This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:36:34 (UTC).

MARK ANTHONY RAMOS ET AL VS ANZO NOBEL COATINGS INC ET AL

Case Summary

On 08/11/2017 MARK ANTHONY RAMOS filed an Other - Environment lawsuit against ANZO NOBEL COATINGS INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MALCOLM MACKEY, DEBRE K. WEINTRAUB and GREGORY KEOSIAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2215

  • Filing Date:

    08/11/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Environment

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MALCOLM MACKEY

DEBRE K. WEINTRAUB

GREGORY KEOSIAN

 

Party Details

Plaintiffs and Petitioners

RAMOS SYLVIA NUNEZ

RAMOS MARK ANTHONY

Defendants and Respondents

GREEN PRODUCTS COMPANY

BYK-CHEMIE USA

RAYBO CHEMICAL COMPANY

ASHLAND LLC

COLUMBIA PAINT CORP

BYK USA INC

AKZO NOBEL COATINGS INC

SUNNYSIDE CORPORATION

PPG INDUSTRIES INC.

DOES 1 THROUGH 200

PACKAGING SERVICE CO.

W.M. BARR & COMPANY INC.

NCH CORPORATION

RUST-OLEUM CORPORATION

SANSHER CORPORATION

MAGNUM INTERNATIONAL INC. [DOE 18]

ECMO CHEMICAL DISTRIBUTORS INC. - DOE 5

CHEMICAL SOLVENTS INC. [DOE 15]

25 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

METZGER RAPHAEL ESQ.

Defendant and Respondent Attorneys

WYMAN SAMUEL A. ESQ.

TOBIN THOMAS J. ESQ.

SULLIVAN KAREN M. ESQ.

COLLEEN O'BRIEN

SIPPRELLE KEITH A. ESQ.

CARISON LINDSAY G. ESQ.

QUINONES JOSHUA A. ESQ.

GOLDBERG A. SCOTT ESQ.

HURRELL THOMAS C. ESQ.

CLEELAND BRUCE ESQ.

CARLSON LINDSAY G. ESQ.

SAYRE MARK DAVID

PATTERSON CHRISTOPHER SEAN

O'BRIEN COLLEEN

LEWIS BRISBOIS BISGAARD & SMITH LLP

TUCKER ELLIS LLP

BARG COFFIN LEWIS & TRAPP LLP

MURCHISON & CUMMING LAW OFFICES OF

DEHART KRISTIN REYNA

9 More Attorneys Available

 

Court Documents

Declaration

6/11/2019: Declaration

Request for Dismissal

6/19/2019: Request for Dismissal

Notice of Entry of Dismissal and Proof of Service

6/20/2019: Notice of Entry of Dismissal and Proof of Service

AMENDMENT TO COMPLAINT

3/15/2018: AMENDMENT TO COMPLAINT

AMENDMENT TO COMPLAINT

3/22/2018: AMENDMENT TO COMPLAINT

AMENDMENT TO COMPLAINT

3/22/2018: AMENDMENT TO COMPLAINT

PROOF OF SERVICE SUMMONS

4/10/2018: PROOF OF SERVICE SUMMONS

PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S FIRST SET OF JOINT REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED TO DEFENDANT PPG INDUSTRIES, INC.; DECLARATION OF

4/11/2018: PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S FIRST SET OF JOINT REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED TO DEFENDANT PPG INDUSTRIES, INC.; DECLARATION OF

AMENDMENT TO COMPLAINT

4/23/2018: AMENDMENT TO COMPLAINT

Minute Order

5/2/2018: Minute Order

SPECIALLY APPEARING DEFENDANT UNIVAR USA INC.'S REPLY TO OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT FOR LACK OF PERSONAL JURISDICTION (C.C.P. 418.10 (A)(1)); DECLARATION OF ANGELA

6/4/2018: SPECIALLY APPEARING DEFENDANT UNIVAR USA INC.'S REPLY TO OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT FOR LACK OF PERSONAL JURISDICTION (C.C.P. 418.10 (A)(1)); DECLARATION OF ANGELA

SPECIALLY APPEARING DEFENDANT CHEMICAL SOLVENTS, INC.'S NOTICE OF CONTINUANCE OF MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION

6/27/2018: SPECIALLY APPEARING DEFENDANT CHEMICAL SOLVENTS, INC.'S NOTICE OF CONTINUANCE OF MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION

NOTICE OF RULING ON SPECIALLY APPEARING DEFENDANT BRENNTAG GREAT LAKES LLC'S MOTION TO QUASH

6/28/2018: NOTICE OF RULING ON SPECIALLY APPEARING DEFENDANT BRENNTAG GREAT LAKES LLC'S MOTION TO QUASH

SPECIALLY APPEARING DEFENDANT UNIVAR USA INC.'S EX PARTE APPLICATION FOR AN ORDER EXTENDING THE TIME TO FILE A WRIT PETITION FROM THE DENIAL OF ITS MOTION TO QUASH (CCP ?418.10 (C); ETC

7/12/2018: SPECIALLY APPEARING DEFENDANT UNIVAR USA INC.'S EX PARTE APPLICATION FOR AN ORDER EXTENDING THE TIME TO FILE A WRIT PETITION FROM THE DENIAL OF ITS MOTION TO QUASH (CCP ?418.10 (C); ETC

Answer

10/17/2018: Answer

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT BYK USA, INC'S DEMURRER TO PLAINTIFFS' COMPLAINT

1/2/2018: PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT BYK USA, INC'S DEMURRER TO PLAINTIFFS' COMPLAINT

PLAINTIFFS' COUNTER STATEMENT TO KEITH A. SIPPRELLE'S DECLARATION RE: NONCOMPLIANCE; DECLARATION OF KIMBERLY A. MILLER IN SUPPORT THEREOF

10/13/2017: PLAINTIFFS' COUNTER STATEMENT TO KEITH A. SIPPRELLE'S DECLARATION RE: NONCOMPLIANCE; DECLARATION OF KIMBERLY A. MILLER IN SUPPORT THEREOF

NOTICE OF ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE OF SUMMONS AND COMPLAINT

9/6/2017: NOTICE OF ORDER TO SHOW CAUSE RE FAILURE TO FILE PROOF OF SERVICE OF SUMMONS AND COMPLAINT

305 More Documents Available

 

Docket Entries

  • 05/05/2020
  • Hearingat 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 04/27/2020
  • Hearingat 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 02/27/2020
  • Hearingat 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 09/13/2019
  • Hearingat 11:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Informal Discovery Conference (IDC)

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  • 09/05/2019
  • Hearingat 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 08/01/2019
  • DocketRequest for Dismissal; Filed by MARK ANTHONY RAMOS (Plaintiff); SYLVIA NUNEZ RAMOS (Plaintiff)

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  • 07/11/2019
  • DocketOrder ([Proposed] Order Granting BYK USA, Inc.'s Motion for Determination of Good Faith Settlement); Filed by BYK USA, INC (Defendant)

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  • 06/26/2019
  • Docketat 09:00 AM in Department 61; Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) - Held

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  • 06/26/2019
  • DocketNotice of Ruling (Ruling Re Defendant BYK USA, Inc.'s Motion for Determination of Good Faith Settlement); Filed by Clerk

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  • 06/26/2019
  • DocketMinute Order ( (Hearing on Motion for Determination of Good Faith Settlement ...)); Filed by Clerk

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561 More Docket Entries
  • 08/18/2017
  • DocketMinute order entered: 2017-08-18 00:00:00; Filed by Clerk

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  • 08/18/2017
  • DocketMinute Order

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  • 08/17/2017
  • Docketat 2:00 PM in Department 55; Unknown Event Type - Held - Motion Granted

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  • 08/17/2017
  • DocketMinute Order

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  • 08/17/2017
  • DocketMinute order entered: 2017-08-17 00:00:00; Filed by Clerk

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  • 08/11/2017
  • DocketCOMPLAINT FOR TOXIC INJURIES ASSERTING CAUSES OF ACTION FOR: (1) NEGLIGENCE; ETC

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  • 08/11/2017
  • DocketComplaint; Filed by MARK ANTHONY RAMOS (Plaintiff); SYLVIA NUNEZ RAMOS (Plaintiff)

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  • 08/11/2017
  • DocketSUMMONS

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  • 08/11/2017
  • DocketCIVIL DEPOSIT

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  • 08/11/2017
  • DocketPLAINTIFFS' NOTICE OF POSTING OF JURY FEES

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Tentative Rulings

Case Number: BC672215    Hearing Date: September 10, 2020    Dept: 61

Defendant Inovyn Americas, Inc.’s Motion for Summary Judgment or Adjudication is GRANTED as to the prayer for punitive damages, but otherwise DENIED.

Defendant PPG Industries, Inc., as successor by acquisition to Homax Products, Inc.’s Motion for Summary Adjudication is GRANTED as to the second, fourth, and fifth causes of action, as well as the prayer for punitive damages.

  1. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

  1. INOVYN MOTION

Inovyn moves for summary judgment on the grounds that Plaintiffs cannot prove that Ramos was exposed to Inovyn’s methylene chloride. Specifically, Inovyn argues that the only evidence of exposure comes from material safety data sheets (MSDS) from defendant Packaging Services, Inc. (Packaging), when such MSDSs are not probative of the existence of a sales relationship. (Motion at pp. 5–6.)

A plaintiff in a toxic torts case “must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) Thus if no triable issues of fact exist as to whether Ramos was exposed to Inovyn chemicals, then no claim against Inovyn may lie. (See Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 104.)

