Personal Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

E. Universal Fails to Negate Decedent’s Asbestos Exposure from 1981 to 1982
Universal in its motion makes no mention of Tina Gomez’s alleged exposure to asbestos when David Plaza worked at the Universal-owned and operated West Facility from 1981 to March 1982. Universal admits that it owned and operated the West until March 1, 1982. The West Facility Sublease between Universal and Unity confirms this because the lease term began on March 1, 1982. Universal shows no lack of proof that, assuming it exposed Tina Gomez to asbestos from 1981 to March 1982, such exposure in reasonable medical probability was a substantial factor in increasing the risk of her developing the mesothelioma that killed her.

Universal submits no evidence to the contrary. First, Universal provides no franchise agreement for the West Facility. Second, Universal’s former employees, Richard Leevers and Edwin Ferguson, and Custodian of Records, Linda Snowball, do not recall ever seeing such a franchise agreement. Third, paragraph seven of the Leevers Declaration is based on the hearsay statements of Jeff Gordon, rather than from Mr. Leevers’ personal knowledge. .

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

2. Holdgrafer v. Unocal

In Holdgrafer, decided by the Court of Appeal for the Second District, the defendant was Unocal, an oil company that owned a network of undergrounds oil pipes throughout California. The plaintiffs, who owned a plot of land adjacent to one of Unocal’s facilities, claimed that their property had become contaminated by oil leaks from Unocal’s facilities. A jury awarded $2.5 million in compensatory damages.

In support of their punitive damages claim, the plaintiffs introduced evidence of two other oil spills that had occurred elsewhere in California. Those spills caused considerable damage to wildlife and wetlands, and there was evidence that Unocal had intentionally concealed the severity of the contamination and its own responsibility. Like the plaintiff in State Farm, the Holdgrafer plaintiffs justified their introduction of this evidence by arguing that it undermined Unocal’s claims of innocent mistake: they contended that Unocal’s conduct toward them was part of a company policy of concealing its responsibility for oil leaks and spills. At one point, for example, plaintiffs’ counsel asked the jury: You gonna buy this story that they’re giving you that it’s just a simple act of negligence, that all this evidence that we put on of the [other] spill[s] and the misrepresentations … is just simple negligence? I got a word for it. Baloney. 160 Cal. App. 4th at 934.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

C. Universal Fails to Meet Its Initial Burden in Moving for Summary Judgment
Universal in its moving papers was required to affirmatively establish not only that plaintiffs do not have a prima facie cause of action, but also that plaintiffs cannot reasonably expect to present one at trial. [Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.] Code of Civil Procedure section 437c(p)(2) precludes the burden of producing evidence of a triable factual issue from ever shifting to a plaintiff unless the moving defendant first makes the required showing that one or more elements of each cause of action cannot be established. [Scheiding, supra, 69 Cal.App.4th 64, 70.] Universal fails to establish that it ever propounded state-all-facts interrogatories or simply comprehensive discovery eliciting all of plaintiffs’ evidence in support of all of the complaint’s causes of action. It therefore follows that Universal does not show that plaintiffs served factually devoid responses to any such all-encompassing discovery. [Id.] This deficiency in itself requires that the motion be denied.[FN5]
D. Universal is Liable Under a Strict Products Liability Theory

There are triable factual issues as to whether Universal is liable to plaintiffs under a strict liability theory – either on a consumer expectation defect or a failure to warn theory. Universal mistakenly asserts that it is not subject to the complaint’s strict liability cause of action because it did not supply any asbestos-containing product to the West Facility. However, Universal ignores the fact that its stores serviced and sold brakes.

California has adopted Restatement (Second) of Torts section 402A. [Barth v. B.F.Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 250.] It applies to any person engaged in the business of selling products for use or consumption which includes any manufacturer, wholesale or retail dealer or distributor. [Id. at com. f.]

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

1. State Farm v. Campbell

The first case to explicitly discuss the use of other acts evidence for purposes of assessing reprehensibility in punitive damages trials was the United States Supreme Court’s decision in State Farm. That case was a suit against an insurance company brought by one of its former policyholders for bad-faith failure to settle a personal-injury claim against the policyholder.

The jury found for the plaintiff on compensatory liability and damages. During the punitive phase, State Farm defended by asserting that its initial refusal to settle was an honest mistake. The plaintiff countered by introducing evidence showing that State Farm had a policy of stonewalling in cases like his: the plaintiff alleged that for 20 years, State Farm had engaged in a national scheme to meet corporate fiscal goals by capping payouts on claims company wide. (538 U.S. at 415.) Over State Farm’s objections, the trial judge allowed this evidence so that the jury could determine whether State Farm’s conduct in the Campbell case was indeed intentional and sufficiently egregious to warrant punitive damages – i.e., because the court thought it bore on the reprehensibility of State Farm’s conduct toward the Campbells. Id. The jury evidently believed that State Farm’s conduct was reprehensible: it returned a $145 million punitive damages award.

