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This case was last updated from Los Angeles County Superior Courts on 11/26/2019 at 16:20:40 (UTC).

WILLIAM DWIGHT TOUCHBERRY ET AL VS DOES 1 TO 250

Case Summary

On 02/13/2018 WILLIAM DWIGHT TOUCHBERRY filed an Other - Environment lawsuit against DOES 1 TO 250. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RAFAEL A. ONGKEKO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3844

  • Filing Date:

    02/13/2018

  • 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 Judge

RAFAEL A. ONGKEKO

 

Party Details

Plaintiffs and Petitioners

TOUCHBERRY LAURIE

TOUCHBERRY WILLIAM DWIGHT

Defendants and Respondents

DOES 1 TO 250

GPC INTERNATIONAL INC. DOE 3

RUST-OLEUM CORPORATION DOE 6

THE SHERWIN-WILLIAMS COMPANY AS SUCCESSOR BY ACQUISITION TO KRYLON PRODUCTS GROUP DOE 9

THE SHERWIN-WILLIAMS COMPANY AS SUCCESSOR BY ACQUISITION TO THE VALSPAR CORPORATION DOE 10

THE SHERWIN-WILLIAMS COMPANY DOE 8

CREATIVE ART MATERIALS LTD. DOE 2 FKA CREATIVE CHEMICAL SOLUTIONS LTD.

UNION RUBBER INC. DOE 12

RUST-OLEUM CORPORATION AS SUCCESSOR BY ACQUISITION TO THE TESTOR CORPORATION DOE 7

PACKAGING SERVICE CO. INC. DOE 5

MASTERCHEM INDUSTRIES LLC DOE 4

WALMART INC. DOE 13

3M COMPANY DOE 1

SUNNYSIDE CORPORATION DOE 11

WD-40 COMPANY DOE 14

BIC CORPORATION DOE 15

SIX ROBBLEES' INC. AS SUCCESSOR IN INTEREST TO UNION RUBBER CO. INC.

Attorney/Law Firm Details

Plaintiff, Petitioner and Defendant Attorneys

METZGER RAPHAEL ESQ.

WHELAN KEVIN E

QUINONES JOSHUA A

HURRELL THOMAS CHARLES

SULLIVAN KAREN MARGARET

MUENCH RICHARD A

TOBIN THOMAS J.

WOLENSKY GARY A

PATTERSON CHRISTOPHER SEAN

YOUSEFIAN ARMINEH

LAMOND CHRISTIAN F

BOOTH JASON M.

 

Court Documents

Association of Attorney

11/14/2019: Association of Attorney

Notice - NOTICE TO MEDICARE

10/30/2019: Notice - NOTICE TO MEDICARE

Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURR...)

6/19/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURR...)

Reply - REPLY REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT

6/12/2019: Reply - REPLY REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT

Case Management Statement

6/4/2019: Case Management Statement

Case Management Statement

6/5/2019: Case Management Statement

Opposition - OPPOSITION TO RUST-OLEUM MTS

6/6/2019: Opposition - OPPOSITION TO RUST-OLEUM MTS

Opposition - OPPOSITION TO SHERWIN WILLIAMS DEMURRER

6/6/2019: Opposition - OPPOSITION TO SHERWIN WILLIAMS DEMURRER

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE WESLEY CONCEPCION, CSR#13383

5/29/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE WESLEY CONCEPCION, CSR#13383

Answer

5/8/2019: Answer

Case Management Statement

4/15/2019: Case Management Statement

Case Management Statement

4/15/2019: Case Management Statement

Declaration - DECLARATION OF KAREN M. SULLIVAN IN SUPPORT OF RUST OLEUM CORPORATIONS MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT

4/4/2019: Declaration - DECLARATION OF KAREN M. SULLIVAN IN SUPPORT OF RUST OLEUM CORPORATIONS MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT

Motion to Strike (not anti-SLAPP) - without Demurrer

4/4/2019: Motion to Strike (not anti-SLAPP) - without Demurrer

Notice of Appearance

4/5/2019: Notice of Appearance

Proof of Personal Service

3/21/2019: Proof of Personal Service

Proof of Personal Service

3/21/2019: Proof of Personal Service

Proof of Personal Service

3/21/2019: Proof of Personal Service

114 More Documents Available

 