The court disagrees with Inovyn’s argument. A plausible inference drawn from Packaging’s and NCH’s possession of this MSDSs is that Inovyn supplied these other entities with the product described on the sheet, as it is required to do under federal law. (See 29 CFR § 1910.1200, subd. (b)(1) [“This section requires chemical manufacturers or importers to classify the hazards of chemicals which they produce or import, and all employers to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, safety data sheets, and information and training. In addition, this section requires distributors to transmit the required information to employers.”].) Thus Packaging’s possession of MSDSs for methylene chloride from Inovyn is sufficient to avoid summary judgment on Inovyn’s exposure argument.

Inovyn also argues that Plaintiffs’ prayer for punitive damages fails because they identified no evidence in support of the contention that Inoyvn acted with malice, oppression, or fraud. (Motion at p. 7.) Inoyvn specifically identifies Plaintiffs’ response to Special Interrogatory No. 13, which asked Plaintiffs to articulate all facts supporting their claim for fraudulent concealment against Inovyn. (Motion Exh. 5.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

  1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

  2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

  3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

The court agrees with Inovyn’s characterization of the interrogatory response as conclusory. In it, Plaintiffs maintain that Inovyn’s products are toxic and that Inovyn was aware of its toxicity, but there are no facts stated to support the conclusory averments of Inovyn’s awareness. (Motion Exh. 5.)

Plaintiffs argue that their prayer for punitive damages attaches not merely to their fraudulent concealment claim but to their failure to warn and design defect claims. (Opposition at pp. 15–16.) Yet the factual allegations underlying these prayers for punitive damages are functionally identical to those underlying the punitive damages sought in relation to concealment: that Inoyvn knew of, and failed to disclose, the hazards involved in its products. (Complaint ¶¶ 60, 75.)

Plaintiffs further argue that numerous studies showed the harmful effects of methylene chloride. (Opposition at pp. 18–20.) But no showing is offered as to Inovyn’s actual awareness of the studies at issue, or of the necessity of revised warnings on their products as a result.

Accordingly, while the motion for summary judgment is DENIED, the motion for summary adjudication of Plaintiffs’ claim for punitive damages against Inovyn is GRANTED.

  1. PPG/HOMAX MOTION

PPG moves for summary adjudication of the second and fourth causes of action for failure to warn and fraudulent concealment on the grounds that Plaintiffs cannot prove causation because he did not read the labels that existed on PPG’s products. (Motion at pp. 14–15.) PPG also moves for adjudication of the fifth cause of action for breach of implied warranties, on the grounds that implied warranty claims for products liability have been superseded by the doctrine of strict liability. (Motion at pp. 15–16.) PPG finally moves for adjudication of Plaintiffs’ prayer for punitive damages, on the grounds that Plaintiffs cannot prove that any managing agent ratified the conduct at issue. (Motion at pp. 16–19.)

  1. Causation

“To be liable in California, even under a strict liability theory, the plaintiff must prove that the defendant's failure to warn was a substantial factor in causing his or her injury. The natural corollary to this requirement is that a defendant is not liable to a plaintiff if the injury would have occurred even if the defendant had issued adequate warnings.” (Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1604.) This means that a plaintiff in a failure-to-warn case must prove “that if the [defendant] had issued a warning, they would have acquired the knowledge they lacked.” (Id. at p. 1597.)

Additionally, to prevail on a fraudulent concealment claim, the omission “must be actually false, known to be false by the perpetrator and reasonably relied upon by a victim who incurs damages.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 252.)

PPG argues that no inference of causation can be drawn for either cause of action because when questioned about his exposure to PPG products Ramos testified that he never read any warning label or instructions for the same. (Motion at p. 15; Exh. G at pp. 632–644.) PPG points to the case Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 555, in which the court held that a failure to warn claim could not be maintained based on a product’s English-language labeling when the Spanish-speaking woman who administered the product “neither read nor obtained translation of the product labeling,” leading the court to conclude that there was “no conceivable causal connection between the representations or omissions that accompanied the product and plaintiff's injury.” (Id. at p. 555.) A similar claim was rejected for similar reasons where a prescribing physician had not relied on defective product labeling when making prescriptions: “[“There can be no proximate cause where, as in this case, the prescribing physician did not read or rely upon the allegedly inadequate warnings promulgated by a defendant about a product.” (Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 112.)

Plaintiffs respond that Ramos’s testimony about how he did not read warnings or instructions for PPG’s products does not establish that warnings or instructions were actually given. (Motion at pp. 5–6.) But this misconstrues the argument, which is not addressed to the adequacy of the warnings that PPG provided but the likelihood that Ramos would have attended to an adequate warning. PPG’s evidence is adequate to satisfy its burden on this point, and Plaintiffs do not produce substantial responsive evidence to contest it.

The motion is therefore GRANTED as to second and fourth causes of action.

  1. Implied Warranty

PPG argues that no implied warranty claim can proceed because the claim is redundant of Plaintiffs’ strict products liability claims. (Motion at pp. 15–16.) PPG relies on the case Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, in which the court stated that “the theory of strict liability in tort had virtually superseded the concept of implied warranties,” and that “the rules defining and governing warranties cannot properly be invoked to govern the manufacturer's liability to those injured by its defective products unless those rules also serve the purposes for which such liability is imposed.” (Id. at p. 432.) The court agrees with PPG that this language effectively indicates the redundancy of Plaintiffs’ implied warranty claim. Plaintiffs in opposition offer no argument on this point.

The motion is GRANTED as to the fifth cause of action.

  1. Punitive Damages

PPG argues that Plaintiffs’ prayer for punitive damages must fail because the discovery responses propounded to support the claim were factually devoid. (Motion at pp. 16–17.)

The court agrees with PPG. Much as with Inovyn, the facts that Plaintiffs articulate in support of their punitive damages claim speak only in the broadest terms about PPG’s awareness of the hazards of its products and the inadequacy of its warnings. (Motion Exh. D at pp. 44–45.) Although Plaintiffs point to evidence of scientific studies indicating the dangers of the chemicals at issue, there is no showing that PPG was actually aware of same. (Opposition at pp. 13–16.)

The motion is GRANTED as to the prayer for punitive damages.

Defendants to provide notice.

Case Number: BC672215    Hearing Date: September 03, 2020    Dept: 61

Defendants Vulcan Materials Company’s and Occidental Chemcial Corporation’s Motions for Summary Judgment are GRANTED.

Defendant to provide notice.

  1. OBJECTIONS

Plaintiffs’ Objections No. 1–3 to the Mata declaration concerning testimony about the production of MSDSs by other defendants are OVERRULED.

Defendants’ objections to Plaintiffs’ evidence submitted in opposition are not necessary to the court’s adjudication of this motion. (See Code Civ. Proc. § 437c, subd. (q).)

  1. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Vulcan and Occidental here move for summary judgment on the grounds that they are defendants because Plaintiffs allege Ramos was exposed to their chemicals through their incorporation into the products of defendants NCH, Sunnyside, and W.M. Barr. (Motion at pp. 5–6.) However, while these companies possessed MSDS’s from Vulcan and Occidental, they also possessed similar sheets from other companies. (Motion at pp. 5–6.) Thus, Vulcan and Occidental argue that it is speculative to conclude that any products to which Ramos was exposed contained methylene chloride supplied by themselves, as opposed to the other suppliers. (Motion at pp. 11–15.) Alternatively, Vulcan and Occidental argue that no evidence establishes they engaged in fraudulent concealment, or that they acted with malice, oppression, or fraud, sufficient to support a prayer for punitive damages. (Motion at pp. 15–19.)

Defendants rely on the case Izell v. Union-Carbide Corp. (2014) 231 Cal.App.4th 962, an asbestos case in which the court of appeal upheld a jury’s findings on causation with respect to some products but not others. The court concluded that substantial evidence did not support the conclusion that the appellant Union Carbide’s asbestos had been channeled to the plaintiff through the products of Kelly-Moore, because Kelly-Moore had multiple asbestos suppliers. (Id. at p. 970–71.) By contrast, substantial evidence supported the conclusion that Union Carbide’s asbestos had made its way to the plaintiff through another manufacturer, for whom Union Carbide was the “exclusive asbestos supplier” for the relevant time period. (Id. at p. 973.)

Similar reasoning was upheld in Johnson v. Arvinmeritor, Inc. (2017) 9 Cal.App.5th 234. The court there analyzed and applied Izell at the summary judgment stage in a case brought by a plaintiff (Johnson) whose mechanic father (Father) had been exposed him to asbestos through replacement brake linings he put into cars. The brake lines were allegedly manufactured by the company International, who had suppliers from Rockwell, Maremont, and Carlisle. The court applied Izell analysis to the facts:

Liberally construed, Johnson’s evidence supports the inference that Rockwell, Maremont (Grizzly), and Carlisle supplied brake linings for International brand replacement brake parts and that Father used some International brand replacement parts when he repaired brakes on the Bekins International trucks. However, Johnson produced no evidence to support an inference that the replacement brake linings Father actually handled were probably supplied by one of the Defendants. He produced no evidence that one of the Defendants was the primary or majority supplier of linings for International brand replacement brake parts. He produced no evidence that Defendants were likely to be the suppliers of brake linings for replacement parts for the models of International trucks owned by Bekins. He produced no evidence that sellers of International brand replacement parts to Bekins’s main warehouse in Stockton were more likely to carry replacement parts containing Defendants’ products than replacement parts containing other suppliers’ products. Absent this or similar evidence supporting an inference of probability that the replacement brake linings came from one of the Defendants, Johnson’s evidence simply establishes the possibility that Father was exposed to asbestos from a Defendant’s product. That is insufficient to defeat summary judgment.

(Id. at pp. 237–38.

Plaintiffs respond that Vulcan’s and Occidental’s proof of other MSDS’s from other producers is inadmissible because it is hearsay, as the evidence consists of their attorney testifying to the existence of the MSDSs as produced by the manufacturer corporations (and Plaintiffs) and a reference to each document’s Bates number. (Opposition at p. 16.) Yet the hearsay objection is without merit, as neither Vulcan nor Occidental seeks to admit the testimony for the truth of any factual assertion contained within the documents, but rather to prove that MSDSs from other companies were within the possession of NCH, Sunnyside, and Barr, and thus vitiating any inference that Vulcan and Occidental were the exclusive suppliers.

