Case Number: BC498745    Hearing Date: January 05, 2015    Dept: 58

Judge Rolf M. Treu
Department 58
Hearing Date: Monday, January 5, 2015
Calendar No.: 6
Case Name: Allsop v. 3M Company, et al.
Case No.: BC498745
Motion: Motion for Summary Adjudication
Moving Party: Defendant Justice Brothers, Inc.
Responding Party: Plaintiff William Allsop
Notice: OK

Tentative Ruling: Motion for summary adjudication is denied.

On 1/9/13, Plaintiff William Allsop filed this action against various Defendants arising out of alleged toxic exposure to benzene-containing products while employed at various locations in California from 1974 to 2004 (mostly as a mechanic). Plaintiff asserts causes of action for (1) negligence and (2) strict liability. Trial is set for 1/12/15; FSC for 1/5/15.

Motion for Summary Adjudication –
Justice Brothers, Inc. moves for summary adjudication of Plaintiff’s punitive damages claim. “[S]ummary judgment ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.’” Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1053 (quoting Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 60-61).

1. Factually Devoid Discovery Responses
Justice Brothers argues that Plaintiff cannot establish entitlement to punitive damages based on malice, oppression or fraud (Civil Code § 3294(c)) or of conduct by, authorized, or ratified by a corporate officer, director, or managing agent (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573; Civil Code § 3294(b)). Justice Brothers’ motion is based entirely on Plaintiff’s discovery responses, which Justice Brothers argue are factually devoid of material facts (see, e.g., Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 102-3; Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439-40).

However, Plaintiff’s discovery responses identified readily available public information concerning the dangers of benzene and that, notwithstanding this information, Justice Brothers engaged in a promotional campaign whereby a tainted token to be used for discounts on other purchases was placed inside containers but was only retrievable by using one’s hands. Pl.’s Supp. Response to Special Interrogatory No. 21 [Zech Decl. Ex. D p. 6:1-7:24]. This is not a factually devoid discovery response sufficient to shift the burden of production to Plaintiff. Therefore, the motion for summary adjudication is denied.

2. Plaintiff’s Opposition Evidence
In opposition, Plaintiff has attempted to submit evidence in support of his discovery response to raise triable issues of fact. See Kopstein Decl. ¶ 18 [Smith Decl. Ex. 3] (concerning public available information); Pl.’s Depo. p. 998:17-999:16, 1000:16-1002:15 [Smith Decl. Ex. 1] (concerning Justice Brothers’ promotional campaign and how Plaintiff retrieved the token). Additionally, Plaintiff has attempted to submit evidence that Justice Brothers only retains payroll records pursuant to a three-year document retention policy (Muinos Depo. p. 73:8-74:6 [Smith Decl. Ex. 4]), in order to explain Plaintiff’s lack of specific information concerning Justice Brothers’ awareness of the dangers of benzene and its promotional campaign for the tokens.

Justice Brothers has objected to Plaintiff’s evidence based on the lack of a penalty declaration by Plaintiff’s counsel (CCP § 2015.5) as well as various substantive objections to Plaintiff’s evidence. The Court sustains the objections, but concludes that it is not necessary to consider Plaintiff’s evidence based on Justice Brothers’ failure to shift the burden of production.