GODINA, et al. vs MERCK & CO., INC., et al.

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/16/2026 Hearing on Motion for Summary Judgment filed by VI-JON, LLC, individually and as successor in-interest, parent, alter ego, and equitable trustee to VI- JON, INC. (Defendant) CRS# 484600247507 in Department 18

Tentative Ruling - 07/15/2026 Patrick McKinney

The Motion for Summary Judgment/Adjudication filed by VI-JON, LLC, individually and as successor in-interest, parent, alter ego, and equitable trustee to VI-JON, INC. on 05/27/2026 is Granted in Part.

Defendant Vi-Jon, Inc.’s (“Defendant”) Motion for Summary Judgment (“MSJ”) is DENIED.

Defendant’s alternative Motion for Summary Adjudication (“MSA”) is GRANTED.

Plaintiffs allege that between the 1970s and 2016, plaintiff Clementina Godina (“Mrs. Godina”) was exposed to respirable asbestos from asbestos-contaminated talcum powder used to make various store brand cosmetic talcum powder products manufactured by Defendant on behalf of various retailers including Target, CVS, Albertsons and Walmart’s Equate brand baby powders.

ANALYSIS OF MSJ

Defendant attempts to meet its initial burden of production on summary judgment pursuant to Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 106-107, specifically Plaintiffs’ “factually devoid” responses to Defendant’s sufficiently comprehensive written and deposition discovery.

However, Defendant’s moving Separate Statement is defective and fails to meet the Andrews initial burden of production. The moving Separate Statement cites the entirety of four sets of written discovery requests propounded by Defendant without pointing to any specific requests that are factually devoid as to a key element of Plaintiffs’ threshold exposure claim, as stated in the Notice of Motion. It is Defendant’s moving burden to identify specific requests and responses that show Plaintiffs have no evidence to support their threshold exposure claim.

The only specific request and response cited in any of Defendant’s Undisputed Material Facts (“DUMF”) Nos. 3-5 is a reference to a portion to Plaintiff’s Response to Special Interrogatory (“SROG”) No. 1 at p. 3:8-25. (See Defendant’s Index of Exhibits (“DIOE”) Exh. G.) SROG No. 1 requests that Plaintiffs identify each and every product used by Mrs. Godina or in her presence which Plaintiffs contend Defendant supplied. The portion of Plaintiff’s Response thereto at p. 3:8-3:25 identifies Target Baby Powder from the 1980s through 2016, CVS Baby Powder in the 1980s and again in the 2000s until 2016, Albertson’s Baby Powder in the 1990s and 2000s and Walmart Equate Baby Powder from approximately 1995 until 2016.

Thus, Plaintiff’s Response to SROG No. 1 is not “factually devoid” because it adequately responds to the SROG 25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/16/2026 Hearing on Motion for Summary Judgment filed by VI-JON, LLC, individually and as successor in-interest, parent, alter ego, and equitable trustee to VI- JON, INC. (Defendant) CRS# 484600247507 in Department 18 propounded. Therefore, the MSJ must be denied.

Wherefore, the Court DENIES Defendant’s MSJ.

ANALYSIS OF MSA

1. MSAs of Plaintiffs’ Fraud Cause of Action and Punitive Damages Claim.

Plaintiffs’ Cause of Action alleges four distinct fraud-based causes of action: (1) intentional misrepresentation; (2) fraudulent concealment; (3) conspiracy to commit intentional misrepresentation; and (4) conspiracy to commit fraudulent concealment.

“The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) “[A] cause of action for misrepresentation requires an affirmative statement, not an implied assertion.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1092.)

"The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact." (Hambrick v.

Healthcare Partners Med. Grp., Inc. (2015) 238 Cal. App. 4th 124, 162.) When there is no fiduciary relationship between the parties, “a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.” (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1187.)

The elements of an action for civil conspiracy are: (1) formation and operation of the conspiracy; and (2) damage resulting to plaintiff; (3) resulting from a wrongful act done in furtherance of the common design. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1062.)

