The opinion
Filed 1/23/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LAOSD ASBESTOS CASES. B313982
__________________________________
(Los Angeles County
FERMIN RAMIREZ, Individually Super. Ct. No. 20STCV22671
and as Personal Representative, etc., Case No. JCCP4674)
Plaintiff and Appellant,
v.
AVON PRODUCTS, INC.,
Defendant and Respondent.
APPEAL from an order and judgment of the Superior Court
of Los Angeles County, David S. Cunningham III, Judge.
Reversed.
Maune Raichle Hartley French & Mudd, David L. Amell,
Marissa Y. Uchimura; Law Office of Ted W. Pelletier and Ted W.
Pelletier for Plaintiff and Appellant.
Foley & Mansfield, Keith M. Ameele, Margaret I. Johnson;
Hawkins Parnell & Young, Claire C. Weglarz and Macy M. Chan
for Defendant and Respondent.
_________________________
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
1 Alicia died while this appeal was pending, and the action is
now being prosecuted by Fermin in his individual capacity and as
Alicia’s successor-in-interest. Because we consider actions which
predate Alicia’s death, we continue to refer to her by her first
name for clarity and to refer to appellants collectively as the
Ramirezes for purposes of this appeal.
2
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
2 The complaint alleged Alicia was also exposed to asbestos
through her work in the garment industry and through her
husband, who was directly exposed to asbestos in his automotive
repair work and who brought asbestos into the home on his
clothing and person.
3
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.
4
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 (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
5
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.) “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.) 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.)
“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.)
6
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; Strobel v.
Johnson & Johnson (2021) 70 Cal.App.5th 796, 816–817.) 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.
3 See, e.g., Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th
1109, 1118; Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1169;
Duarte v. Pacific Specialty Ins. Co. (2017) 13 Cal.App.5th 45, 52;
O'Neal v. Stanislaus County Employees’ Retirement Assn. (2017)
8 Cal.App.5th 1184, 1198–1199; Ryder v. Lightstorm
Entertainment, Inc. (2016) 246 Cal.App.4th 1064, 1072; Jones v.
Wachovia Bank (2014) 230 Cal.App.4th 935, 951; Serri v. Santa
Clara University. (2014) 226 Cal.App.4th 830, 852; Ahn v. Kumho
Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 143–144; Garrett v.
Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181;
cf. Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th
1102, 1122–1123 (conc. opn. of Turner, P. J.) (Howard) [listing
13 decisions and stating the “unanimous” decisions from 2006 to
2012 applied the abuse of discretion standard].
7
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 foundational testimony, based on her
independent review, which I think she did indicate she had done.
[¶] And also when I look at her title and her duties and
responsibilities, that further suggests that the declaration is
appropriately admissible and may be considered by the court as
affirmative evidence.”
The Ramirezes contend there are only two types of
witnesses, lay or expert, and Gallo was not designated as an
expert. She was therefore limited to testimony reflecting her
personal knowledge and could not testify to hearsay. We agree.
The Evidence Code recognizes only two types of witnesses:
lay witnesses and expert witnesses. “Subject to Section 801, the
testimony of a witness concerning a particular matter is
inadmissible unless he has personal knowledge of the matter.
Against the objection of a party, such personal knowledge must
be shown before the witness may testify concerning the matter.”
(Evid. Code, § 702, subd. (a).) Evidence Code section 801 governs
the testimony of an expert witness, who may provide an opinion
based on hearsay which need not always be based on personal
knowledge.
There is no special category of “corporate representative”
witness, as the trial court suggested. There is no exemption from
the Evidence Code for a witness who has conducted an
“independent review,” whatever the trial court meant by that
phrase. Gallo was certainly not an independent witness; she is
an Avon employee who conducted her “investigation and review”
8
on behalf of Avon, a party to this action. Even trained and sworn
police officers who are authorized by the State of California to
investigate crimes are not exempt from the requirements of the
Evidence Code when testifying at trial in a non-expert capacity.
Gallo was simply a lay witness, and as such she was limited to
matters as to which she had personal knowledge.
