Ritz “was merely doing what BMS would have done as part of its own consumer product operations. BMS only used Charles of the Ritz in order to create the impression of an exclusive brand of product . . . .” (Opposition at p. 5.) Plaintiffs submit no evidence in support of this assertion.

In sum, Plaintiffs did not present evidence supporting their assertion that the separateness of the parent/subsidiary relationship should be disregarded here. Plaintiffs request jurisdictional discovery. The court will continue the hearing on this motion to allow jurisdictional discovery on Plaintiffs’ contentions that Defendant’s predecessor controlled or purposely directed Charles of the Ritz’ activities in California, Defendant’s predecessor exercised pervasive and continual control over Charles of the Ritz, and that Charles of the Ritz was performing functions in furtherance of Defendant’s predecessor’s business.

The motion is CONTINUED to April 12, 2023 at 9 a.m. Plaintiffs may file a supplemental opposition nine court days before that date, and Defendant may file a supplemental reply five court days before that date.

The moving party is to give notice.