Plaintiffs also point to the case Webb v. Special Electric Company, Inc. (2016) 63 Cal.4th 167, in which the court stated in a footnote: “Plaintiffs introduced evidence that Webb was exposed to dust from Johns–Manville products containing trace amounts of crocidolite at roughly the same time Special Electric was supplying crocidolite asbestos to Johns–Manville. While evidence of the link could be stronger, it is nonetheless sufficient for the jury to have found that Special Electric's asbestos was a substantial factor in causing Webb's mesothelioma.” (Id. at p. 193, fn. 12.) But this language is off-point, as the argument that Vulcan and Occidental make here is not that they did not supply materials, but that their supply was not exclusive.

Accordingly, Plaintiffs have no rebuttal to Defendants’ arguments as to the non-exclusivity of their supply. Thus, under Izell and Johnson, they are entitled to judgment.

The motions for summary judgment are GRANTED.

Case Number: BC672215    Hearing Date: August 27, 2020    Dept: 61

Defendant W.M. Barr, Inc.’s Motion for Summary Adjudication is GRANTED as to the fourth cause of action for fraudulent concealment and prayer for punitive damages, and DENIED as to the fifth cause of action for breach of implied warranty.

Defendant to provide notice.

  1. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant W.M. Barr, Inc. (Barr) moves for summary adjudication of Plaintiffs’ claims for fraudulent concealment and breach of implied warranty. Additionally, Barr argues that summary adjudication is proper because Plaintiffs’ discovery responses indicate that it has no evidence that any managing agent of Barr’s acted with malice, oppression, or fraud.

  1. CONCEALMENT — FOURTH CAUSE OF ACTION[1]

‘The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. [Citation.]’ [Citation.]” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)

Barr argues that summary adjudication of Plaintiffs’ fraud claim is appropriate because there is no evidence of a “transaction” existing between Plaintiffs and Barr. They also argue that Plaintiffs’ discovery responses provide no evidence as to what specifically was concealed or other elements of the tort. (Motion at p. 7.)

Barr’s “transaction” argument is unpersuasive. It is true that a transaction or “direct dealings” between the plaintiff and a defendant is ordinarily necessary to establish a duty to disclose such that tortious concealment becomes of possibility. (Bigler-Ender v. Breg, Inc. (2017) 7 Cal.App.5th 276, 312 [medical device manufacturer had no duty to disclose to patient].) But courts have also upheld fraudulent concealment claims by employee-plaintiffs leveled against the manufacturers of products that were supplied to them through their employment, based on the theory that the manufacturers had exclusive or overbearing knowledge of the dangers of their own products. (See Jones v. ConacoPhilips Co. (2011) 198 Cal.App.4th 1187, 1199–1200 [holding fraudulent concealment adequately pleaded by family of deceased worker against manufacturers of chemical products he worked with].) Accordingly, this argument furnishes no basis to grant the motion.

As to the adequacy of Plaintiffs’ discovery, Barr asserts that Plaintiffs provided only “boilerplate objections” to its requests regarding Plaintiffs’ fraudulent concealment claim. (Motion at p. 6.) Barr points to Special Interrogatories No. 42–44, which asked Plaintiffs about the facts, evidence, and witnesses supporting their fraud claim, and to Plaintiffs’ document production concerning same, which consists of a series of Material Safety Data Sheets (MSDS) issued by Barr. (Motion Exhs. C, D.)

Plaintiffs’ responses to Barr’s queries regarding fraudulent concealment were as follows. They state that Barr’s products contain “toxic chemicals” to which Ramos was exposed at work. (Motion Exh. C at p. 92.) Plaintiffs assert, “It has been known for decades by chemical industries that inhalation of vapors of organic and inorganic materials is toxic and causes Cholangiocarcinoma.” (Id. at pp. 92–93.) Plaintiffs then discuss regulations and laws requiring chemical manufacturers to assess the hazards of their products and publicize those hazards on MSDSs. (Id. at pp. 93–94.) Given this duty to research and publicize, Plaintiffs then assert that Barr’s knowledge of its products’ hazards is “imputed by law.” (Id. at p. 97.) Despite this imputed knowledge, Barr’s MSDSs “contain inadequate warnings and instructions for the use and handling of the products.” (Id. at p. 97.) Specifically, Barr’s products failed to include written warnings that “inhalation of vapors from its products causes Chloangiocarcinoma,” and failed to include graphic symbols, such as a skull and cross-bones, indicating toxicity, or instructions regarding the use of a respirator to guard against the hazard. (Id. at p. 98.) The MSDSs themselves did not inform the reader of the circumstances in which respiratory and ermal protection would be useful or what sort of controls would be necessary. (Id. at p. 98.) This failure to warn caused Ramos to use the products, which caused his illness. (Id. at pp. 98–99.) When identifying witnesses, Plaintiffs identified Ramos’s supervisors and co-workers, as well as the persons most knowledgeable to be appointed by Barr. (Id. at pp. 100–101.) And when identifying the documents supporting their contentions, Plaintiffs identified the MSDSs. (Id. at p. 102.)

Plaintiffs in response argue that this description short-changes the full scope of their discovery. Although the responses above merely state that Barr’s products contained “toxic chemicals,” Plaintiffs point to another response in which they identify the products and chemicals at issue, including benzene, methylene chloride, methanol, 2-Butoxyethanol, ethylene, and glycol butyl ether. (Opposition at p. 10; Motion Exh. C at pp. 8, 10.) And while the responses do not state how Barr came to know of the toxicity of its products, Plaintiffs now present various studies regarding the toxicity of methylene chloride and other chemicals: two studies from 1982 regarding methylene chloride’s tendency to create tumors (Metzger Decl. Exhs. G–I.) Plaintiffs also point to a study from 1985 study of methylene chloride in mice indicating the chemical’s carcinogenicity, as well studies from 1990 indicating the toxicity of methylene chloride and polyvinyl -polyvinylidene chloride. (Metzger Decl. Exhs. L, M.)

The court finds that Barr has satisfied its initial burden to show the absence of triable issues as to Plaintiffs’ fraud claim, as nothing in the discovery responses that Plaintiffs presented contained any specific averment or evidence of Barr’s actual knowledge of the toxicity described or its intent to conceal the same. Plaintiffs in their discovery point to no facts or evidence on this point, but merely identify the products, identify the purportedly toxic chemicals, and state that Barr was aware of their toxicity and failed to provide adequate warnings. Barr is correct that Plaintiffs’ discovery response on this issue is factually devoid and, if unanswered, may constitute a basis for summary judgment. (Motion at p. 7; see Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 106 [deficient discovery responses forming basis for summary judgment].)

This is a defect in their evidence that Plaintiffs fail to redress. Plaintiffs do point to other discovery responses in which they identify the chemicals and products at issue, yet the only evidence that they provide showing that Barr was aware of any danger, or intended to conceal it, comes from a series of studies of which they have no evidence that Barr was actually aware. Plaintiffs argue that Barr should have been aware of same pursuant to its regulatory obligations (Opposition at p. 18), but this is insufficient to satisfy the elements of fraudulent concealment.

The motion is therefore GRANTED as to the Fourth Cause of Action.

  1. IMPLIED WARRANTY — FIFTH CAUSE OF ACTION

Barr moves for summary judgment on the fifth cause of action for implied warranty on the grounds that Plaintiffs cannot show privity of contract with Barr. (Motion at pp. 6–9.)

“Privity of contract is a prerequisite in California for recovery on a theory of breach of implied warranties of fitness and merchantability.” (Blanco v. Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1058.)

But not always. Courts have held that employees damaged by manufactured goods effectively are in privity with the entity from which their employer purchased the goods. (Peterson v. Lamb Rubber Co. (1960) 54 Cal.2d 339, 347 [”[I]t is a matter of common knowledge, and of course known to vendor-manufacturers, that most businesses are carried on by means of the assistance of employees and that equipment or supplies purchased by employers will in actual use be handled by the employees, who in this respect may be said to stand in the shoes of the employer.”].) This was the theory upon which Plaintiffs pleaded their case.

Accordingly, Barr’s motion is DENIED as to the fifth cause of action.

  1. PUNITIVE DAMAGES

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

  1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

  2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

  3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

Barr argues that it is appropriate to dismiss Plaintiffs’ punitive damages claim because of their factually bereft discovery responses as to malice or fraud, and Plaintiffs’ failure to proffer evidence that the conduct alleged was directed or ratified by a Barr managing agent. (Motion at pp. 9–11.) Barr specifically points to Plaintiffs’ responses to Special Interrogatories No. 51–54, which ask for facts and evidence supporting their claim for punitive damages and for identification of ratifying officers. (Motion Exh. C at p. 10.)

Plaintiffs responses to the punitive damages interrogatories contain the same defects as their responses to the interrogatories concerning fraudulent concealment, in that they contain no factual averments as to Barr’s knowledge specific to the products or chemicals at issue save for that imputed by their regulatory obligations. (Motion Exh. C at pp. 119–26.) And as to the identity of the managing agents responsible for the conduct, Plaintiffs responded only with the statement that discovery is continuing. (Motion Exh. C at p. 130.) The court agrees with Barr that this showing is sufficient to show an absence of triable issues as to the existence of malice oppression, or fraud, and to show an absence of triable issues as to ratification by managing agents, an essential element of punitive damages alleged against a corporate employer. (Civ. Code § 3294, subd. (b).)

Accordingly, the motion for summary adjudication is GRANTED as to the prayer for punitive damages.