Docket Entries

  • 06/08/2020
  • Hearing06/08/2020 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 05/26/2020
  • Hearing05/26/2020 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/18/2019
  • DocketNotice of Entry of Dismissal and Proof of Service; Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 11/14/2019
  • DocketAssociation of Attorney; Filed by The Sherwin-Williams Company (DOE 8) (Defendant); The Sherwin-Williams Company, as successor by acquisition to Krylon Products Group (DOE 9) (Defendant); The Sherwin-Williams Company, as successor by acquisition to the Valspar Corporation (DOE 10) (Defend

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  • 11/12/2019
  • DocketRequest for Dismissal; Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 10/30/2019
  • DocketNotice (TO EMPLOYER OF THIRD PARTY ACTION PURSUANT TO LABOR CODE 3853); Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 10/30/2019
  • DocketNotice (Plaintiffs' Notice to Medi-Cal); Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 10/30/2019
  • DocketNotice ( TO MEDICARE); Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 10/11/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 09/27/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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134 More Docket Entries
  • 03/12/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE AND FURTHER CASE MANAGEMENT ORDER AND NOTICE FROM DEPT. 73

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  • 03/12/2018
  • DocketNotice of Case Management Conference; Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 03/01/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/01/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/13/2018
  • DocketCOMPLAINT FOR TOXIC INJURIES ASSERTING CAUSES OF ACTION FOR: (1) NEGLIGENCE; ETC

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  • 02/13/2018
  • DocketPLAINTIFFS' INITIAL STATEMENT OF DAMAGES

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  • 02/13/2018
  • DocketCIVIL DEPOSIT

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  • 02/13/2018
  • DocketPLAINTIFFS' NOTICE OF POSTING JURY FEES

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  • 02/13/2018
  • DocketComplaint; Filed by Laurie Touchberry (Plaintiff); William Dwight Touchberry (Plaintiff)

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  • 02/13/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC693844    Hearing Date: November 12, 2020    Dept: 73

11/12/2020

Dept. 73

Rafael Ongkeko, Judge presiding

WILLIAM DWIGHT TOUCHBERRY, et al. v. DOES 1-250 (BC693844)

Counsel for Plaintiff/opposing party: Raphael Metzger, Evan Cole (Metzger Law Group)

Counsel for Defendant/ moving party: Karen Sullivan, Kelley Mahoney (Manning Gross + Massenburg)

Other parties/counsel: Omitted.

DEFENDANT RUST-OLEUM CORPORATION’s Motion FOR SUMMARY JUDGMENT (filed 8/27/2020)

TENTATIVE RULING

The motion is denied.

Discussion

Plaintiffs William Dwight Touchberry (“Touchberry”) and Laurie Touchberry (“Laurie”) (collectively “Plaintiffs”) sued Defendants 3M Company (Doe 1), Creative Art Materials Ltd. (Doe 2), GPC International Inc. (Doe 3), Masterchem Industries LLC (Doe 4), Packaging Service Co.(Doe 5), Rust-Oleum Corporation (Doe 6),  Rust-Oleum Corporation as successor-by-acquisition to the Testor Corporation (Doe 7), The Sherwin-Williams Company (Doe 8), The Sherwin-Williams Company as successor-by-acquisition to Krylon Products Group (Doe 9), The Sherwin-Williams Company as successor-by-acquisition to the Valspar Corporation (Doe 10), Sunnyside Corporation (Doe 11), Union Rubber Inc. (Doe 12), Walmart Inc. (Doe 13), and WD-40 Company (Doe 14).

Between 1984 through the present, Touchberry worked as a graphic designer at various locations in Los Angeles.  Plaintiffs allege that Touchberry developed toxic injuries, including non-Hodgkin’s lymphoma, from his exposure to hazardous, carcinogenic chemicals such as benzene in Defendants’ products.   

On February 13, 2018, Plaintiffs filed this lawsuit against Does 1-250 for: 

C/A 1: By William against Defendants for Negligence 

C/A 2: By William against Defendants for Strict Liability (Failure to Warn) 

C/A 3: By William against Defendants for Strict Liability (Design Defect) 

C/A 4: By William against Defendants for Fraudulent Concealment 

C/A 5: By William against Defendants for Breach of Implied Warranties 

C/A 6: By Laurie against Defendants for Loss of Consortium 

On August 27, 2020 Defendant Rust-Oleum Corporation filed a motion for summary judgment on the grounds that Plaintiffs cannot establish that Defendant caused or contributed to Touchberry’s development of Non-Hodgkins Lymphoma. Accordingly, his spouse’s loss of consortium cause of action fails as a derivative claim. On October 29, 2020 Plaintiffs filed an opposition arguing that Defendant had not met its initial burden of proof, and even if it did, Plaintiffs submitted a near-300 page declaration by Plaintiffs’ expert, who opined that Touchberry’s exposure to Defendant’s product(s) caused or contributed to Touchberry’s injury. On November 6, 2020 Plaintiff filed a reply.

