87 Cal.App.5th 939
Cal. Ct. App.2023Background
- Alicia Ramirez developed mesothelioma and (with her husband Fermin) sued Avon in 2020 alleging asbestos-contaminated talcum powders (use from mid-1970s–2007).
- Avon moved for summary judgment (and alternatively for summary adjudication on several causes of action), supporting the motion with a declaration by Avon VP Lisa Gallo, who began working at Avon in 1994.
- Gallo’s declaration described Avon's talc testing and asbestos-free practices in the 1970s–1990s and attached contemporaneous documents; the Ramirezes objected for lack of foundation, lack of personal knowledge, and hearsay.
- The trial court overruled objections, treated Gallo’s declaration as shifting the burden, found the Ramirezes had no triable issue, and granted summary judgment for Avon.
- The Court of Appeal reversed: it held the trial court abused its discretion admitting Gallo’s declaration and exhibits because Gallo lacked personal knowledge and the documents were hearsay (and not shown admissible under exceptions); without Gallo the burden did not shift.
- The appellate court rejected Avon’s alternative affirmance arguments (that plaintiffs’ discovery responses were factually devoid) as forfeited and declined to remand solely to consider Avon's separate summary-adjudication motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Gallo declaration and exhibits (foundation, personal knowledge, hearsay) | Gallo lacked personal knowledge of events before 1994; her statements and attached documents are hearsay and not admissible at summary judgment | Gallo was Avon’s corporate representative/PMQ who could channel company knowledge; her review and title provided foundation for admissibility | Court reversed: Gallo was a lay witness limited to personal knowledge; PMQ status does not exempt evidence rules; declaration and hearsay exhibits improperly admitted — trial court abused its discretion |
| Whether Avon’s evidence shifted burden to plaintiffs | Ramirezes argued Avon failed to present admissible evidence to shift burden; without Gallo there was no prima facie showing | Avon argued Gallo’s declaration shifted the burden and plaintiffs failed to produce evidence creating a triable issue | Held for Ramirezes: without the Gallo evidence Avon did not meet its initial burden to shift production burden to plaintiffs |
| Alternate ground: plaintiffs’ discovery responses were "factually devoid" | Plaintiffs maintained any discovery dispute existed and missing materials could reflect an ongoing dispute, not absence of evidence | Avon argued plaintiffs’ discovery answers were conclusory/boilerplate and justified shifting burden | Court found Avon forfeited this argument (not properly raised/ developed below or on appeal) and declined to affirm on that ground |
| Remand to resolve Avon's alternate summary-adjudication motion | Plaintiffs opposed remand; argued the adjudication motion rested on the same factual claim (products were asbestos-free) | Avon asked remand because alternative motion was based on different facts/law/evidence | Court declined remand: alternative motion relied on the same core factual contention (Avon’s products were asbestos-free) and would fail without the Gallo evidence |
Key Cases Cited
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (establishes defendant's initial burden and burden-shifting framework on summary judgment)
- Andrews v. Foster Wheeler LLC, 138 Cal.App.4th 96 (discusses when factually devoid discovery responses may support summary judgment)
- Hayman v. Block, 176 Cal.App.3d 629 (affidavits must not contain matters that would be excluded at trial as hearsay or impermissible opinions)
- Pipitone v. Williams, 244 Cal.App.4th 1437 (addresses standards for reviewing evidentiary objections in summary judgment context)
- United Grand Corp. v. Malibu Hillbillies, LLC, 36 Cal.App.5th 142 (court will not develop an appellant's undeveloped arguments or search the record on its own)