[1] Plaintiffs argue that no summary adjudication may be granted on this claim because the description of the claim in the separate statement does state verbatim the basis for the argument against the claim that is stated in the notice of motion. (Opposition at p. 2, citing CRC Rule 3.1350, subd. (b).) Plaintiffs articulate no prejudice resulting from the discrepancy, and this argument furnishes no basis for denial.

Case Number: BC672215    Hearing Date: August 17, 2020    Dept: 61

Defendant Webb Chemical Service Corporation’s Motion for Summary Judgment or Adjudication is DENIED.

Defendants to provide notice.

  1. OBJECTIONS

Plaintiffs objects to the declaration of Bradley Hilleary, CEO of Webb, who testifies that Webb made no sales of methylene chloride to Sansher Corporation prior to 2009. The objection is SUSTAINED as being without foundation. Hilleary concedes that his testimony is based on business records that are not maintained for the period before 2009. Webb’s failure to maintain records from before that time is not evidence negating any activity that took place before then.

Webb, in turn, objects to the Ramos’s testimony that he was exposed to Sansher products through the use of his co-workers after 2009. These objections are OVERRULED.

  1. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

  1. EXPOSURE

A plaintiff in a toxic torts case “must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) Thus if no triable issues of fact exist as to whether Ramos was exposed to PPG products, then no claim against PPG may lie. (See Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 104.)

Webb moves for summary judgment on the grounds that there are no triable issues as to whether Ramos was exposed to its chemicals. Webb argues that Ramos was never directly exposed to any Webb products, and that the sole vector of exposure alleged by Plaintiffs is through products manufactured by Sansher Corporation. (Motion at pp. 6–7.) However, Webb argues that the evidence shows that Webb did not supply products to Sansher before 2009, and Ramos himself testified that he did not use Sansher products after 2002 or 2003. (Motion at p. 7.) Finally, Webb notes that Brian Cary, supervisor at Ramos’s employer, Vista Paints, testifies that Vista has a policy against allowing employees to handle products containing methylene chloride, meaning that no triable issues exist as to whether Ramos was exposed to the products while at his Vista employment. (Motion at p. 7.)

Plaintiffs respond that Webb’s motion relies on Ramos’s testimony concerning his own use of Webb or Sansher products, not the use by fellow co-workers through which Ramos may have been exposed to the chemicals at issue. (Opposition at p. 1.) Plaintiffs also note that Webb’s evidence does not establish that it did not sell methylene chloride to Sansher before 2009, only that Webb and Sansher lack records from before that time. (Opposition at p. 1.) And finally, Plaintiffs present the declaration of Ramos himself, testifying that he was exposed to Sansher products numerous times after 2009 through the use of his co-workers. (Opposition at p. 11; Ramos Decl. ¶¶ 4–5.) This is further corroborated by the material safety data sheets that Vista had in its possession for the Sansher products at issue. (Opposition at pp. 10–11.)

Ramos’s testimony concerning his exposure to Sansher products creates triable issues as to whether he was exposed to Webb’s products. Webb argues that Ramos does not testify as to which years he was exposed to Sansher products in the post 2009 period, or any testimony as to why he is qualified to say what paints he was exposed to. (Reply at p. 7.) But Ramos is in as good a position as any to testify to what paints were present at his workplace, and Webb provides no authority for the proposition that Ramos need enumerate the years he experienced exposure. And although Webb argues that Ramos’s declaration contradicts his deposition testimony, it does not; his deposition testimony stated that he did not personally use Sansher products after a certain point, not that he never was exposed by the use of his co-workers. (Reply at p. 8.)

Webb also argues in reply that there is no evidence to establish that it was the exclusive supplier to Sansher in the relevant period. (Reply at p. 9.) But Webb raised no such argument in its motion, and it would be inappropriate and unfair to grant dispositive relief in its favor on an argument that Plaintiffs never had a chance to respond to. “Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)

Accordingly, the Motion for Summary Judgment is DENIED.

  1. PUNITIVE DAMAGES

Webb also moves for summary adjudication of Plaintiffs’ prayer for punitive damages, on the grounds that the allegations in the Complaint and Plaintiffs’ written discovery do not establish entitlement to same. (Motion at pp. 11–12.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

  1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

  2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

  3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

In SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, the plaintiffs were farmers and landowners. Their neighbors hired a company to dust their crop with a certain herbicide, which drifted onto plaintiffs’ field, causing severe crop damage. (Id. at p. 904–05.) Their complaint alleged, in the court of appeal’s description, as follows:

Petitioners' complaint alleges Real Parties “knew or should have known” the specific facts regarding the dangers of crop dusting. The complaint also states Real Parties consciously chose to disregard the dangers; elevated their own economic interests above those of their neighbors; sprayed their fields without forewarning Petitioners; and dusted in a “reckless and callous” manner. Petitioners further allege after the spraying and resulting damage, Real Parties attempted to conceal their tortious conduct by withholding “legally mandated pesticide use reports.” The complaint concludes by stating Real Parties' acts were “willful, malicious, oppressive, and done with a conscious disregard of the probable consequences.”

(Id. at pp. 906–07.) The court of appeals found that the complaint had adequately “describe[d] conduct . . . from which a ‘conscious disregard’ for Petitioners’ rights may be inferred.” (Id. at p. 907.)

Plaintiffs here allege, in paragraphs 59, 74, and 97 of their Complaint:

In exposing Plaintiff to said toxic paints, solvents, industrial coatings, lacquers, and other chemical products, Defendants, and each of them, failed to warn Plaintiff of known dangers, consciously disregarded Plaintiff’s safety despite knowledge of the probable dangerous consequences of their products, and willfully and deliberately failed to avoid said dangerous consequences befalling Plaintiff. Defendants were either aware of, or culpably indifferent to, unnecessary risks of injury to Plaintiff and failed and refused to take steps to eliminate or adequately reduce the risk of said dangerous consequences to Plaintiff. Defendants concealed known hazards of their toxic paints, solvents, industrial coatings, lacquers, and other chemical products from Plaintiff, specifically by failing to warn Plaintiff of adverse toxic effects of their paints, solvents, industrial coatings, lacquers, and other chemical products, and such hazards were known by and such concealment was ratified by the corporate officers and managers of each of the defendants. Defendants consciously decided to market their paints, solvents, industrial coatings, lacquers, and other chemical product with knowledge of their harmful effects and without remedying the toxic effects of their products, and such marketing despite knowledge of the foregoing toxic hazards of Defendants’ products was ratified by the corporate officers and managers of each of the defendants. Defendants also misrepresented the nature of their paints, solvents, industrial coatings, lacquers, and other chemical products by withholding information from Plaintiff regarding toxic and carcinogenic chemicals released from their products during their anticipated or reasonably foreseeable uses, and such misrepresentation and withholding of information was ratified by the corporate officers and managers of each of the defendants.

The court concludes that the allegations in the Complaint are similar to those upheld in SKF Farms, and as such it is improper to grant summary adjudication on the punitive damages claim based on the allegations in the Complaint.

Webb further argues that nothing in Plaintiffs’ discovery responses can show the malice, oppression, or fraud sufficient to justify Plaintiffs’ prayer for punitive damages. (Motion at p. 12.) Yet Webb does not direct this court to which interrogatory responses addressed Webb’s request for punitive damages or evidence supporting same. Moreover, the responses that it provides do not state the subject of the interrogatories to which they pertain. (Petrosyan Decl. Exhs. C, D.) The court lacks any basis to conclude that Plaintiffs failed to respond adequately to Webb’s interrogatories on this subject, and Webb has thus failed to satisfy its burden to show the absence of triable issues as to Plaintiffs’ prayer for punitive damages.

Accordingly, the Motion for Summary Judgment is DENIED.

Case Number: BC672215    Hearing Date: August 04, 2020    Dept: 61

Defendant PPG Industries, Inc.’s Motion for Summary Judgment is GRANTED.

SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

  1. EXPOSURE

PPG moves for summary judgment on the grounds that no triable issues of fact exist as to Ramos’s exposure to methylene chloride supplied by PPG. PPG argues that the basis for Ramos’s claim against it is a material safety data sheet (MSDS) for methylene chloride evidently prepared by PPG, and produced by defendant Sunnyside Corporation in this action. (Motion Exh. L.) Although Plaintiffs contend that this shows PPG supplied a harmful chemical to a corporation whose products Ramos handled regularly, PPG argues that a single MSDS (dated 1990) does not support an inference that it ever supplied methylene chloride to Sunnyside. (Motion at p. 21.)

PPG also argues that, assuming the MSDS is sufficient evidence to draw an inference that PPG acted as a supplier of the chemical identified, it is not enough to show that PPG was the exclusive supplier of the chemical. (Motion at pp. 21–22.) PPG notes that Sunnyside produced several other contemporaneous methylene chloride MSDSs for other companies, meaning that Plaintiffs cannot show that it was PPG’s product that made contact with Ramos. (Motion Exh. L.)

A plaintiff in a toxic torts case “must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) Thus if no triable issues of fact exist as to whether Ramos was exposed to PPG products, then no claim against PPG may lie. (See Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 104.)

PPG relies on the case Izell v. Union-Carbide Corp. (2014) 231 Cal.App.4th 962, an asbestos case in which the court of appeal upheld a jury’s findings on causation with respect to some products but not others. The court concluded that substantial evidence did not support the conclusion that the appellant Union Carbide’s asbestos had been channeled to the plaintiff through the products of Kelly-Moore, because Kelly-Moore had multiple asbestos suppliers. (Id. at p. 970–71.) By contrast, substantial evidence supported the conclusion that Union Carbide’s asbestos had made its way to the plaintiff through another manufacturer, for whom Union Carbide was the “exclusive asbestos supplier” for the relevant time period. (Id. at p. 973.) Similar reasoning was upheld in Johnson v. Arvinmeritor, Inc. (2017) 9 Cal.App.5th 234 [applying Izell, relying on exclusivity].)