To be entitled to an award of punitive damages, a plaintiff must show by clear and convincing evidence that the defendant is guilty of malice, oppression or fraud. (Cal. Civ. Code § 3294(a).) The definition of “malice” includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (§ 3294(c).) “Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people. (See CACI 3946.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/16/2026 Hearing on Motion for Summary Judgment filed by VI-JON, LLC, individually and as successor in-interest, parent, alter ego, and equitable trustee to VI- JON, INC. (Defendant) CRS# 484600247507 in Department 18

A finding of malice does not require an actual intent to cause harm. “Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” (Pfiefer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)

Further, a defendant’s “prolonged failure” to take adequate measures to protect people who worked with its products against a known hazard to their health and safety may justify a conclusion that the conduct was malicious, fraudulent, or oppressive. (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 86.) However, the Cal. Supreme Court has stated that by addition of the word “despicable” to Civ. Code § 3294(c), “the statute plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc. v. Sup.Ct. (1994) 8 Cal.4th 704, 725.)

A clear and convincing evidentiary standard applies to evidence presented by a plaintiff in opposition to a motion for summary adjudication of punitive damages claims. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1118-1119.) However, the clear and convincing evidentiary standard “does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary [adjudication].” (Pacific Gas and Electric Co. v. Sup.Ct. (2018) 24 Cal.App.5th 1150, 1158-1159.) “Summary adjudication ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.’ ” (Ibid.)

Further, a defendant moving for summary adjudication must still make an initial prima facie showing that no disputed issues of material fact exist such that defendant is entitled to summary adjudication as a matter of law in order to shift the burden of production to plaintiff to present clear and convincing evidence of malice, oppression or fraud. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.)

Defendant’s Moving Separate Statement for each portion of the MSA incorporates by reference the same defective DUMF asserted with respect to threshold exposure. However, Defendant has at least marked SROG Nos. 15-21 of Exh. C to the DIOE seeking respectively all facts and identification of all witnesses and documents regarding each of the Fraud Cause of Action and the punitive damages claim. The Court will therefore consider Plaintiffs’ Responses to SROG Nos. 15-21.

Plaintiffs’ Responses to SROG Nos. 15-21 incorporate by reference one of Plaintiff’s prior

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/16/2026 Hearing on Motion for Summary Judgment filed by VI-JON, LLC, individually and as successor in-interest, parent, alter ego, and equitable trustee to VI- JON, INC. (Defendant) CRS# 484600247507 in Department 18 responses to SROG Nos. 1 (facts), 8 (witnesses) and 10 (documents).

Although Plaintiffs’ 14-page Response contains many specific facts that could support a fraudbased cause of action, the Response does not contain a single citation to specific evidence supporting the facts stated. Further, the Response is in many respects ambiguous, conclusory, contradictory and argumentative. For example, the Response states in relevant part that Defendant failed to comply with a 2005 California law that required reporting of talc-containing products. However, Defendant never manufactured its products in California, and the Response states no facts regarding who of Defendant or its retailer customers were responsible for shipping the products into California such that a California state reporting requirement might exist.

Similarly, the Response states that Defendant never provided packaging complying with California’s Prop 65 warning requirements, which, according to the Response has either listed talc to be a carcinogen since 1987 or talc containing asbestos fibers to be a carcinogen since 1990. However, the Response does not state whether Defendant or the retailer defendants decided what labeling would go on defendant retailers’ store brand baby powders.

Further, the Response alleges in solely conclusory terms that Defendant made affirmative misrepresentations to Plaintiffs but does not identify the specific misrepresentations and instead states that packaging and labeling included language “inferring” these products were safe and harmless. An intentional misrepresentation requires an affirmative misrepresentation, not an implied assertion. (RSB Vineyards, supra.)

Additionally, the Response does not adequately state facts to establish Defendant’s duty to disclose allegedly concealed facts. The fact that Defendant derived a monetary benefit from products sold to consumers by the retailers does not constitute the kind of direct buyer-seller transactional or contractual relationship required by the case law. (See Hoffman, supra; Bjoin v. J-M Manufacturing Company, Inc. (2025) 113 Cal.App.5th 884, 903-04.)

Finally, the Response does not adequately state specific facts tending to show that Defendant engaged in a conspiracy with anyone. Defendant’s membership in the CTFA by itself is insufficient to establish that Defendant engaged in a conspiracy to conceal trace asbestos contamination in cosmetic talc.