ANALYSIS

I. Evidentiary Objections

Defendant’s Objections to Plaintiff’s Exhibit D: The court overrules Defendant’s objection nos. 1-5.

Defendant’s Objections to Robert Harrison, M.D.: The court overrules Defendant’s objection nos. 1-4 (objection nos. 1, 3, and 4, in particular, are procedurally improper by combining numerous paragraphs together in one objection, rather than only objecting line by line and giving the court the specific reason for why each is objectionable).

II. Summary Judgment vs. Summary Adjudication

“A party may move for summary adjudication of issues, either by itself or as an alternative to summary judgment. If it appears that the proof supports the granting of the motion for summary adjudication as to some but not all the issues involved in the action, or that one or more of the issues raised by a claim is admitted, or that one or more of the issues raised by a defense is conceded, the court shall, by order, specify that those issues are without substantial controversy. Moreover, upon a motion for summary adjudication, the court shall, by written order or oral order recorded verbatim, specify those issues raised by the motion for summary adjudication as to which there exists a material, triable controversy, and shall specifically refer to the evidence which establishes a triable issue of fact regarding each of those issues ....” (Cal. Code. Civ. Proc. § 437c(f)).

“It is elemental that a notice of motion must state in writing the ‘grounds upon which it will be made.’” (Gonzales v. Superior Court (1987) 189 Cal. App. 3d 1542, 1545). “Only the grounds specified in the notice of motion may be considered by the trial court.” (Id.) “This rule has been held to be especially true in the case of motions for summary adjudication of issues.” (Id.)

“The language in Code of Civil Procedure section 437c, subdivision (f) makes it clear that a motion for summary adjudication cannot be considered by the court unless the party bringing the motion duly gives notice that summary adjudication is being sought.” (Id. at 1545–46). “If a party desires adjudication of particular issues or sub-issues, that party must make its intentions clear in the motion ....” (Id. at 1546). “There is a sound reason for this rule: ‘... the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues. It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied.’” (Id.) “The motion must be denied if the movant fails to establish an entitlement to summary adjudication of the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis to do so appears from the papers.” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 744).

Defendant’s notice of summary judgment only requests summary judgment, with no alternative summary adjudication relief. To the extent that one issue creates a triable issue of fact for any element of any cause of action, therefore, the entire motion must be denied.

III. Legal Standard for Summary Judgment

“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Id., § 437c, subd. (c).)

“A party may move for summary adjudication of issues, either by itself or as an alternative to summary judgment. If it appears that the proof supports the granting of the motion for summary adjudication as to some but not all the issues involved in the action, or that one or more of the issues raised by a claim is admitted, or that one or more of the issues raised by a defense is conceded, the court shall, by order, specify that those issues are without substantial controversy. Moreover, upon a motion for summary adjudication, the court shall, by written order or oral order recorded verbatim, specify those issues raised by the motion for summary adjudication as to which there exists a material, triable controversy, and shall specifically refer to the evidence which establishes a triable issue of fact regarding each of those issues ....” (Cal. Code. Civ. Proc. § 437c(f)).

A defendant moving for summary judgment/summary adjudication must show “that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also, Code Civ. Proc., § 437c, subd. (o).)

“The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing. But… the defendant must indeed present evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 [italics in original].) “In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action--for example, that the plaintiff cannot prove element X.” (Id., at 853.) The court in Aguilar distilled summary judgment to “a single proposition: If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case . . . the ‘court should grant’ the motion ‘and “avoid a . . . trial’ rendered ‘useless’ by nonsuit or directed verdict or similar device. (Id. at 855.)

As noted in Aguilar, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at 850.) Thus, courts usually follow a three-step analysis: “First, we identify the issues framed by the pleadings . . . . [¶] Secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. . . . [¶] When a . . . motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Ojavan Investors, Inc. v. Cal. Coastal Comm. (1997) 54 Cal.App.4th 373, 385 [citation and footnote omitted].)