The Evidence Code also does not recognize a special
category of “person previously designated as most
knowledgeable” witness. “Person most qualified” is a term from
the Code of Civil Procedure pertaining to depositions of entities
which are not natural persons. Code of Civil Procedure section
2025.230 provides: “If the deponent named is not a natural
person, the deposition notice shall describe with reasonable
particularity the matters on which examination is requested. In
that event, the deponent shall designate and produce at the
deposition those of its officers, directors, managing agents,
employees, or agents who are most qualified to testify on its
behalf as to those matters to the extent of any information known
or reasonably available to the deponent.” (Code Civ. Proc.,
§ 2025.230)
This section is part of the Civil Discovery Act. (Code Civ.
Proc., § 2016.010 et seq.) To state what should be obvious, the
purpose of discovery is to permit a party to learn what
information the opposing party possesses on the subject matter of
the lawsuit, and the scope of discovery is not limited to
admissible evidence. (Code Civ. Proc., § 2017.010 [discovery
must be relevant but may be of “matter [that] either is itself
admissible in evidence or appears reasonably calculated to lead to
the discovery of admissible evidence.”].) Thus, the mere fact that
a person is asked about a matter at a deposition and provides
9
information in response does not make that testimony admissible
at trial. As section 2025.620 makes clear, deposition testimony
“may be used against any party who was present or represented
at the taking of the deposition . . . so far as admissible under the
rules of evidence applied as though the deponent were then present
and testifying as a witness.” (Code Civ. Proc., § 2025.620, italics
added.)
While discovery in general aids both plaintiffs and
defendants equally, the tools of discovery are intended to benefit
the party utilizing those tools. The purpose of a deposition is not
to aid the party whose witness is being deposed; it is to aid the
opposing party taking the deposition. More specifically, the
primary purpose of section 2025.230 is not to aid corporate
entities. Rather, it is intended to simplify discovery for the party
seeking information from a corporation. “As one treatise
explains, ‘[t]he purpose of this provision is to eliminate the
problem of trying to find out who in the corporate hierarchy has
the information the examiner is seeking. E.g., in a product
liability suit, who in the engineering department designed the
defective part?’ (Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2001) ¶ 8:474,
p. 8E-18.) The authors of the treatise explain that ‘[u]nder
former law, the entity was required only to designate “one or
more” officers or employees to testify on its behalf. This
permitted considerable “buck-passing” and “I don't know”
answers at deposition.’ (Ibid.) Under the current law, ‘[i]f the
subject matter of the questioning is clearly stated, the burden is
on the entity, not the examiner, to produce the right witnesses.
And, if the particular officer or employee designated lacks
personal knowledge of all the information sought, he or she is
10
supposed to find out from those who do!’ (Id., ¶ 8:475, p. 8E-18.)”
(Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390,
1395--1396.)
Avon does not cite any California case or statutory law
holding that notwithstanding the above clear statutory law, a
person deposed as a corporate person most qualified (PMQ
deponent) may testify at trial unrestrained by the rules of
evidence which apply to ordinary lay witnesses. Instead, Avon
simply argues that the Ramirezes’ “one-sided interpretation of
the law as requiring corporate PMQs to testify at deposition to
provide admissions that Plaintiffs can use against the
corporation, but precluding corporations from offering a
declaration or even trial testimony to defend against Plaintiff’s
claims flies against fundamental concepts of due process. Under
both the state and federal Constitutions, defendants in civil
actions are entitled to procedural due process protections which
‘ensure a fair adjudicatory process before a person is deprived of
life, liberty or property.’ ”
What Avon is in effect suggesting is that if a party deposes
a corporate entity, the corporate entity is no longer bound by the
rules of evidence at any subsequent trial or hearing. This is
simply nonsense. This would not only eliminate depositions of
corporations as a practical matter and thereby frustrate the Civil
Discovery Act, it itself would violate due process, since it would
place natural persons at a clear disadvantage in defending or
prosecuting lawsuits where the opposing party is a corporation.
Avon’s suggestion that it is being treated unfairly because
it is a defendant or a corporation is simply not true. First, any
restrictions on the testimony of a PMQ deponent at trial apply
regardless of whether the corporation is a defendant or a
11
plaintiff. The rules relating to witness testimony at a trial or
hearing also apply equally to defendants and plaintiffs. Second,
the described situation also applies to parties who are natural
persons. A “natural person” party may be required to testify at a
deposition to provide admissions which the opposing party can
use against the “natural person” party. The “natural person”
party is not then entitled to offer inadmissible evidence at trial to
defend against his or her own deposition admissions.
