Foley & Mansfield scores a double victory in Department 15 of the Los Angeles Superior Court on June 27, 2018, winning summary judgment for two different clients on the same day before the newly installed Asbestos Judge Brian Currey.

The significance of these victories go beyond just the wins for our respective clients - the motions were not typical “no-ID” type motions but rather they were contested on the basis that the ID was insufficient and that, upon review of all the evidence, Plaintiffs could not establish any cause of action against either client. Furthermore, the issue of whether client “close-out” questions were necessary to win summary judgment was also successfully litigated.

The case involved Decedent’s alleged exposure to transite pipe through his work as a career pipe layer. One client, a fiber supplier, and the other a distributor of CertainTeed, Johns Manville and JM Manufacturing asbestos cement pipe. In both motions the Court ruled that Defendants had successfully shifted the burden to Plaintiffs, who then must establish a dispute of material fact. In California, the moving party has the initial burden of proof showing that the Plaintiffs have no case and no potential that they would have a case at trial; once that burden is met, it shifts to the Plaintiffs to demonstrate that there is evidence sufficient to prove their case at trial.  The Court further found that Plaintiffs failed to meet their burden by showing a triable issue of material fact.

Defendants argued, and the Court agreed, that not only had Plaintiffs failed to meet their burden to establish causation, but based on a review of all the evidence, it would be impossible for Plaintiffs to do so at trial. 

Critically, the Court rejected Plaintiffs’ argument that the case of Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, required the Defendant to question the witness regarding the specific name of its client, a supplier, when the witness already categorically denied having further information on the topic at issue. Judge Currey believes that if the witness has denied any other knowledge of any tortfeasors other than those he or she recalls, there is no requirement that the specific name of the other potential tortfeasors be mentioned to refresh the witnesses’ recollection. Notably, Judge Currey characterized Plaintiffs’ argument that this is the rule of Scheiding as “an absurdity”.

Because California rejects the federal Celotex standard, which permits the moving party to simply point out gaps in the evidentiary record through argument, it is more difficult to win a motion for summary judgment here than in most all other states and in federal court.  A moving defendant must come forward with actual evidence to shift the burden.  Even then, the Code of Civil Procedure’s timing requirements and case law favor plaintiffs in their quest to create a dispute of material fact, making victories for moving defendants all the more rare.

The case was argued by M. Amadea Groseclose and Angela V. Sayre, on behalf of their respective clients.