The California Supreme Court has recently confirmed that the purpose of the 1992 and 1993 amendments to the summary judgment statute was “ ‘to liberalize the granting of [summary judgment] motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542.) It is no longer called a “disfavored” remedy. “Summary judgment is now seen as a ‘particularly suitable means to test the sufficiency’ of the plaintiff’s or defendant’s case.” (Ibid.)

Opposing parties must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances…, ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084.) “A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” (Hunter v. Pacific Mechanical Corp (1995) 37 Cal.App.4th 1282, 1286, disapproved on other grounds by Aguilar, supra, at 865; accord Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 [“‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’”].)

Courts “construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754; internal citation omitted.) "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236Cal.App.4th1378,1392.)

IV. Causation in Toxic Tort Cases

“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Cottle v. Superior Court (1992) 3 Cal. App. 4th 1367, 1384–85). “Mere possibility alone is insufficient to establish a prima facie case.” (Id.) “A possible cause only becomes 'probable' when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” (Id.)

As part of its initial prima facie burden of proof, Defendant offers a medical expert declaration (Dr. Gregory Sarna) opining that Defendant’s product did not cause Plaintiffs’ injuries.

Plaintiffs present their own medical expert, Dr. Robert Harrison, who submitted a near 300-page declaration that challenges Defendant’s expert on the following issues:

· While Touchberry did not use “the product benzene,” Defendant’s products were produced by means of fractional distillation of benzene-containing crude oil and, therefore, was contaminated with benzene. (RMF 33).

· The absence of benzene as a listed ingredient does not mean that products were not contaminated with benzene. (RMF 34 & 36).

· Defendant’s expert relies on outdated publications to conclude that painters do not have an increased risk of lymphoma. (RMF 30).

· Defendant’s expert ignored other studies that have shown that hobbyists also have reported increased risks of non-Hodgkin’s lymphoma.

· Defendant’s expert ignored studies showing that printers also have reported a higher risk of non-Hodgkins lymphoma.

· Defendant’s expert ignored the association of toxic chemical exposure and IgH chromosomal translocations, which characterize the type of lymphoma Touchberry has.

In reply, Defendant then challenges Plaintiffs’ expert’s opinion as follows:

· Plaintiffs’ expert cannot know whether benzene was present in Defendant’s products.

· Plaintiffs’ expert does not cite a study directly relating to graphic artists or designers.

· None of the studies on which Plaintiffs’ expert relies is exactly on point on the specific facts of this case.

Defendant, however, makes these challenges as arguments in its reply memorandum, but does not actually submit an expert declaration that opines that Plaintiffs’ expert’s opinion is improper or unreliable.

As the competing challenges show, what is glaringly missing from these arguments is any authority regarding the acceptable type of studies/evidence/surveys that scientists reasonably rely to form opinions in toxic tort cases. Defendant’s motion is thin on authority regarding the actual scientific evidence/literature that is admissible in toxic tort cases (e.g., how reliable and what weight do other experts give on surveys relating to similar products or similar types of lymphomas?) Defendant does not brief case examples on the types of evidence that courts have admitted in these cases with an analysis on how the foundational basis of Defendant’s expert’s testimony meets that standard. Defendant’s expert’s testimony that he relied on literature and citation to a handful of studies and surveys and Plaintiff’s expert testimony, in which both challenge the reliability of the other, without any explanation on the methodology and material that experts in this field reasonably rely or accept does not assist the court at all. Defendant’s expert testimony is silent on the types of literature and studies that are generally accepted or reasonably relied upon in forming these opinions. Such testimony does not meet the Sargon admissibility test. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal. 4th 747, 771-72).

As our Supreme Court held: “The trial court's preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness.” (Id. at 772). “The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion.” (Id.) “The court does not resolve scientific controversies.” (Id.) A trial court must act as “a gatekeeper” under sections 801(b) and 802 “to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which an expert relies or (3) speculative.” (Id. at 771-772). Accordingly, courts should conduct a “’circumscribed inquiry’ to ‘determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert's general theory or technique is valid.’” (Id. at 772). The court’s role as a gatekeeper “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” (Id.)