Plaintiffs have no answer to the argument from Izell and do not mention the case in their opposition. They rather argue that the existence of a PPG MSDS in Sunnyside’s possession indicates that PPG supplied the named chemical to Sunnyside, and thus conclude that the allegation that the Sunnyside products that Ramos used contained PPG chemicals cannot be conclusively negated. (Opposition at pp. 9–11.) But this misunderstands the summary judgment standard: PPG on summary judgment is not required to prove a negative, but to show that the plaintiff will be unable to prove their case at trial. (See Aguilar, supra, 25 Cal.4th at p. 853 [summary judgment does not require defendants “to conclusively negate an element of the plaintiff's cause of action,” but to “show that one or more elements of the cause of action ... cannot be established” by the plaintiff”], internal alterations omitted.) PPG has done this by showing that Plaintiffs will not be able to show that it was actually exposed to chemicals provided by PPG, as opposed to another of Sunnyside’s methylene chloride distributors. PPG has thus met its burden under Izell, and Plaintiffs have not responded.

Accordingly, the Motion for Summary Judgment is GRANTED.

Case Number: BC672215    Hearing Date: July 28, 2020    Dept: 61

Defendant NCH Corporation’s Motion for Summary Judgment or Adjudication is DENIED.

  1. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

  1. EXPOSURE

NCH moves for summary judgment on the grounds that Ramos in deposition could not recall NCH, any of its products, or using or selling any of the same. (Motion at pp. 12–13.)

A plaintiff in a toxic torts case “must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) Thus if no triable issues of fact exist as to whether Ramos was exposed to PSI products, then no claim against PSI may lie. (See Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 104.)

NCH’s evidence is insufficient to satisfy its initial burden on summary judgment. Although a plaintiff’s failure to recall use of a given product may show the absence of triable issues where the testimony demonstrates that the plaintiff is generally able to recall the products they worked with during that time frame (See Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1440–41), NCH presents no such context here. To obtain summary judgment, NCH must make a showing that plaintiff will be unable to prove its case by any means. All the court is presented with is testimony by Ramos stating that he is unfamiliar with NCH products. That is not enough when presented in isolation. The court cannot infer that there exists no other evidence or that plaintiff cannot obtain evidence proving exposure. NCH is seeking judgment as a matter of law based on plaintiff’s inability to recall whether he came into contact with their product decades ago. This inability to identify the product does not create an inference of non exposure.

NCH also presents the testimony of Brian Cary, Ramos’s supervisor from 1999 to 2006 or 2007, who testifies that he too is not familiar with a company called NCH, and that he is generally familiar with the products sold by his and Ramos’s mutual employer. (Motion Exh. C at p. 85.) But Cary’s own testimony covers the period from 1999 to 2007, a fraction of Ramos’s employment history with the products at issue in this case. Even accepting his testimony as establishing affirmatively that no NCH products were used throughout his tenure with Ramos, it does not foreclose the existence of triable issues of fact as to exposure at other times during Ramos’s employment.

As this evidence constitutes the entire basis for NCH’s motion, both for summary judgment and for adjudication of each cause of action and the prayer for punitive damages, NCH’s motion is DENIED.

Case Number: BC672215    Hearing Date: July 23, 2020    Dept: 61

Defendant Packaging Service Inc.’s Motion for Summary Judgment is GRANTED as to the second cause of action for failure to warn and to the prayer for punitive damages. The motion is otherwise DENIED.

Defendant Buckley Oil Company’s Joinder to Defendant Packaging Service Inc.’s Motion for Summary Judgment or Adjudication is DENIED.

OBJECTIONS

PSC’s objections to the Brust Declaration and the material safety data sheets attached are OVERRULED.

SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

EXPOSURE

PSC moves for summary judgment on the grounds that there are no triable issues of fact as to whether Ramos was exposed to its products, based on testimony from Ramos that he could not recall using the products at issue or getting them on his skin. PSC also moves for summary adjudication of the second cause of action for failure to warn, on the grounds that Ramos testified he never read the labels or safety data sheets for the products at issue. Finally, PSC argues that summary adjudication may be had of the prayer for punitive damages because Plaintiffs’ responses to discovery concerning same was devoid of facts. Defendant

A plaintiff in a toxic torts case “must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) Thus if no triable issues of fact exist as to whether Ramos was exposed to PSC products, then no claim against PSC may lie. (See Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 104.)

PSC points to deposition testimony from Ramos in which he states that, although he remembered seeing PSC products — in this case Crown R-6 Heavy Duty Remover and Crown R-3 Remover Semi-Paste — and recognized their logos, he could recall no instances in which he personally used the products. (Motion at p. 9.) PSC also points to Ramos’s interrogatory responses, in which he confirmed that he had no recollection of using PSC products. (Motion Exhs. B, C.)

Plaintiffs respond with the argument that a toxic tort plaintiff’s own failure to recall using a particular product is insufficient to preclude the existence of triable issues of fact as to his own exposure. (Opposition at pp. 4–5, citing Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433.) Plaintiffs also argue that the questions propounded by PSC in deposition concerned only his own use of the products, and did not address the potential for exposure from use by his co-workers. (Opposition at pp. 3–4.)

The court agrees with Plaintiffs on the former count. Although a plaintiff’s failure to recall use of a given product may show the absence of triable issues, the burden is on the moving party to show that the testimony demonstrates that the plaintiff is generally able to recall the products they worked with during that time frame, such that their recall would be of use to the trier of fact. (See Weber, supra, 143 Cal.App.4th at pp. 1440–41.) Factually bereft interrogatory responses may fill the gap, as PSC argues, but the interrogatory response that PSC relies upon is merely a recitation of the deposition testimony: namely, that Ramos does not recall using PSC products. (Motion Exh. C.) This isolated showing of Ramos’s failure of recall is insufficient to carry the initial burden as to exposure. “A negative response to that question simply does not create an inference either of nonexposure or of the inability to prove exposure by some other means.” (Id. at p. 1439.) Defendant may not shift the burden by showing that Plaintiff has no recollection of using its product. Defendant must make an affirmative showing that Plaintiff cannot prove its case by any means.

Accordingly, PSC’s motion for summary judgment is DENIED, as is Buckley’s joinder to same.

FAILURE TO WARN

PSC moves for adjudication of Plaintiffs’ second cause of action for strict products liability under a failure to warn theory. “To be liable in California, even under a strict liability theory, the plaintiff must prove that the defendant's failure to warn was a substantial factor in causing his or her injury. The natural corollary to this requirement is that a defendant is not liable to a plaintiff if the injury would have occurred even if the defendant had issued adequate warnings.” (Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1604.) This means that a plaintiff in a failure-to-warn case must prove “that if the [defendant] had issued a warning, they would have acquired the knowledge they lacked.” (Id. at p. 1597.)

PSC presents evidence here from Ramos’s deposition testimony that he could not recall if PSC products had warnings on the container, stating, “They may have a warning. . . . I didn’t really pay attention to it.” (Motion Exh. G at p. 570.) Ramos also could not recall ever reading a material safety data sheet for the PSC products at issue. (Motion Exh. G at pp. 570–71.)

Plaintiffs respond that there can be no adjudication of this issue without a presentation of evidence as to the adequacy of the warnings in question, since, conceivably, Ramos might have read or heeded an adequate warning. (Opposition at p. 11.) But Plaintiffs’ authority on this point addresses arguments centered on the adequacy of the warnings issued, not on causation. (See Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1320.) Plaintiffs do not address authority for the proposition that a defendant can satisfy its burden on summary judgment as to causation by showing a plaintiff did not heed warnings or instructions actually given. (See Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 112 [“There can be no proximate cause where, as in this case, the prescribing physician did not read or rely upon the allegedly inadequate warnings promulgated by a defendant about a product.”].)

Plaintiffs further argue that an adequate warning might have mattered to Ramos’s employer, but their authority on this point is likewise inapposite. .) Plaintiffs rely on Schwoerer v. Union Oil Co. (1993) 14 Cal.App.4th 103, 113, in which the court ruled that a manufacturer’s warning labels were inadequate, and stated, “had defendants warned against irreversible damage to vital organs as a possible result of dermal exposure, it is reasonable to believe plaintiff and his employer might have taken the advisory more seriously.” (Id. at p. 113, italics added.) But this case does not stand for the proposition that a Plaintiffs may rely upon their employers to read warning labels for them. The employer’s role in that case was significant because the employer, based on the MSDS, declined to give the employee protective equipment, and “Plaintiff's employer never provided him with a copy of the MSDS and plaintiff's requests to see the MSDS were ignored.” (Id. at p. 109.) There are no such facts presented with the motion or opposition.

Accordingly, PSC has satisfied its burden to show an absence of triable issues as to causation in Plaintiffs’ failure to warn claim, and Plaintiffs have failed to produce substantial responsive evidence to rebut this showing. Accordingly, the motion for summary adjudication is GRANTED as to the second cause of action.

PUNITIVE DAMAGES

PSC argues that Plaintiffs are not entitled to punitive damages. (Motion at p. 17.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

  1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

  2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

  3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

PSC relies on its Special Interrogatories No. 113–115, which asked Plaintiffs to provide facts, documents, and witnesses supporting its claim for punitive damages against it. (Motion at pp. 17–18, Exh. B.) Plaintiffs responded to these interrogatories by stating that PSC and its managing agents were presumed to know of the hazards of the chemicals contained in its products because the hazards were known or knowable when it put the products into commerce, yet PSC failed to warn of the risk of developing Cholangiocarcinoma and other injuries from exposure. (Motion Exh. C.)