Avon next claims that, in truth, due process requires
corporations to receive special treatment under the rules of
evidence simply to place them on a level playing field with
natural persons. Avon argues: “Whereas natural persons may
often resort to firsthand testimony about events to mount a
defense, corporations, especially when defending against latent
injury claims from decades-old exposure, cannot do the same.
When corporations have existed for generations and the claims
are based on long-ago activities, it is impossible to mount an
effective defense the same way that a natural person would. For
example, many of the individuals who may have contributed to
the collective knowledge of the entity at one point may be unable
to attend trial, may be impossible to locate or may have passed
away. Further, the corporation’s knowledge is not unified: unlike
a single person’s recollection, the corporation’s information is
stored in fragments and excerpts, requiring synthesis and
analysis to be meaningful.”
To begin with the obvious: the burden is on the plaintiff to
prove those “long-ago activities” occurred. The plaintiff will be at
least as handicapped as the corporate defendant by the
unavailable corporate witnesses who undertook those long-ago
activities. Similarly, the plaintiff can only prove the corporation’s
12
knowledge through those same fragments and excerpts that the
corporation complains about.
Moving to the perhaps less obvious: The problem is not that
Avon is a corporation, the problem is that this case involves a
latent injury which began almost 50 years ago. This is equally a
problem for the Ramirezes, however. While Alicia may have been
able to rely on her recollection that she used Avon’s products,
proving the contents of those products is an entirely different
matter. If anything, the problem is more acute for the
Ramirezes, who bear the burden of proving the contents of those
products. Indeed, the Ramirezes have had to look outside Avon
for proof that the raw talc Avon used contained asbestos, relying
on expert analysis of the sources of the talc used by Avon. Avon
was free to do the same in response, but did not offer any such
expert testimony in support of its motion.
Ending with the least obvious: If anything, the passage of
time gave Avon an advantage here because, unlike Alicia, Avon
knew in the early 1970’s that some sources of talc were
contaminated with asbestos, and that at a minimum there were
concerns in the scientific community that asbestos in talc
presented a potential health hazard. Alicia did not have such
knowledge. According to the Gallo Declaration, Avon almost
immediately took steps to use only asbestos-free talc, yet Avon
apparently chose not to document its efforts, or not to preserve
that documentation. If there is an explanation for this omission,
it is not found in the record on appeal. At the same time, Avon
faults Alicia for not keeping the containers she used in the past,
when Alicia had no reason to suspect there was anything wrong
with the contents.
13
After arguing for special treatment for corporations, Avon
attempts to explain why it would be acceptable to give
corporation witnesses special privileges under the Evidence Code:
“The corporate witness is a channel through which compiled
corporate information is conveyed: the proposed affirmative
testimony is not mere speculation, but rather, can be
corroborated by underlying evidence which, itself, is admissible.
Concerns over unreliable testimony—those which animate the
personal knowledge rule—are thus not implicated by the
corporate witness’s testimony. Rather such testimony calls for
the court to engage in the conventional ‘practical compromise’ as
it would when, for example, a person is asked to testify about his
‘own age.’ ”
Assuming for the sake of argument that a corporate
witness completely lacking in personal knowledge of a subject
could testify based on “underlying evidence which, itself, is
admissible,” we do not see how such a rule would aid Avon here.
Avon has not shown that the evidence underlying the Gallo
Declaration would itself be admissible. Although Gallo does not
identify any source at all for most of her information, given that
she did not work at Avon until 1994, her statements involving
activities before that time cannot be based on personal knowledge
and must be based on hearsay.
Even assuming for the sake of argument that Gallo could
“channel” information received from individuals who had
personal knowledge of events and could testify as witnesses,
there is no indication that such persons were the source of Gallo’s
14
information. 4 Given the time frame involved, Gallo is most likely
“channeling” information from people who not only lacked
personal knowledge themselves, but acquired their information
from people who also lacked personal knowledge. 5 This oral
passing of information raises exactly the reliability concerns
which animate the personal knowledge requirement, not to
mention the rule against hearsay. The trial court had no way of
evaluating the reliability of the information Gallo received.