Accordingly, without any information regarding the type of material/studies that experts in this field rely, and why Defendant’s expert’s testimony is non-speculative and even meets a minimal test of foundation, the court finds that Defendant has failed to meet its initial prima facie burden on a motion for summary judgment.

Even if the court assumes that Defendant has met its prima facie burden, the court finds that Plaintiff’s expert’s 296-page, 824-paragraph declaration (self-describing it in an understatement as “voluminous and complex”), which challenges the basis of Defendant’s expert’s testimony as one experts in the field would not reasonably rely, creates a triable issue of fact on causation.

The motion is denied. As Defendant has failed to meet its prima facie burden, Defendant’s alternative request to continue the motion to further depose Plaintiff’s expert is denied.

Notice of ruling by Plaintiffs.

Case Number: BC693844    Hearing Date: February 04, 2020    Dept: 73

2/4/2020

Dept. 73

Rafael Ongkeko, Judge presiding

WILLIAM DWIGHT TOUCHBERRY, et al. v. DOES 1-250 (BC693844)

MOTION TO TRANSFER ACTION TO ORANGE COUNTY SUPERIOR COURT (filed 1/8/20)

Moving party/joining parties:

Defendant Rust-Oleum Corporation (individually and as successor-by-acquisition to the Testor Corporation), joined by Defendants Wal-Mart Inc.; Creative Art Materials; The Sherwin-Williams Company (individually and as successor by acquisition of both Krylon Products Group and Valspar Corporation); Masterchem Industries LLC; and Sunnyside Corp.

Opposing parties:

Plaintiffs William Dwight Touchberry and Laurie Touchberry

TENTATIVE RULING

Defendant’s motion to transfer is DENIED.

Defendants Wal-Mart, Union Rubber Inc., The Sherwin-Williams Company, Masterchem Industries LLC, and Sunnyside Corporation’s joinder requests are denied as MOOT.

DISCUSSION

Summary of Issues

The Rust-Oleum Corporation Defendant moves to transfer this action to Orange County arguing that the transfer will promote the convenience of witnesses and the ends of justice. (Code of Civil Procedure section 395(a) and 397(c)) Defendants listed above all move to join.

Analysis

1. Convenience of Witnesses

If a motion to change venue is based on the grounds set forth under CCP § 397, including the ground of convenience of witnesses, the motion must be made within a reasonable time after the answer is filed, which is a question left to the court’s discretion. (Buran Equipment Co., Inc. v. Superior Court (1987) 190 Cal.App.3d 1662, 1665; Cooney v. Cooney (1944) 25 Cal.2d 202, 208.)

An untimely motion should not be denied unless the relief is being pursued for dilatory purposes and the opposing party can show substantial prejudice. (See Willingham v. Pecora (1941) 44 Cal.App.2d 289, 295 [holding denial of motion was proper when motion was made four months after trial date was set and granting motion would have delayed trial by five months].)

Here, the following chronology is pertinent:

· On December 11, 2018, Plaintiffs amended their complaint to add the Rust-Oleum Corporation (individually and as successor-by-acquisition to the Testor Corporation) as Doe Defendants.

· On April 4, 2019, Rust Oleum appeared and moved to strike portions of the complaint.

· On July 24, 2019, Plaintiffs served Defendants with Touchberry’s special interrogatory responses. (See JC Chimoures Decl. ISO Motion [“Chimoures Decl.”], ¶ 4, Ex. C.)

· On November 22, 2019, Touchberry’s deposition was completed.

· On January 8, 2020, Defendants filed this motion.

Defendant argues its motion is timely because it was not until Touchberry’s deposition was completed on November 22, 2019 (less than 2 months before filing this motion), that Defendants were able to determine that venue was improper, i.e., Touchberry: (1) identified additional witnesses during his testimony; and (2) contradicted the discovery response regarding the location of other witnesses previously identified.

Defendant’s motion lacks merit.

First, Defendants learned the majority of witnesses’ names, addresses, and phone numbers in Touchberry’s July 24, 2019 special interrogatory responses. (See Chimoures Decl., ¶ 4, Ex. C.) Notably, the portions of the deposition testimony transcript produced do not show Plaintiff identified any additional witnesses that reside or work in Orange County. (See id., ¶ 5, Ex. D.)

