SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

LINDA DEISTER & CHRISTOPHER DEISTER,

Plaintiffs,

vs.

ASBESTOS CORPORATION, LTD., et al.,

Defendants.
Case No. 2018-1-CV-327331

TENTATIVE RULING RE: MOTION FOR SUMMARY JUDGMENT

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on January 18, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

According to the allegations of the Complaint, filed on April 27, 2018, plaintiff Linda Deister was exposed to asbestos, which has caused injuries to her including cancer. (Complaint, ¶¶ 13-16.) Defendants in this case are alleged to be connected to products and equipment containing asbestos or provided a workplace at which Linda Deister was exposed to asbestos. (Complaint, ¶¶ 9-10, 36-38.)

The Complaint sets forth the following causes of action: (1) Negligence; (2) Strict Liability; (3) Negligence; (4) Concert of Action; and (5) Loss of Consortium. Defendant Special Electric Company, Inc. (“Defendant”) now moves for summary judgment.

II. REQUEST FOR JUDICIAL NOTICE

Defendant requests judicial notice of the following:

(1) Articles of Incorporation for Defendant;

(2) Certificate showing Defendant was incorporated in Wisconsin on July 5, 1957, and dissolved effective September 11, 2012;

(3) “Certificate of Administrative Dissolution” for Defendant;

(4) Copies of certain Wisconsin statutes;

(5) The April 13, 2016, order in Thomas Morehouse, et al. v. Special Electric Company, Inc., et al., Dane County Circuit Court (Wisconsin) Case No. 14 cv 1154;

(6) The May 10, 2016, Notice of Appeal from the April 14, 2016, order;

(7) The August 5, 2016, Notice of Voluntary Dismissal of the appeal;

(8) The October 7, 2016 Minute Order denying the request to reopen Defendant’s bankruptcy; and

(9) The February 10, 2017, Order in Hart v. Certainteed Corporation, et al., Alameda Superior Court Case No. RG16833060.

The Court can take judicial notice of the first three documents pursuant to Evidence Code section 452, subdivision (h), facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (See also Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1236, n. 2.) The fourth item is subject to judicial notice as the statutory law of Wisconsin. (Evid. Code, § 452, subd. (a).)

The remaining documents, which relate to decisions by other trial courts, are not binding on this Court and are therefore not relevant to this Court’s decision. The Court will not take judicial notice of them because only relevant material is subject to judicial notice. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal. 4th 1057, 1063 [Although a court may judicially notice a variety of matters, only relevant material may be noticed.].)

Defendant’s request for judicial notice is GRANTED IN PART AND DENIED IN PART. The Court will take judicial notice of the first four items for which judicial notice is requested, but not the other five items.

III. DISCUSSION

Defendant asserts it is a dissolved Wisconsin corporation. Defendant argues it is no longer subject to lawsuits in Wisconsin under Wisconsin’s corporate survival statutes, and therefore is not subject to suit in California, which honors the validity of sister state survival statutes.

Defendant provides evidence it was incorporated in Wisconsin. (Defendant Special Electric Company, Inc.’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“UMF”), No. 1.) Defendant was dissolved effective September 11, 2012, by the State of Wisconsin. (UMF, No. 2.) On May 8, 2014, a “Notice of Dissolution of Special Electric Company, Inc.” was published in three Wisconsin newspapers of general circulation. (UMF, No. 3.) These facts are undisputed by plaintiffs Linda Deister and Christopher Deister (collectively, “Plaintiffs”).

Under Wisconsin law, “[a] dissolved corporation may publish notice of its dissolution and request that persons with claims, whether known or unknown, against the corporation or its directors, officers or shareholders, in their capacities as such, present them in accordance with the notice.” (Wis. Stat., § 180.1407, subd. (1).) If a dissolved corporation publishes a newspaper notice in accordance with subd. (1), “a claim against the dissolved corporation or its directors, officers or shareholders is barred unless the claimant brings a proceeding to enforce the claim within 2 years after the publication date of the newspaper notice. . . .” (Wis. Stat., § 180.1407, subd. (2).)

Defendant’s evidence shows it complied with Wisconsin law by publishing a notice of dissolution. The Wisconsin statute is binding here because “California’s survival statute, [Corp. Code] section 2010, does not apply to foreign corporations.” (Greb v. Diamond Internat. Corp. (2013) 56 Cal.4th 243, 272.) Plaintiffs filed their Complaint on April 27, 2018, more than two years after Defendant published its Notice of Dissolution.

Plaintiffs argue their claims are not time-barred because the terms “claim” and “claimant” are not defined in Wisconsin’s corporation or dissolution statutes and the use of the present tense to describe a “claim” in the Wisconsin survival statute indicates that statute only applies to existing claims. In other words, Plaintiffs contend only claims that have accrued during the two year period following the newspaper notice are barred. Plaintiffs state Linda Deister was diagnosed with mesothelioma following the two-year period, and so she did not have a claim during the notice period. Plaintiffs cite cases related to the accrual of claims generally for statute of limitations periods, but cite no authority specifically supporting their interpretation of the Wisconsin survival statute.

In a case cited by Defendant, a court explained the difference between a statute of limitations and a statute of repose:

Statutes of repose operate differently from statutes of limitations. A statute of limitations usually establishes the time frame within which a claim must be initiated after a cause of action actually accrues. A statute of repose, by contrast, limits the time period within which an action may be brought based on the date of an act or omission. A statute of repose does not relate to the accrual of a cause of action. In fact, it may cut off litigation before a cause of action arises.

(Wenke v. Gehl Co. (2004) 274 Wis.2d 220, 253, emphasis in original, quoting Hamilton v. Hamilton (2003) 261 Wis.2d 458, 474.)

In Wisconsin, the dissolution statute is not considered a statute of limitations. (See Bazan v. Kux Mach. Co. (1971) 52 Wis.2d 325, 336 [construing a predecessor to the statute].) Rather, the limitation on actions against dissolved corporations is interpreted “in terms of the capacity to sue or be sued, rather than in terms of a statute of limitation.” (Id. at p. 337.) Therefore, the Wisconsin survival statute is essentially a statute of repose, cutting off the right to bring any action against a dissolved corporation two years after the corporation complies with section 180.1407.

As stated previously, Defendant complied with section 180.1407 and Plaintiffs did not file their Complaint until more than two years after Defendant published its Notice of Dissolution. Therefore, the evidence shows Plaintiffs’ action is barred.

Plaintiffs also argue that, in the Greb case, the California Supreme Court only stated the California survival statute does not apply to foreign corporations, but left open the possibility that the California survival statute would apply to a “pseudo-domestic” corporation. Plaintiffs state it is possible additional discovery could demonstrate most of Defendant’s business was conducted in California, making it a pseudo-domestic corporation.

Plaintiffs have produced no evidence supporting the contention that Defendant could be a pseudo-domestic corporation. It is settled law in California that “responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Not only are Plaintiffs speculating regarding the status of Defendant as a pseudo-domestic corporation, Plaintiffs have presented no evidence at all supporting this theory.

In sum, Defendant has met its initial burden by presenting evidence it complied with Wisconsin’s survival statute and Plaintiffs have failed to raise a triable issue of material fact in that regard. Accordingly, Defendant’s motion for summary judgment is GRANTED.

The Court will prepare the final order if this tentative ruling is not contested.

NOTICE: The Court does not provide court reporters for proceedings in the complex civil litigation departments. Parties may arrange for a private court reporter to provide services, but those arrangements must be consistent with the local rules and policies posted on the Court’s website.