The court finds that PSC has satisfied its initial burden to show an absence of triable issues of fact entitling Plaintiffs to punitive damages. Conclusory responses to discovery, considered in light of the surrounding direct, circumstantial, and inferential evidence, can support a defendant’s burden to show an absence of triable issues of fact on summary judgment. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101.) When asked for facts and evidence supporting Plaintiffs’ claims for punitive damages here, Plaintiffs merely provided boilerplate responses and recited that PSC and its managing knew and were presumed to know of the hazards in its products in conclusory fashion, without citing any supporting evidence. In opposition, Plaintiffs repeat their conclusory responses based on their allegations in the complaint. (Opposition at pp. 17–20.) This is not substantial responsive evidence sufficient to raise a triable issue of fact.

Accordingly, PSC’s Motion for Summary Adjudication is GRANTED as to Plaintiffs’ prayer for punitive damages.

Case Number: BC672215    Hearing Date: July 16, 2020    Dept: 61

Defendant Altair Industries, Inc.’s Motion for Summary Judgment or Adjudication is DENIED as to all causes of action but GRANTED as to the prayer for punitive damages.

OBJECTIONS

Plaintiffs’ objections No. 1–3 to the declaration of Robert Kamins are SUSTAINED for lack of foundation. Plaintiffs’ objection to the request for judicial notice is likewise SUSTAINED, as the court may not take judicial notice of the fact that a person is a company’s CEO based on a private web page’s listing of that company’s CEO.

SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

ALTAIR MOTION

Altair moves for summary judgment on the grounds that Altair’s sole connection to this case is the material safety data sheet produced by Sunnyside Products in this action, dating from the 1990s, which as Altair acknowledges “reflects the possible supply of MEC [methylene chloride by Altair to Sunnyside in 1991.” (Motion at p. 14.) However, Altair also argues that there are no documents reflecting that Sunnyside purchased MEC from Altair at any time, and argues that there is no indication that any MEC purchased by Sunnyside was used in products that Ramos used. (Motion at p. 14.) Altair notes that Sunnyside produced other products that contained MEC, and argues that Plaintiffs have no evidence that the MEC supplied by Altair was used in the one Sunnyside product that Plaintiffs now contend contained the chemical: Sunnyside Brush Cleaner. (Plaintiff’s Separate Statement of Undisputed Material Facts (PUMF) No. 21.)

Plaintiffs respond that the MSDS produced by Sunnyside is sufficient grounds on which to find triable issues of fact as to whether Ramos was exposed to Altair products.

The case Izell v. Union-Carbide Corp. (2014) 231 Cal.App.4th 962, is instructive. This was an asbestos case in which the court of appeal upheld a jury’s findings on causation with respect to some products but not others. The court concluded that substantial evidence did not support the conclusion that the appellant Union Carbide’s asbestos had been channeled to the plaintiff through the products of Kelly-Moore, because Kelly-Moore had multiple asbestos suppliers. (Id. at p. 970–71.) By contrast, substantial evidence supported the conclusion that Union Carbide’s asbestos had made its way to the plaintiff through another manufacturer, for whom Union Carbide was the “exclusive asbestos supplier” for the relevant time period. (Id. at p. 973.) Similar reasoning was upheld in Johnson v. Arvinmeritor, Inc. (2017) 9 Cal.App.5th 234 [applying Izell, relying on exclusivity].)

Altair’s showing is insufficient to grant summary judgment based on the above authority. It has acknowledged that the MSDS reflects a possible supply of methylene chloride to Sunnyside in the 1990s, but argues Ramos’s exposure is speculative because products other than Sunnyside’s brush cleaner, to which Ramos was not exposed, contained methylene chloride. But the existence of other products creates no triable issues as to whether Altair supplied the chemicals at issue if there is no evidence of other contemporaneous suppliers. Here, Altair has presented no evidence that other suppliers may have provided MEC for use in Sunnyside’s products during the same period. Thus, given Altair’s acknowledgement that the MSDS creates a plausible inference that it supplied MEC to Sunnyside, there remain triable issues as to whether Ramos suffered exposure to its MEC.

PUNITIVE DAMAGES

Altair argues that Plaintiffs are not entitled to punitive damages. (Motion at p. 17.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

  1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

  2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

  3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

Altair relies on Plaintiffs’ responses to Special Interrogatories No. 33–38, which inquired as to the facts and evidence supporting their claim for punitive damages. (Motion Exhs. E, F.) Plaintiffs’ response stated that Altair and its CEO were presumed to know of the hazards of the chemicals contained in its products because the hazards were known or knowable when Altair put the products into commerce, yet Altair failed to warn of the risk of developing “Cholangiocarcinoma and other cancers from chronic exposure to toxic vapors” that resulted from ordinary use of the product. (Motion Exh. F.)[1]

The court finds that Altair has satisfied its initial burden to show an absence of triable issues of fact entitling Plaintiffs to punitive damages. Conclusory responses to discovery, considered in light of the surrounding direct, circumstantial, and inferential evidence, can support a defendant’s burden to show an absence of triable issues of fact on summary judgment. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101.) When asked for facts and evidence supporting Plaintiffs’ claims for punitive damages here, Plaintiffs merely recited that Altair and its CEO knew and were presumed to know of the hazards in its products, without citing any actual supporting evidence. In opposition, Plaintiffs repeat their responses. (Opposition at pp. 17–20.) This is not substantial responsive evidence sufficient to raise a triable issue of fact.

Accordingly, Altair’s Motion for Summary Adjudication is GRANTED as to Plaintiffs’ prayer for punitive damages.


[1] Altair argues that Plaintiffs in their responses identified the wrong CEO as ratifying the conduct, but Altair presents no admissible evidence that the wrong CEO was identified. (Motion at p. 17.)

Case Number: BC672215    Hearing Date: July 14, 2020    Dept: 61

Defendant Ashland LLC’s Motion for Summary Judgment or Adjudication is DENIED.

OBJECTIONS

Plaintiffs’ objections No. 1–3 to the Rabalais declaration are OVERRULED, as Rabalais provides adequate foundation for the statements objected to. Objections No. 1–4 to the declaration of Donald Modglin are likewise OVERRULED, as Modglin testifies he is familiar with the chemical mehthylene chloride and was among the people who would have been contacted had an employee made a demonstration using a product containing the chemical.

SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Ashland moves for summary judgment on the grounds that there are no triable issues of fact as to whether Ramos was actually exposed to Ashland’s products, defined as Parlon R and Parlon S Chlorinated Rubber and 1,1,1 trichloroethane. Ashland argues that Ramos in deposition could not recall working with Parlon R or S, and that his supervisors and coworkers also could not recall the products being at Ramos’s places of work. (Motion at pp. 2–3.) As to 1,1,1 trichloroethane, although he did testify to using the chemical while at work, he also testified that he was unable to tell who the manufacturer of the chemical was. (Motion at p. 3.)

A plaintiff in a toxic torts case “must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) Thus if no triable issues of fact exist as to whether Ramos was exposed to Ashland products, then no claim against Ashland may lie. (See Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 104.)

Plaintiffs in opposition, however, point to a material safety data sheet (MSDS) produced by Sinclair, Ramos’s former employer, for the chemical “trichloroethane 111,” which lists Ashland Chemical as the promulgator of the sheet and lists the date of preparation as 1994. (Opposition Exh. B.) Plaintiffs also present an MSDS for the products Parlon R and Parlon S, also provide by Sinclair, this one stating that it was prepared in 1985. (Opposition Exh. B.)

The court concludes that Ashland has satisfied its initial burden to show the absence of triable issues of fact as to Ramos’s exposure to its products. Ramos himself testified that he did not recall the products Parlon R and Parlon S, even as he has proven able to testify to his use of other products throughout his employment. And although he testified to his use of 1,1,1, trichloroethane, he was unable to testify as to the source of the chemical, or particularly if Ashland was the supplier.

However, the court concludes that Plaintiffs have presented substantial responsive evidence creating a triable issue of fact as to whether Ramos was exposed to Ashland’s 1,1,1 trichloroethane, in the form of an MSDS as to that chemical prepared by Ashland and discovered in the possession of Sinclair, Ramos’s employer. A plausible inference drawn from Sinclair’s possession of this MSDS is that Ashland supplied Sinclair with the product described on the sheet, as it is required to do under federal law. (See 29 CFR § 1910.1200, subd. (b)(1) [“This section requires chemical manufacturers or importers to classify the hazards of chemicals which they produce or import, and all employers to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, safety data sheets, and information and training. In addition, this section requires distributors to transmit the required information to employers.”].) In conjunction with Ramos’s recollection as to his use of the chemical at his employer, this sheet creates a plausible inference that it was Ashland that provided the chemical that Ramos used.

The Motion for Summary Judgment is therefore DENIED.

Case Number: BC672215    Hearing Date: July 02, 2020    Dept: 61

Defendant EMCO Chemical Distributors, Inc.’s Motion for Summary Judgment is GRANTED.

SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

EMCO moves for summary judgment on the grounds that Ramos was not familiar with EMCO or any EMCO products. (Motion Exh. H at p. 706.) The sole basis for finding EMCO liable is evidently EMCO’s sale of its own methylene-chloride products for incorporation into products marketed and sold by the Sunnyside corporation. (Motion Exhs. C, E.) But EMCO argues that the evidence linking EMCO to Sunnyside comes from an MSDS dated 2014. Meanwhile, EMCO points to Ramos’s deposition testimony in which he states that he ceased working with Sunnyside products after he switched employers from Sinclair to Vista sometime in 2002 or 2003. (Motion Exh. I at pp. 494–95.) Because the only evidence that Plaintiffs have shows that EMCO products incorporated into Sunnyside products after the period in which Ramos used them, EMCO argues that summary judgment is proper. (Motion at pp. 11–15.)

Plaintiffs respond that Ramos elsewhere testified that he did use Sunnyside products after transferring to Vista. (Opposition at p. 3.) The relevant testimony submitted by both parties is as follows.

