Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
Plaintiffs’ Memorandum of Points and Authorities in Support of Opposition to the Universal Tire & Rubber Company’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication
I. INTRODUCTION
The Universal Tire Company ( Universal ) in moving for summary judgment or, alternatively, summary adjudication ignores that it has the initial burden to prove that plaintiffs lack and cannot obtain evidence in support of at least one essential element of every cause of action. Universal fails to prove that it propounded comprehensive discovery seeking all information in support of plaintiffs’ claims or that plaintiffs provided factually devoid responses. Also, while Universal asserts an absence of evidence of decedent Tina Gomez’s exposure to asbestos from March 1982 to 1983, it ignores her alleged exposure to asbestos from Universal’s products and negligence between 1981 and March 1982. Plaintiffs allege that Ms. Gomez was exposed to asbestos through live-in boyfriend David Plaza who brought home toxic asbestos dust from a Universal service center on West Avenue in Roseville, California ( West Facility ). Universal admits that it owned and operated the West Avenue facility until March 1982, its company-owned stores removed and installed asbestos-containing brakes and Universal controlled the operative details of the work at its company-owned stores. Mr. Plaza did brake work at the West Facility and he came home to Ms. Gomez in a Universal uniform laden with black dust. She shook the dust off his uniforms and washed them once a week. Universal fails to negate or show any lack of proof that Ms. Gomez’s exposure to asbestos while Universal owned the West Facility between 1981 and March 1982 was a legal cause of the mesothelioma that killed her.Univeral’s motion is fatally flawed in other respects. First, Universal ignores that it is liable under a strict products liability theory because its role as an installer and seller of asbestos-containing brakes places it in the vertical chain of distribution of a defective product. Second, Universal offers no admissible evidence to support its claim that, as a franchisor, it did not control the operative details of the work at the West Facility.
Third, Universal fails to provide a copy of any franchise agreement between Universal and Unity Auto Service Center, Inc. (Unity) for the West Facility, thus there is a triable factual issue as to whether the West Facility was a Universal franchise. Even if the Court assumes that the West Facility was a Universal franchise, plaintiffs’ additional evidence raises triable factual issues as to whether Universal completely or substantially controlled the franchise’s operations. In fact, Universal admits that it wanted its franchises to operate and look like a Universal-owned store to maximize profitability. Finally, Universal ignores that under several of the complaint’s causes of action (including, but not limited to, the causes of action for fraud, conspiracy to defraud and concert of action), Universal may be held liable upon proof that Ms. Gomez was exposed to asbestos from any source – and not necessarily from a Universal-supplied product – as a result of Universal having fraudulently suppressed information about asbestos-related health hazards or having conspired with others to do so. Accordingly, the Court must deny Universal’s motion. (See Part 2 of 14.)
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