Second, Touchberry’s deposition testimony only clarified that: (1) he worked for Matthew S. Hunter at an Orange County office (not Los Angeles); and (2) Creative Circle LLC is a staffing agency. (See Chimoures Decl., ¶ 5, Ex. D.) Defendant fails to explain why these two minimal details warrant its six-month delay in moving to change venues.

Lastly, trial is four months away. Transferring this action will undoubtedly delay trial and cause prejudice to Plaintiffs. Accordingly, Defendants’ motion to transfer the action to Orange County is denied as untimely.

2. Even if the Motion Were Timely, Defendants Fail to Establish the Transfer Will Promote the Convenience of Witnesses and Ends of Justice

A plaintiff’s choice of venue is presumed to be proper. (Buran Equipment Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1666.) The court has discretionary power to transfer the case to any other county “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” (Code Civ. Proc., § 397(c).)

It is only the convenience of non-party witnesses that is important to the convenience analysis. Absent extraordinary circumstances, the parties’ convenience does not factor into the analysis, even if they were to testify. (Wrin v. Ohlandt (1931) 213 Cal. 158, 160.) Convenience of expert witnesses who may testify, but who had no personal knowledge of any facts in the case, is not a permissible consideration. (Ibid.)

The burden of proving both convenience of witnesses and ends of justice rests upon one seeking change of venue. (Edwards v. Pierson (1957) 156 Cal.App.2d 72, 74.) The moving party must submit declarations that show (1) the names of each witness expected to testify for both parties, (2) the substance of their expected testimony, (3) whether the witness has been deposed or has given a statement, (4) the reasons why it would be inconvenient for the witnesses to appear locally, and (5) the reasons why the ends of justice would be promoted by a transfer to a different county. (Juneau v. Juneau (1941) 45 Cal.App.2d 14, 15-16.) The declaration or affidavit should also show that the witnesses' proposed testimony is admissible, relevant, and material. (Peiser v. Mettler (1958) 50 Cal.2d 594.) The fact that the ends of justice would be served may be established by showing that transferring the case would avoid delay and court expenses and would save the witnesses time and expenses. (Pearson v. Superior Court, City and County of San Francisco (1962) 199 Cal.App.2d 69.)

A mere preponderance in the number of witnesses a party expects to produce will not necessarily determine the order to be made. (E.g., Minatta v. Crook (1959) 166 Cal.App.2d 750, 757; Harden v. Skinner and Hammond (1955) 130 Cal.App.2d 750, 754.) The convenience of witnesses whose testimony will be merely cumulative is entitled to little consideration. (See Corfee v. Southern California Edison Co. (1962) 202 Cal.App.2d 473, 477; International Inv. Co. v. Merola (1959) 175 Cal.App.2d 439, 446.)

Here, Defendants name 23 witnesses and list their last known addresses. (See Chimoures Decl., ¶ 6a-r, t-x.) Defendants purportedly obtained this information from Touchberry’s special interrogatory responses. (See id., ¶ 4, Ex. C.) However, seven of the 23 named witnesses are not actually identified in the special interrogatory responses, e.g., Leroy Lewis, Ray Baird, Drew Letendre, Allen Brew, Jill Kasinski, Nina Martin, Clair Markovsky. (Compare Chimoures Decl., ¶ 6d, m-r with id. ¶ 4, Ex. C, pp. 53-54.)

More importantly, despite having six months to reach out to the witnesses, Defendant has made no showing that the witnesses actually work in Orange County. All that is established is that, at some point in time, the named witnesses worked in Orange County. Without knowing the witnesses’ current addresses, the degree of inconvenience is speculative.

Even if the court overlooks the fact that the addresses are not current, it is unclear how much of the testimony will be cumulative. For instance, Defendant names 14 witnesses that will testify regarding Plaintiff’s work at Rieches Bard/Branding Business. (See Chimoures Decl., ¶ 6e-r.) Even though only one of the 14 witnesses listed was Plaintiff’s former supervisor, all the witnesses will purportedly testify regarding the same matter, i.e., product identification, exposure, work habits, and layout.

Similarly, the declaration names five of Touchberry’s medical providers who will testify regarding treatment and causation (and thus damages). (See id., ¶ 6t-x.) Without more specific information, the court can only speculate as to whether the testimony will be unnecessarily cumulative.

Defendant’s motion to transfer the action to Orange County is DENIED.

All joinder requests are also denied as MOOT.

Notice of ruling by Plaintiffs.

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