Further, Gallo’s repetition of that information was not reliable
simply because she was repeating it as a corporate representative
rather than on her own behalf. She is still a natural person,
subject to the foibles of her own memory and understanding.
Thus, the trial court abused its discretion in overruling the
Ramirezes’ objections to Gallo’s statements in her declaration.
This lack of personal knowledge is not cured by the
15 documents which Gallo attached to her declaration in support
of Paragraphs 7, 8, 10, 11, 12, 13,14, 16, 17, 18, 19, 20 and 21.
Even assuming Gallo is “channeling” or commenting on these
documents, the documents are all hearsay with no identified
exception. Thus, they are not themselves admissible evidence.
In addition to being hearsay, four documents were not
prepared by Avon and there is no indication of how or when Avon
obtained two of those documents. Exhibit 1 appears to be a
memorandum summarizing a 1971 symposium held by a division
4 In that event, of course, the person should have provided
his or her own declaration. The inconvenience of filing multiple
declarations is not an exception to the hearsay rule.
5 Since Gallo does not identify any individuals who are the
sources of her information, it is not possible to be sure.
15
of the Food and Drug Administration; the document does not list
Avon as a participant or addressee. Exhibit 12 appears to be a
document prepared by an industry trade group; Avon is not cited
in the document and is not an addressee. Exhibits 9 and 10 are
from one of Avon’s suppliers and were sent to Avon, but there is
no context to the communications, and they do not directly
correlate to the statements Gallo makes before citing them.
Exhibits 2, 3, 4, 6, 7, 8, 11, 13, 14 and probably 15 were
prepared by Avon employees, but there is no indication that they
fall under the business records exception or could satisfy even the
basic requirements for documents to qualify for that exception.
(See Evid. Code, § 1271 [a document is admissible
notwithstanding the hearsay rule if: “a) The writing was made in
the regular course of a business; [¶] (b) The writing was made at
or near the time of the act, condition, or event; [¶] (c) The
custodian or other qualified witness testifies to its identity and
the mode of its preparation; and [¶] (d) The sources of
information and method and time of preparation were such as to
indicate its trustworthiness.”].)
For example, Exhibits 4 and 8 are memoranda
summarizing telephone conversations, but there is no testimony
in the record on appeal that this type of memo was prepared in
the ordinary course of business by Avon employees. A number of
exhibits show on their face that they were not prepared at or near
the time of events described in them. Exhibit 2 memorializes a
meeting that occurred 4 days earlier and Exhibit 7 is a letter
from Avon to the OSHA Compliance Office, answering questions
from OSHA. The letter is dated September 1976 but refers
generally to activities dating back to 1973; it discusses in some
16
detail a change of supplier six months earlier. 6 Exhibits 4 and 8
likewise refer to events months or years in the past. For Exhibits
3, 6, and 13, it is not possible to tell when they were prepared in
relation to the activities described therein. Exhibit 15 is dated
1992 but makes assertions concerning the entire history of Avon’s
talc production.
Not only are the documents themselves hearsay, all contain
hearsay statements made by someone other than the author.
Some hearsay statements appear to be made by Avon employees,
but their background and position at Avon are unknown. It is
not possible to determine whether these sources of information
were accurately cited, or if the sources are reliable or had
personal knowledge of the matters discussed. At least four
documents contain hearsay statements by persons who are not
Avon employees.
Based on these flaws alone, the trial court abused its
discretion in admitting the documents, and Gallo’s testimony
“channeling” those documents.
6 Further, the letter appears to have been prepared as a
response to a regulatory inquiry, rather than to facilitate Avon’s
business operations, which again would preclude its admission
under the business records exception. (See, e.g., People v. McVey
(2018) 24 Cal.App.5th 405, 415 [“ ‘When a record is not made to
facilitate business operations but, instead, is primarily created
for later use at trial, it does not qualify as a business record.’ ”].)
Exhibits 4 and 8, which memorialize conversations with the FDA,
also appear to fall into this category.
17
Further, even if all the internal documents were admissible
(as opposed to Avon’s broad claims to OSHA, the FDA, reporters
and possibly the public) 7, the documents would not show that
Avon’s products never contained asbestos. These documents all
cover a very limited early time span and only one supplier. They
provide no basis for reasonable inferences concerning Avon’s
behavior during the entire 50-year period of Alicia’s claimed
exposure or the behavior of other suppliers.