In response to SROG No. 8, seeking identification of witnesses, the only specific witness other than defendants’ witnesses is plaintiff Mrs. Godina and her unnamed children. Defendant presents evidence that at deposition in this action, Mrs. Godina had no personal knowledge to support any of her fraud-based claims. (DUMF Nos. 21-26.)

In Response to SROG No. 10, seeking identification of documents, Plaintiffs identify many specific documents. However, neither of the Responses to SROG Nos. 1 and 10 state which

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/16/2026 Hearing on Motion for Summary Judgment filed by VI-JON, LLC, individually and as successor in-interest, parent, alter ego, and equitable trustee to VI- JON, INC. (Defendant) CRS# 484600247507 in Department 18 document supports any specific fact stated in Response to SROG No.

1.

The Court finds that Plaintiffs’ Response to SROG No. 1 is sufficiently problematic that Plaintiffs should be required to present evidence in Opposition to support their fraud-based theories.

In Opposition, Plaintiffs present no evidence to support a finding that Defendant ever made a material misrepresentation of fact upon which anyone reasonably relied to Plaintiffs’ detriment. Further, Plaintiffs present no evidence to support a finding that Defendant engaged in a conspiracy with anyone.

Wherefore, the Court GRANTS Defendant’s MSA with respect to Plaintiffs’ causes of action for intentional misrepresentation, conspiracy to commit intentional misrepresentation, and conspiracy to commit fraudulent concealment.

With respect to Defendant’s alleged failure to provide cancer warnings in its MSDS sheets it provided to its own customers under federal law, Plaintiff presents evidence that Defendant failed to pass on warnings it received from its talcum powder supplier Barretts that talc could be a cause of talcosis, silicosis or lung cancer caused by inhalation of crystalline silica. However, Plaintiffs allege in their Complaint that Mrs. Godina has malignant mesothelioma and presents no evidence in Opposition that inhalation of crystalline silica can be a cause of mesothelioma.

Mrs. Godina testified that she never saw any cancer warnings on bottles of store brand talcum powder she purchased, and there is evidence in Plaintiffs’ record that Defendant was responsible for all such warnings on CVS baby powder, one of the store brand products she used. However, Plaintiffs present no evidence regarding when the State of California listed talc as a Proposition 65 carcinogen. The State of California OEHHA’s website at https://oehha.ca.gov/proposition- 65/proposition-65-list lists “Talc containing asbestiform fibers” as a carcinogen added to the list on 4/1/1990.

However, Plaintiffs’ Opposition evidence fails to present sufficient evidence to create triable issues of material fact that Defendant knew that the talc obtained from Barretts contained trace amounts of asbestos in spite of Barretts’ express representations that it did not. Although Defendant’s failure to conduct its own independent testing of Barretts’ talcs supplied to Defendant may have been negligent or even grossly negligent, it is insufficient to create triable issues of material fact under a clear and convincing evidentiary standard that Defendant knew the talc was contaminated with trace amounts of asbestos.

Plaintiffs present evidence that Defendant claims it ceased to make cosmetic talcum powder products in 2016 when the IARC decided to list talc not containing asbestos fibers as a possible

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV161701: GODINA, et al. vs MERCK & CO., INC., SUED INDIVIDUALLY, AS ALTER-EGO OF, AND AS SUCCESSOR-IN-INTEREST TO SCHOLL, INC. AND SCHERING-P..., et al. 07/16/2026 Hearing on Motion for Summary Judgment filed by VI-JON, LLC, individually and as successor in-interest, parent, alter ego, and equitable trustee to VI- JON, INC. (Defendant) CRS# 484600247507 in Department 18 human carcinogen. However, Plaintiff presents no evidence that Defendant was aware of any prior scientific or medical literature showing that cosmetic talcum powder not containing asbestos fibers could be a cause of malignant mesothelioma. (See McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853.)

Wherefore, the Court GRANTS Defendant’s MSA of Plaintiffs’ cause of action for fraudulent concealment and MSA of Plaintiffs’ punitive damages claim.

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