During his deposition, Ramos stated that he used paint thinner and acetone to get paint off his skin while employed at Sinclair, and that the thinner and acetone products he used were Sunnyside. (Opposition Exh. B at pp. 104–05.) When the questioning turned to what products Ramos used at his later Vista employment to get colorants and paint off his skin, he repeated that Sunnyside was among the manufacturers whose products he used. (Opposition Exh. B at pp. 236–39.) Ramos also testified that he demonstrated to customers how to use similar products, including Sunnyside products, as brush cleaners at both Sinclair and Vista. (Opposition Exh. B at pp. 338–40.)

Later, Ramos was asked specifically about his use of Sunnyside products. Ramos specifically recalled using Sunnyside acetone to remove paint from his skin while at Sinclair, and when asked about Vista, the following exchange occurred:

Q: So at Sinclair you used acetone – Sunnyside Acetone to remove your – remove paint from your skin at 30-second intervals about 100 times, correct?

A: Correct.

Q: About how many times – or strike that. Did you use Sunnyside Acetone to remove paint from your skin while at Vista?

A: Yeah – no. At Vista? No.

Q: So just at Sinclair?

A: Yes.

(Opposition Exh. B at pp. 480–81.)

When asked about whether Ramos used Sunnyside Paint Thinner at Vista, Ramos answered, “No.” (Motion Exh. H at p. 483–84.) Later, the following exchange occurred:

Q; Do you recall the last time [you] used Sunnyside Paint Thinner?

A: It would have to be in the ‘90s.

Q: While you were still at Sinclair?

A: Yeah.

Q: And is that also true of the Sunnyside Acetone?

A: Yes.

(Opposition Exh. B at pp. 492–93.)

Finally, when asked about Sunnyside Brush Cleaner, Ramos testified that he would sample the product for customers at Sinclair, but not at Vista. (Motion Exh. H at pp. 493–94.) When asked whether he could recall other instances of using Sunnyside Brush Cleaner other than at Sinclair, he answered that he could not recall. (Motion Exh. H at pp. 496–97.) Ramos also testified that he had not used Sunnyside Paint Thinner since transferring from Sinclair to Vista. (Motion Exh. H at pp. 499–500.)

Thus, Ramos early in his deposition stated that he used Sunnyside Acetone, Paint Thinner, and Brush Cleaner at both Sinclair and Vista, but later stated that he only used Sunnyside paint thinner and acetone at Sinclair, and stopped using both in the 90s, before his transfer to Vista. He also stated that he only demonstrated the use of brush cleaner at Sinclair, and could recall no other instances of his use of the product. This is significant because the evidence that Plaintiffs put forward in discovery to show that EMCO supplied methylene chloride to Sunnyside consisted of an MSDS issued in 2014, which would place Ramos’s exposure before EMCO’s supply of methylene chloride to Sunnyside.

This inconsistent testimony is insufficient to create a genuine issue of triable fact as to Ramos’s exposure to EMCO’s products, and summary judgment is appropriate. In the case Davis v. Foster Wheeler Energy Corp. (2012) 205 Cal.App.4th 731, a plaintiff sued manufacturers of boilers that had been installed at his employment site for containing asbestos that caused his mesothelioma. (Id. at p. 733.) The plaintiff alleged the boilers contained asbestos insulation that was exposed whenever the manufacturers’ agents arrived to perform routine maintenance. (Id. at pp. 733–34.) The defendant moved for summary judgment on the grounds that it was undisputed that there was no asbestos insulation in the boilers, but the plaintiff introduced the testimony of a third party witness who said that workers bearing the logo of the defendant would regularly attend to the boilers, remove the insulation, and replace it with insulation material with “asbestos-containg” on the packaging. (Id. at pp. 734–35.) That same witness later testified, however, that he had no knowledge of who employed the workers he had seen, and that he could not say whether the defendant’s agents had performed any work on the insulation. (Id. at p. 735.) The trial court granted summary judgment, and the appellate court affirmed, reasoning that the witness’s testimony was “contradictory,” and that this “internally contradictory testimony” did not establish “the existence of a triable issue of fact.” (Id. at p. 736.)[1]

The situation here is essentially the same. Ramos first testified that he had used Sunnyside products at both Sinclair and Vista locations, and thus potentially into the period for which he has some evidence that EMCO supplied methylene chloride to Sunnyside, in the form of the 2014 MSDS. But when asked directly about his use of Sunnyside products, he later provided testimony directly contradicting these claims, stating that he stopped using Sunnyside products in the late 90s and never used them at his new employment with Vista. EMCO has thus met its burden to show no triable issues of fact exist as to whether Ramos was exposed to its products based on Ramos’s specific testimony, and Ramos’s own self-contradictory counter-testimony is insufficient to create a triable issue of fact on this point.

Because there is no triable issue on exposure, EMCO is entitled to summary judgment on its motion.

EMCO’s Motion for Summary Judgment is GRANTED.

Defendants to provide notice.


[1] The court expressly distinguished the situation it faced on summary judgment from that involved in a motion for judgment notwithstanding the verdict, in which internally inconsistent witness testimony could support a verdict. (Id. at p. 735–36.)

Case Number: BC672215    Hearing Date: June 23, 2020    Dept: 61

Defendant Sansher Corporation’s Motion for Summary Judgment or Adjudication is GRANTED as to the Fourth and Fifth Causes of Action, and as to the prayer for punitive damages. It is DENIED as to the First, Second, Third, and Sixth Causes of Action.

  1. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

  1. CAUSATION

A plaintiff in a toxic torts case “must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) Sansher argues that summary judgment is appropriate as to Plaintiffs’ claims because the extent of Ramos’s exposure to Sansher products is speculative. Specifically, Sansher argues that Ramos was only exposed to Sansher’s products between 1984 to 2002, and that Sansher products made up only three of the 60 different paint and varnish removers on sale at any one time. (Motion at p. 12.) Likewise, Ramos was unable to provide any estimate as to the extent of his exposure during this period. (Motion at p. 12.) And finally, Ramos only developed his harmful diagnosis in 2015, more than a decade after Ramos’s last exposure to Sansher’s products. (Motion at pp. 12–13.)

Sansher has failed to satisfy its initial burden. Sansher purports to argue that summary judgment is appropriate because Plaintiffs have no evidence that Ramos was exposed to its products with sufficient frequency, regularity, and proximity to raise an inference of medically significant exposure. (See Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1084.) Here, Sansher’s evidence itself establishes that its products were “popular to demonstrate” at Ramos’s employer from 1984 to 2002, and were indeed among the “most popular” such products. (Sansher Exh. B at pp. 677–78.) And while Ramos declined to offer a precise estimate of the time spent per week demonstrating Sansher products, he stated that it “varied,” and that at times he “could have demonstrated it 10, 15 times a day.” (Sansher Exh. B at p. 677.) The testimony that Sansher introduces thus does not establish that Ramos was not exposed to Sansher products with sufficient frequency or regularity, but rather creates a triable issue as to that very point.

The fact that Ramos was exposed to other chemicals during this same period, and that his job demonstrating Sansher products ended in 2002 or 2003, does not vitiate this point. Sansher in this motion does not argue against Plaintiffs’ underlying theory of the case in which exposure to methylene chloride in Sansher and other products contributed to Ramos’s harmful diagnosis, and it offers no evidence to dispute that claim. Moreover, if it is uncontested that Ramos was exposed to a harmful chemical through exposure to Sansher’s products, the issue of causation becomes a complex issue requiring expert analysis, which Sansher does not provide here. Causation in toxic torts cases “must be founded upon expert testimony and cannot be inferred from the jury's consideration of the totality of the circumstances unless those circumstances include the requisite expert testimony on causation.” (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1385.) Whether the delay between the end of Ramos’s Sinclair employment and his diagnosis is medically relevant to the issue of causation is not a matter upon which Sansher presents any evidence.[1] It is thus not a point upon which this court may grant judgment.

Accordingly, the Motion for Summary Judgment is DENIED.

  1. PUNITIVE DAMAGES

Sansher argues that Plaintiffs are not entitled to punitive damages because, assuming its safety warnings on its products were inadequate, Ramos testified that he never read those labels. (Motion at p. 15.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

  1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

  2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

  3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

Sansher argues that no evidence supports the award of punitive damages against Sansher because, although Plaintiffs claim punitive damages resulting from Sansher’s failure to adequately warn of its products’ hazards, Ramos testified that he never reviewed the product labels on Sansher products, and never reviewed the MSDS that the employer kept in their office. (Motion at p. 15.) Given that it is a failure to warn or disclose hazards that forms the basis for Plaintiffs’ claim for punitive damages, Sansher argues that Ramos’s failure to read the labels requires dismissal of his claim for punitive damages. (Complaint ¶¶ 59, 74, 97.)

Plaintiffs in opposition argue that, even if Ramos did not read the labels, his employer might have, and assuming the warnings were inadequate (which Sansher does not argue on this motion), Ramos’s injury may have been the product of unsafe practices instituted by his employer, prompted by the inadequate warnings. (Opposition at pp. 8–9.) Plaintiffs rely on Schwoerer v. Union Oil Co. (1993) 14 Cal.App.4th 103, 113, in which the court ruled that a manufacturer’s warning labels were inadequate, and stated, “had defendants warned against irreversible damage to vital organs as a possible result of dermal exposure, it is reasonable to believe plaintiff and his employer might have taken the advisory more seriously.” (Id. at p. 113.)