For example, we note that Exhibit 15, the Pennisi
statement, cited in support of Paragraph 21, is particularly
problematic. In that paragraph, Gallo states: “No talc was used
in a cosmetic product if even a single asbestos fiber was detected
in Avon’s three-step screening program.” Gallo cites Exhibit 15
as a supporting document. This exhibit is a one-page document
referred to as the Pennisi statement; it resembles a press release,
and one in draft form at that. It begins: “There has been concern
in certain countries over the presence of asbestos in cosmetic
grade talc.” The declaration continues: “As an industry leader,
Avon has always been committed to ensure that the talcs we sell
and use are free from asbestos.” The statement contains general
descriptions of the testing Avon conducts on talc, states that
Avon requires its vendors to meet stringent standards and claims
that “[n]o talc is sold if even a single asbestos fiber is detected.”
The unsigned unsworn statement is dated “April 1992” and
attributed to “Stephen C. Pennisi, PhD DABT,” but there is no
indication of Pennisi’s role at Avon or the length of his tenure
there, nor is there any indication of the basis of his statements or
7 Exhibit 15, the Pennisi statement, falls into this category.
Because it played a central role in the summary judgment
proceedings, however, we discuss it briefly below.
18
the purpose for which the statement was prepared. Among the
many, many flaws of this document is that it contains no date
except the one underneath Pennisi’s name. 8 There is thus no way
to determine when the testing or vendor restrictions began or
how long they continued.
The trial court abused its discretion in admitting all these
hearsay documents, but the abuse of discretion was particularly
egregious in the case of the Pennisi statement. Without the Gallo
Declaration, Avon did not offer evidence which shifted the burden
to the Ramirezes. Accordingly, we reverse the order granting
summary judgment and the judgment.
II. Avon Did Not Adequately Develop Its Devoid Discovery
Claim.
Avon contends that even if we find the trial court erred in
finding the Gallo Declaration sufficient to shift the burden of
proof, we should still affirm the summary judgment on the
alternate ground that the Ramirezes’ discovery responses were
factually devoid. We find Avon has forfeited this claim.
Avon did not raise this ground in its notice of motion, as is
required. (Code Civ. Proc., § 1010 [“notice of a motion, other than
for a new trial, must state when, and the grounds upon which it
will be made, and the papers, if any, upon which it is to be
based.”].) While this is not a fatal defect if the ground is
adequately raised in the motion itself, Avon made at best a brief
conclusory argument on this ground, unsupported by any legal
authority. Avon contended: “Plaintiffs’ responses to Avon’s
discovery requests infer that they have no evidence that proves
8 There is nothing on the face of the document to connect it to
Avon apart from Pennisi’s use of the pronoun “we.”
19
that the Avon products at issue in this case more likely than not
were contaminated with asbestos. [Citation.] Moreover,
Plaintiffs have refused to disclose any testing that might show
the Avon product at issue were [sic] contaminated with asbestos.
[Citation.] If plaintiffs actually had tests that showed the Avon
products at issue contained asbestos—a central fact of the case—
they would have most certainly have disclosed them.”
At the hearing on the motion for summary judgment,
however, Avon stated: “As Your Honor is aware, there has been
some issues with the plaintiffs being a little not forthcoming in
disclosing evidence to Avon. And at this point, plaintiffs still
have not produced any testing documents, or any evidence that
any of the products at issue in this case contain asbestos.”
Counsel for the Ramirezes replied: “Briefly just to address the
ongoing discovery dispute with Avon, I believe that it is entirely
irrelevant to the issues before the court today. While Avon may
have the ability to move to exclude evidence at trial, due to an
alleged failure to disclose during the course of discovery. [¶]
There’s no statute or case law that I’m aware of that creates a
discovery sanction, which directs the court to grant a motion for
summary judgment where there is an ongoing discovery dispute,
separate and apart from the existence of a triable issue of fact.”
The court replied: “I’m not making the decision based on any
discovery sanction or dispute.”