After several levels of appeals, the U.S. Supreme Court granted certioriari and vacated the punitive award. The Court did not question the jury’s evident conclusion that State Farm’s corporate practices were reprehensible, but it held that the Constitution does not permit juries to use punitive damages awards in individual lawsuits to punish nationwide behavior directed at large groups of theoretical plaintiffs.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

B. Universal’s Motion for Summary Adjudication is Fatally Flawed

Code of Civil Procedure section 437c(f)(1) only permits courts to summarily adjudicate that one or more causes of action has no merit, there is no defense to one or more causes of action, a claim for punitive damages has no merit, or one or more defendants either owed or did not owe a duty to the plaintiff. When summary adjudication is sought, both the moving party’s notice of motion and separate statement must specify verbatim the specific cause of action, affirmative defense, claims for damages, or issues of duty sought to be adjudicated and the separate statement must tie each undisputed material fact to the particular claim, defense or issue sought to be adjudicated. [Cal. Rules of Court, rules 3.1350(b), (d) and (h).] There is a very important reason for these requirements: A party opposing a summary-adjudication motion is entitled to notice not only of the causes of action, claims or issues in dispute, but also of the alleged facts and evidence purportedly supporting summary adjudication of each such cause of action, claim or issue. [Gonzales v. Super. Ct. (1987) 189 Cal.App.3d 1542, 1546.] Universal in its Notice of Motion fails to state the specific cause(s) of action, affirmative defense(s), claim(s) for damages, or issue(s) of duty for which adjudication is sought.

(The discovery issues presented here are common to most personal injury cases.)

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Defendant’s Bench Brief on the Relevance of “Dissimilar Conduct” Evidence to “Reprehensibility”

Plaintiff acknowledges, as she must, that there has been a sea change in the governing constitutional law since this case was tried in 2002. The United States Supreme Court has now held – and the California Supreme Court and the Court of Appeal for the Second District have recognized – that a jury in an individual lawsuit may not impose punitive damages to punish conduct that did not harm the plaintiff. (See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); Philip Morris USA v. Williams, 549 U.S. 346 (2007); Johnson v. Ford Motor Co., 35 Cal. 4th 1191, 1203-04 (2005); Holdgrafer v. Unocal Corp., 160 Cal. App. 4th 907 (2008); M. v. Philip Morris USA Inc., 159 Cal. App. 4th 655, 701 (2008)).

Nevertheless, plaintiff claims that she is permitted to try the same case as she did in 2001 – when the proceedings were dominated by evidence of conduct that could not have harmed Nancy M. – because such evidence is relevant to demonstrate the reprehensibility of the conduct that did harm her. For plaintiff, reprehensibility has become a magic word: in her view, once a jury has determined that USA Tobacco harmed Ms. M., any arguably “reprehensible” conduct the company ever committed – no matter how tangentially related to Ms. M.’s actual injuries – can be paraded before the jury to underlie a claim for punitive damages.

But reprehensibility is not a magical incantation that allows in all bad company evidence. The jury’s task is to assess reprehensibility of the conduct that harmed the plaintiff, not the world at large. Plaintiff rarely cites actual case law in support of her that bears on reprehensibility argument. That is because the cases that discuss the relevance of this sort of evidence are all cases in which the appellate courts reversed – either by massively reducing punitive awards on appeal, or by granting new trials altogether.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

DISCUSSION
A. Moving Defendant’s Burden of Proof
A party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. [Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.] This means the moving defendant must persuade the court that if the defendant’s evidence is uncontroverted, no reasonable trier of fact could find for the plaintiff. [Id. at 851.] Only if the defendant makes that showing does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. [Id.]
A defendant has not met its burden unless it has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. [Id. at 854 (emphasis in original).] A moving defendant must make an affirmative showing that the plaintiff lacks the needed evidence; simply pointing to a claimed absence is not enough. [Id. at 854-855.] In ruling on the motion, the court must consider and view, in the light most favorable to the opposing party, all of the evidence and inferences reasonably drawn therefrom. [Id. at 844.] Declarations of the moving party are strictly construed, while declarations of the party opposing the motion are liberally construed. [Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832.]
Nor is it enough to merely assert that plaintiff failed to provide detailed information. The defendant must prove that plaintiffs failed to provide meaningful responses to comprehensive interrogatories designed to elicit all the evidence plaintiffs had to support their contention of liability. [Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1442; see also Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64 (burden did not shift where the interrogatories contained no questions aimed specifically at the presence or absence of the defendant at jobsites).] Also, the moving party must demonstrate … that there is no evidence to support an element of the opponent’s case … If a party contends some particular issue of fact has no support in the record, it must set forth all the material evidence on the point and not merely the evidence favorable to it. [Rio Linda Unified School Dist. v. Super. Ct. (1997) 52 Cal.App.4th 732, 740-741.]

(The discovery issues presented here are common to most personal injury cases.)

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