(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)
H. Universal Fails to Negate Plaintiffs’ Fraud/Conspiracy and Punitive Damages Claims
To satisfy its initial burden, Universal must either negate a necessary element of each of plaintiffs’ causes of action or demonstrate that under no hypothesis is there a material issue of fact that requires the process of trial. [Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674.] Universal fails to show with competent evidence any lack of proof that Tina Gomez was exposed to Universal’s asbestos-containing, or otherwise, defective product. Regardless, plaintiffs need not prove that Ms. Gomez was exposed to asbestos from Universal products to recover against Universal for injuries stemming from its participation in a conspiracy to suppress from Ms. Gomez, and others similarly situated, material information about asbestos-related health hazards. Hence, Universal may be liable to plaintiffs here from Ms. Gomez’s exposure to any asbestos from any source as a result of the conspiracy in which Universal participated.
The elements of a civil conspiracy are an agreement, a wrongful act by any of the conspirators pursuant to the agreement, and damages. [Stone v. Regents of University of Cal. (1999) 77 Cal.App.4th 736, 748 fn. 9 (emphasis added).] The active concealment of facts by even a non-fiduciary (such as Universal here) is the equivalent of a false representation, i.e., actual fraud. [5 Witkin, Cal. Procedure (4th ed. 1997) Pleading § 678, p. 136 (emphasis added).] In a case directly on point, it was held that a viable fraud cause of action was stated against multiple defendants who were accused of having intentionally concealed the ingredients of a defective product. [Quirici v. Freeman (1950) 98 Cal.App.2d 194, 201; Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 964; Committee on Children’s Television v. General Foods (1983) 35 Cal.3d 197, 218-219.]
Likewise, punitive damages may be based upon fraudulent conduct, and upon a defendant’s knowing failure to warn of hazards. [Civ. Code § 3294; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 40091.]
Universal shows no lack of proof that it knowingly concealed asbestos-related hazards associated with its products. Indeed, none of the 26 purported facts in Universal’s separate statement address, involve, or discuss plaintiffs’ fraud, conspiracy-to-defraud and punitive damages claims.
I. Universal Fails to Negate Plaintiffs’ Enterprise Liability Claims
Universal likewise fails to show any lack of proof that its asbestos-containing products were fungible, meaning they were unidentifiable as Universal products. As one court in a similar asbestos-injury lawsuit has recognized, a plaintiff alleging exposure to asbestos in fungible, unidentifiable products within a specific market segment may state a market-share cause of action by joining defendants that manufactured a substantial percentage of those products without directly showing that the plaintiff was exposed to asbestos in each manufacturer’s product [Wheeler v. Raybestos-Manhattan (1992) 8 Cal.App.4th 1152, 1155-1158.] Here, Universal fails to show that plaintiffs lack and cannot obtain evidence in support of their enterprise/market-share liability claims. Instead, Universal focuses on whether there is evidence of exposure to its asbestos-containing products, which is not an essential element of these claims.
The Court must deny Universal’s motion because Universal fails to show that plaintiffs lack and cannot obtain evidence in support of one or more elements of each of cause of action and triable factual issues exist as to whether Universal exposed Tina Gomez to asbestos.
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