But this case does not stand for the proposition that a Plaintiff may rely upon employers to read warning labels for them. The employer’s role in that case was significant because the employer, based on the MSDS, declined to give the employee protective equipment, and “Plaintiff's employer never provided him with a copy of the MSDS and plaintiff's requests to see the MSDS were ignored.” (Id. at p. 109.) There are no such facts presented with the motion or opposition. Indeed, the evidence indicates that Ramos had access to the MSDS sheets and provided them to consumers. And while Plaintiffs briefly argue that the packaging for Sansher products had no warning labels, this is merely to misconstrue the evidence. Ramos did not testify that Sansher products lacked warning labels, but that Sansher products did not have “labels’ affixed to the packaging, and instead had product information printed or painted directly on the can. (Motion Exh. B at pp. 684–85.) Because a failure to warn must cause the plaintiff’s damages in products liability cases (See Webb v. Special Electric Co. (2016) 63 Cal.4th 167, 181), and because Ramos did not read or rely upon any warnings that Sansher actually provided, the court agrees that Sansher has demonstrated the absence of triable issues of fact as to the existence of malice, oppression, or fraud under Civil Code § 3294, and that Plaintiffs have failed to rebut that showing in opposition. (See Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1597 [“But causation, in this case, requires the plaintiffs to prove that if the Gas Company had issued a warning, they would have acquired the knowledge they lacked. A warning that never reached plaintiffs would not have changed the events that occurred on the day of the accident.”].)

The Motion is therefore GRANTED as to Plaintiffs’ prayer for punitive damages against Sansher.

  1. REMAINING CAUSES OF ACTION

Sansher argues that summary adjudication of the First, Second, Third, and Sixth Causes of Action (for negligence, strict products liability, and loss of consortium) is appropriate because of its argument that Ramos was never sufficiently exposed to Sansher products. (Motion at pp. 13, 16.) Yet the failure of this argument as a whole militates against its success as to these claims in particular. The result is the same, and the motion is DENIED as to these claims.

Sansher next argues that summary adjudication is appropriate as to the Fourth Cause of Action for fraudulent concealment because there is no evidence that Sansher failed to disclose any material information, or that Ramos relied upon any non-disclosure, given his admitted failure to read Sansher’s packaging or accompanying MSDSs. (Motion at pp. 17–18.) “Reliance is an essential element of a fraudulent concealment claim.” (Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 928.) The court agrees with Sansher that it has satisfied its burden to show no triable issues on the reliance element of Plaintiffs’ concealment claim, based on the same facts discussed above with regard to Plaintiffs’ prayer for punitive damages. Plaintiffs have provided no responsive evidence in opposition. The motion is therefore GRANTED as to the Fourth Cause of Action for fraudulent concealment.

Sansher finally argues that Fifth Cause of Action for Breach of Implied Warranty must fail because that theory is effectively pre-empted in the context of personal injury caused by defective products. (Motion at p. 18.) Sansher relies on the following language from Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424:

[W]e first observe that in cases involving personal injuries resulting from defective products, the theory of strict liability in tort had virtually superseded the concept of implied warranties. . . . The nature of the strict liability of a manufacturer resulting from the sale of defective products was finally put to rest by Greenman which declared that such liability is not one governed by the law of contract warranties or the implied warranties of the sales act but by the law of strict liability in tort, and that the rules defining and governing warranties cannot properly be invoked to govern the manufacturer's liability to those injured by its defective products unless those rules also serve the purposes for which such liability is imposed. In the light of this rule we believe that if the trial court was justified in submitting the case to the jury on the basis of implied warranty liability, it also had cause to instruct on the law of strict liability in tort. The fact that no instruction was given by the trial court on the law of strict liability in tort does not preclude reliance on that theory since the basic elements to be proved are the same. Although the trial court instructed in terms of the implied warranty of fitness for the purpose for which the vaccine was sold provided for in former Civil Code, section 1735,4 which was in force at the time the subject vaccine was ingested, the effect of these instructions was to instruct on the theory of strict liability in tort since [t]he section imposes an absolute liability regardless of negligence. Accordingly, in the discussion that follows we will deal with the rules involving strict liability in tort rather than the superseded implied warranty concept.

(Id. at pp. 432–33, internal quotation marks and citations omitted.) It appears from the above language that the doctrine of implied warranties is indeed superseded where the law of strict liability in tort is applicable. The Fifth Cause of Action for breach of implied warranty in the present case thus appears to be at worst infirm or at best redundant of the other claims for strict liability. Plaintiffs present no argument in opposition as to the continuing viability of their warranty claim.

Accordingly, the motion is GRANTED as to the Fifth Cause of Action for breach of implied warranty.


[1] It is a general feature of toxic torts that illness manifests after “long periods of latency.” (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 700–01.)

Case Number: BC672215    Hearing Date: January 22, 2020    Dept: 61

Defendant Transchem, Inc.’s Motions to Compel Further Responses to Form and Special Interrogatories from Mark Anthony Ramos and Sylvia Nunez Ramos are GRANTED as to Special Interrogatory No. 84, GRANTED in part and DENIED in part as to Form Interrogatory No. 8.7 and DENIED as to Form interrogatory 10.2. No sanctions are awarded.

  1. MOTION TO COMPEL FURTHER — INTERROGATORIES

“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.” (Code Civ. Proc., § 2030.010(a).) If a propounding party is not satisfied with the response served by a responding party, the former may move the court to compel further interrogatory responses. (Code Civ. Proc., § 2030.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) The propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general. (Code Civ. Proc., § 2030.300(a)(1)–(3); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 403.)

Transchem moves to compel further responses as follows:

The court will discuss these controversies on order.

Form Interrogatory No. 8.7 asks Mark, “State the total income you have lost as a result of the INCIDENT and how the amount was calculated.” (Separate Statement.) Mark objected, stating that it called for a damages analysis from an expert. (Separate Statement.) Transchem responds in its motion, “To the extent that certain categories of damages will have to be calculated and determined by an expert, the Plaintiff must specify what those categories are.” (Motion at p. 6.) But in opposition, Mark argues that this separate calculation of damages by category is beyond the call of the question. (Opposition at p. 4.)

The court partially agrees with Mark. Transchem does not now attempt to secure an answer formulated by expert testimony, but asks this court to order Mark to “list out all the category of damages that it seeks and the core information Plaintiff has that is relevant to the loss calculation” (Reply at pp. 3–4.) This is beyond the call of the question, which asks only for the total income lost. This decision does not prevent Transchem from propounding another interrogatory to Mark asking him identify the categories of income loss claimed and whether an expert will be retained for each category. However, Mark is still required to provide a response as to the amount of earnings lost. If he does not have a definite number, he must respond to the best of his ability.

The motion is Granted as to the amount of damages but otherwise DENIED.

Special Interrogatory No. 84 asked Mark, “If YOU seek to recover damages for mental or emotional distress as a result of the INCIDENT, IDENTIFY any HEALTH CARE PROVIDER, including any psychiatrist, psychologist, or therapist of any kind that examined or treated you in the last 10 years.” (Separate Statement.) Mark objects on the grounds that this information is privileged under Evidence Code § 1014. (Opposition at pp. 4–5 [psychotherapist-patient privilege].)

The interrogatory is not privileged. The psychotherapist-patient privilege by its terms applies to “a confidential communication between patient and psychotherapist.” (Evid. Code § 1014.) The interrogatory at issue here does not seek any communications between a patient and psychologist, but merely asks Mark to identify any who treated him. Because Mark’s objections do not obtain, the motion will be GRANTED as to this interrogatory.

Finally, Form Interrogatory No. 10.2, propounded to Sylvia, asked, “List all physical, mental, and emotional disabilities you had immediately before the INCIDENT. (You may omit mental or emotional disabilities unless you attribute any mental or emotional injury to the INCIDENT.)” (Separate Statement.) Sylvia objects to the ambiguity of the word “incident,” and also argues that the interrogatory asks for non-discoverable and irrelevant information, since her sole claim is for loss of consortium, i.e. “loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support,” and” [t]he loss of sexual relations,” rather than for any direct physical or mental injury. (Opposition at p. 5.) Transchem in turn argues that the interrogatory asks for relevant information, because information concerning physical, mental, and emotional disabilities may bear on her relationship with her husband, and this her claimed damages for loss of consortium. (Motion at p. 6.)

The court agrees with Transchem in part. Information on certain disabilities may bear on a loss of consortium claim, in the sense that pre-existing disabilities may themselves cause a loss of consortium, damages for which ought not to be borne by the party who did not cause the disability. For instance, a pre-existing disability may lead to “loss of sexual relations” apart from any injury caused by the conduct alleged in the Complaint, meaning that perhaps the defendant should not bear the damages for such loss. Sylvia acknowledges that the interrogatory may be proper in other personal injury cases, in which it “serves the purpose of identifying whether the alleged injury may have an alternative cause.” (Opposition at p. 5.) But that is precisely the case that Transchem makes in its motion, and Sylvia does not rebut this showing.

However, the court ultimately agrees with Sylvia that the use of “INCIDENT” in this particular interrogatory is insensible and prevents a reasoned response. “Incident” in the context of this interrogatory refers to “the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” (Motion Exh. A.) In this case, “incident” refers to decades-spanning pattern of exposure to alleged harmful chemicals culminating in Mark’s diagnosis of Cholangiocarcinoma in September 2015. (Complaint ¶ 18.) The broad definition of incident, combined with the long-form nature of the facts supporting Plaintiffs’ claims, renders an interrogatory asking for disability information from “immediately before” this “incident” unintelligible. It is unclear if Transchem wants to know about Sylvia’s disabilities from 1983 (immediately before first exposure), or from immediately before Mark first exhibited symptoms, or from immediately before Mark’s first diagnosis, or immediately before some other point in time. If Transchem wishes to obtain relevant information on this point, it ought to re-frame the interrogatory in a manner suitable for the facts of this case. The Motion is therefore DENIED as to Form Interrogatory No. 10.2.

  1. SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories or requests for production of documents, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h).)

Transchem seeks $4,695.00 in total sanctions for its motions, representing 25.8 hours of attorney work at $175 per hour, plus $180 in filing fees. (Petrosyan Decl. ¶ 13.)

The court DENIES sanctions. Transchem only prevailed on one motion, that related to Special Interrogatory No. 84. Plaintiffs’ objections were offered in good faith.