It seems clear from this exchange that there was an
ongoing discovery dispute of some sort at the time of the motion
for summary judgment. In light of this dispute, it would be
unreasonable to infer a lack of evidence from any missing, devoid
or incomplete responses. Without more information, it seems
equally likely that any deficient responses were due to the then-
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ongoing dispute. Avon does not address this dispute at all on
appeal, however, or explain why it would be more reasonable to
infer a lack of evidence rather than an unwillingness to produce
evidence due to a discovery dispute. We are not required to
develop a party’s argument for it nor to search the record on our
own seeking deficiencies. (See United Grand Corp. v. Malibu
Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153, 156 (United
Grand).) For this reason alone, Avon has forfeited this claim.
We note that instead of addressing the discovery dispute,
Avon makes a new argument on appeal: the responses to
interrogatories are deficient because they simply “restated
Plaintiffs claims” and gave a “laundry list” of documents, and the
responses to request for document productions identified only of
two declarations. Avon did not raise or develop this argument in
the trial court; in it motion Avon did not cite the Andrews v.
Foster Wheeler case on which it now relies. (See Andrews v.
Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107 (Andrews)
[referring to a plaintiff’s “boilerplate answers that restate their
allegations, or . . . laundry lists of people and/or documents” as
capable of shifting the burden to plaintiff on summary
judgment].) This is another reason to decline to consider Avon’s
argument. (See Meridian Financial Services, Inc. v. Phan (2021)
67 Cal.App.5th 657, 704 [theories that were not fully developed or
factually presented to the trial court cannot create a triable issue
on appeal].)
We also decline to consider this new argument because
Avon has failed to develop it on appeal. Avon summarizes what
appears to be more than 20 pages of interrogatory responses in
less than a paragraph, then complains the responses lack detail.
More than this is required.
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A defendant moving for summary judgment “may . . .
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.” (Aguilar, supra, 25 Cal.4th at p. 855.)
While “circumstantial evidence supporting a defendant’s
summary judgment motion ‘can consist of “factually devoid”
discovery responses from which an absence of evidence can be
inferred,’ [it must be] noted ‘that the burden should not shift
without stringent review of the direct, circumstantial and
inferential evidence.’ ” (Andrews, supra, 138 Cal.App.4th at
p. 103.)
Avon’s discussion on appeal of the Ramirezes’ discovery
responses more closely resembles an argument that the
Ramirezes do not possess sufficient evidence to survive summary
judgment than it is an analysis of the evidence actually identified
in those responses. Again, we are not required to develop a
party’s argument for it nor to search the record on our own
seeking deficiencies. (See United Grand Corp, supra, 36
Cal.App.5th at pp. 153, 156.) “We may and do ‘disregard
conclusory arguments that are not supported by pertinent legal
authority or fail to disclose the reasoning by which the appellant
reached the conclusions he wants us to adopt.’ ” (Id. at p. 153.)
III. Avon’s Motion for Summary Adjudication Is Premised on
the Same Facts as Its Motion for Summary Judgment.
Avon contends that if we reverse the grant of summary
judgment we should remand this matter with directions to the
trial court to consider Avon’s alternative motion for summary
adjudication. Avon claims that motion was based on different
facts, law and evidence. We do not agree.
22
Four of the five claims that are the subject of the summary
adjudication motion turn on Avon’s knowledge: failure to warn;
negligent misrepresentation; fraud; and punitive damages. In
both its notice of motion and its supporting memorandum, Avon
contends the failure to warn claim fails because “Avon designed
asbestos-free products and manufactured those products in a way
to ensure that they did not contain asbestos.” Avon’s discussion
of the next two claims, negligent misrepresentation and fraud,
begin: “As noted above, Avon had no reason to believe its
products were contaminated with any level of asbestos.” Avon’s
discussion of the punitive damages claim states the claim cannot
be proved by clear and convincing evidence “especially . . . in
light of the fact that Avon designed asbestos-free products and
manufactured those products in a way to ensure that they did not
contain asbestos.” Even Avon’s discussion of the design defect
claim is premised on its assertion that it “designed asbestos-free
products.”
These arguments are simply variations of Avon’s
contention that its products were asbestos free. Without the
Gallo Declaration these claims must all fail. Accordingly, we
decline to direct the trial court to consider Avon’s alternate
motion for summary adjudication.
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DISPOSITION
The order granting summary judgment and the judgment
are reversed. The matter is remanded for further proceedings.
Appellant to recover costs on appeal.
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
We concur:
GRIMES, J.
HARUTUNIAN, J. ∗
∗
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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