Laosd Asbestos Cases. Fermin Ramirez v. Avon Prods., Inc.

• Docket Number: B313982
• Decision Date: 23 January 2023
• Citation: 87 Cal.App.5th 939,304 Cal.Rptr.3d 179
• Parties: LAOSD ASBESTOS CASES. Fermin Ramirez, Individually and as Personal Representative, etc., Plaintiff and Appellant, v. Avon Products, Inc., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

87 Cal.App.5th 939

304 Cal.Rptr.3d 179

LAOSD ASBESTOS CASES.

Fermin Ramirez, Individually and as Personal Representative, etc., Plaintiff and Appellant,

v.Avon Products, Inc., Defendant and Respondent.

B313982

Court of Appeal, Second District, Division 8, California.

Filed January 23, 2023

Maune Raichle Hartley French & Mudd, David L. Amell, Berkeley, Marissa Y. Uchimura ; Law Office of Ted W. Pelletier and Ted W. Pelletier, Oakland, for Plaintiff and Appellant.

Foley & Mansfield, Keith M. Ameele, Margaret I. Johnson, Monrovia; Hawkins Parnell & Young, Claire C. Weglarz and Macy M. Chan, Los Angeles, for Defendant and Respondent.

STRATTON, P. J.

This case highlights the difficulties both sides encounter when litigating a latent injury possibly caused by exposure to a toxic substance 50 years ago. After Alicia Ramirez developed mesothelioma

, she and her husband Fermin Ramirez (the Ramirezes) brought this action in 2020 against a number of entities, including respondent Avon Products, Inc. (Avon).¹ Relying on a declaration from Lisa Gallo (Gallo Declaration), an employee who did not begin work at Avon until 1994, halfway through Alicia's alleged exposure period, Avon moved for and obtained summary judgment in its favor.

The Ramirezes appeal, contending the trial court erred in overruling their objections to the Gallo Declaration. The trial court found this declaration was the sole evidence which shifted the burden to the Ramirezes to produce evidence sufficient to create a triable issue of material fact. We agree the trial court abused its discretion in overruling the Ramirezes’ objections.

Avon contends that even if the Gallo Declaration was erroneously admitted, summary judgment should still be affirmed on the ground that the Ramirezes’ discovery responses were factually devoid. We find Avon failed to adequately develop this theory in the trial court and on appeal. It is forfeited. Because we find Avon did not shift the burden to the Ramirezes, we need not and do not consider the Ramirezes’ argument that the trial court erred in finding they failed to create a triable issue of material fact when they did not offer a statistical analysis showing it was more likely than not asbestos were in the Avon containers actually used by Alicia.

Avon requests that if we find erroneous the trial court's grant of summary judgment, we remand this matter for a ruling on Avon's motion for summary adjudication because this alternate motion is based on different facts, law and evidence. We do not agree and do not order a remand for this specific purpose.

We reverse the order granting summary judgment and the judgment and remand for further proceedings.

BACKGROUND

In her complaint, Alicia alleged she had been exposed to asbestos in several ways, including the use of asbestos-contaminated talcum powder produced by Avon.² Through her discovery responses, Alicia stated she had used Avon's Imari and Elusive talcum powder daily from the mid-1970's to 2007 and her daughter used Avon's Imari, Sweet Honesty and Odyssey talcum powder in the bathroom the two women shared from the 1990's to 2007.

Avon brought a motion for summary judgment on the ground that "Plaintiffs cannot prove that Alicia Ramirez came into contact with an Avon product contaminated with asbestos. Unlike the typical defendant in an alleged asbestos-related personal injury case, Avon is a cosmetics and fragrance company which has never included or used asbestos as an ingredient or component in its products. In other words, its products are designed to be asbestos-free. Thus, to succeed on their claims, Plaintiffs must prove that the Avon cosmetic talc products at issue more likely than not contained asbestos."

Avon also moved in the alternative for summary adjudication on the design defect claims in the first cause of action for negligence and the second cause of action for strict liability; the failure to warn claims in those causes of action; the negligent misrepresentation claim in the third cause of action and the fraud by non-disclosure claim in the fourth cause of action.

In support of its motions, Avon offered the declaration of Lisa Gallo, who, at the time, was Avon's vice president of Global Innovation, Research, and Development. Gallo had worked in Avon's research and development department since January 1994. Apparently, Gallo had previously been designated by Avon as a person most knowledgeable for purposes of some categories of information for a deposition noticed by the Ramirezes pursuant to Code of Civil Procedure section 2025.230. In her declaration, Gallo stated: "I make the following statements based on either my investigation or my own personal knowledge." Virtually all of her statements, however, concerned activities at Avon in the 1970's, and all but two of the documents she attached were also from that decade. The Ramirezes objected to her declaration and attached exhibits on the grounds they lacked foundation, lacked personal knowledge, and contained hearsay.

The trial court overruled the Ramirezes’ objections, found the Gallo Declaration shifted the burden of proof, found the Ramirezes had failed to show a triable issue of material fact, and granted summary judgment in favor of Avon. The court's amended March 2, 2021 order stated the reasons for the determination "are set forth by the Court in both the minute order (Exhibit A) and the hearing transcript (Exhibit B) ."

The minute order states: "The motion for summary judgment is granted because Avon's affirmative evidence shifts the burden, and Plaintiffs’ evidence fails to raise triable issues of asbestos content and exposure. Avon never included or used asbestos as an ingredient or component of its cosmetics products. Since the [early 1970's,] Avon has required its talc suppliers provide only asbestos-free talc. During the relevant time period, Avon had in place internal screening and testing programs as a quality assurance measure to ensure that the raw ingredient talc it received from suppliers was asbestos-free. No talc was used in an Avon cosmetic product if even a single asbestos fiber was detected during Avon's three-step screening program." There is no dispute that all of these facts come from the Gallo Declaration, and it was solely that declaration which shifted the burden of proof.

DISCUSSION

"[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493 ( Aguilar ).) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." ( Ibid . )

When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. ( Aguilar , supra , 25 Cal.4th at p. 853, 107 Cal.Rptr.2d 841, 24 P.3d 493.) "The defendant 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 p. 854, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The defendant must "present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." ( Ibid . ) Thus, "the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’

( Code Civ. Proc., § 437c, subd. (b).) The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." ( Id . at p. 855, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

"Supporting and opposing affidavits or declarations ... shall set forth admissible evidence." ( Code Civ. Proc., § 437c, subd. (d).) "Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits." ( Hayman v. Block (1986) 176 Cal.App.3d 629, 639, 222 Cal.Rptr. 293.)

Ordinarily, we review a trial court's rule on evidentiary objections for an abuse of discretion. There is a split of authority on evidentiary objections made in connection with a motion for summary judgment, however. As the Ramirezes point out, the Sixth District Court of Appeal and, to a more limited degree, the First District Court of Appeal have held that some or all written evidentiary objections should be reviewed de novo . ( Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1450–1451, 198 Cal.Rptr.3d 900 ; Strobel v. Johnson & Johnson (2021) 70 Cal.App.5th 796, 816–817, 284 Cal.Rptr.3d 165.) We agree with the majority of courts which have held that the abuse of discretion standard applies.³

I. The Trial Court Erred in Overruling the Objections to the Gallo Declaration.

The Ramirezes contend the trial court erred in overruling their objections to the Gallo Declaration and attached exhibits based on lack of foundation, lack of personal knowledge and the hearsay nature of the documents. We agree.

During oral argument, the court explained it was overruling the objections because Gallo "was offered as a designated corporate representative and person most knowledgeable, which does give a basis for her legally to obtain and provide the...