MENOR, et al. vs CHANEL, INC., et al.

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/18/2026 Hearing on Motion for Summary Judgment filed by SAFEWAY INC. (Defendant) CRS# 837526978235 in Department 18

Tentative Ruling - 08/14/2026 Patrick McKinney

The Motion for Summary Judgment filed by SAFEWAY INC. on 06/12/2026 is Denied.

Please note: If this tentative ruling is contested, arguments will be heard on Friday, August 28, 2026 at 10:00 a.m. in Department 18

I.

Background

Jovy Menor and Bernard Menor (“Plaintiffs”) filed a complaint on January 2, 2026 bringing claims against Defendant Safeway Inc. (“Safeway” or “Defendant”), among others, alleging that Ms. Menor was diagnosed with mesothelioma caused by exposure to asbestos-containing talcum powders including products retailed by Defendant, among other exposures. Plaintiffs filed a First Amended Complaint (“FAC”) on May 5, 2026.

Plaintiffs identify Johnson’s Baby Powder, Vaseline Baby Powder, Baby Magic Baby Powder, Target Baby Powder, Longs Baby Powder, Albertsons Baby Powder, and Equate Baby Powder as among the products Ms. Menor applied to her sons during diaper changes between 1993-2000. (UMF No. 15.) Ms. Menor recalled purchasing these products from retailers in Stockton, California including Defendant as well as Albertsons, Walmart, Target, and Longs. (UMF No. 17.) She also was in her husband’s presence when he would use Dr.

Scholl’s foot powder daily, also purchased from Defendant and the other aforementioned retailers. (UMF Nos. 18, 19.) Ms. Menor also testified that, after moving to Stockton, she used numerous talc powder products – baby powders, body powders, foot powders, and cosmetic products – which she purchased from at least thirteen retailers including Defendant. (UMF No. 20.) Specific to Defendant, Ms. Menor recalled purchasing and using Johnson's Baby Powder, Signature Baby Powder, Baby Magic Baby Powder, Dr.

Scholl's Foot Powder, CoverGirl pressed face powder and eyeshadow, L'Oreal pressed face powder and eyeshadow, and Maybelline pressed face powder and eyeshadow. (UMF No. 22.) Ms. Menor was able to recall purchasing these products at two Safeway locations in Stockton. (UMF No. 23.)

In its MSJ, Safeway argues that Plaintiff’s responses showed that Plaintiff lacked evidence that Ms. Menor was exposed to asbestos-containing talcum powder products purchased at Safeway. Safeway also argues that Plaintiff’s discovery responses showed that Plaintiffs lacked evidence that any asbestos-containing powder products purchased from Safeway were a substantial factor in causing Ms. Menor’s injury.

Safeway moves for summary judgment or, alternatively, summary adjudication of the causes of action for strict products liability, negligence, and loss of consortium. 26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/18/2026 Hearing on Motion for Summary Judgment filed by SAFEWAY INC. (Defendant) CRS# 837526978235 in Department 18

II. Legal Standard “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit . . . .” (Cal. Civ. Proc. Code § 437c(a)(1).) “A defendant . . . has met that party’s burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established . . . .” (§ 437c(p)(2); see also Collin v. CalPortland Co. (2014) 228 Cal. App. 4th 582, 587 (“A defendant moving for . . . summary adjudication need not conclusively negate an element of the plaintiff’s cause of action.

Instead, the defendant may show through factually devoid discovery responses that the plaintiff does not possess and cannot reasonably obtain needed evidence.”).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action . . . . The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action . . . .” (Cal.

Civ. Proc. Code § 437c(p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (§ 437c(c).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action . . . [or] a claim for damages . . . .” (§ 437c(f)(1).)

III.

Discussion

Defendant’s reply objections are OVERRULED.

A. Motion for Summary Judgment “In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 982–83.)

The Court DENIES the motion for summary judgment.

1. Threshold Exposure Defendant seeks to meet its burden of production by pointing to Plaintiffs’ purportedly factually devoid responses to Defendant’s comprehensive discovery requests. The court finds that the

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/18/2026 Hearing on Motion for Summary Judgment filed by SAFEWAY INC. (Defendant) CRS# 837526978235 in Department 18 special interrogatories (SROGS) propounded on Plaintiffs are sufficiently comprehensive in that they request all facts pertaining to Defendant’s alleged liability and Ms. Menor’s exposure to talc products purchased at Defendant’s stores. Plaintiffs’ response to Special Interrogatory No. 1 alleges numerous facts as to Safeway’s purported knowledge of the dangers of asbestos and the sources of the talc used in its store-brand products, but does not identify any brands Ms.

Menor purchased at Safeway stores and alleges exposure to. (Def’s Compendium, Exh. 16 at 4:12- 25:11; UMF No. 42.) However, Ms. Menor testified at some length as to the products she claims she purchased at Safeway beginning in the early 1990s after moving to the mainland United States. (See UMF Nos. 14, 17-23 and evidence in support.) Neither Plaintiffs’ discovery responses nor Ms. Menor’s testimony state facts tending to establish that any of the products Ms. Menor purchased from Safeway and used or was exposed to were contaminated with asbestos.

The court finds that while Plaintiffs’ discovery responses are factually devoid as to whether Mr. Menor was exposed to products purchased at Safeway, Ms. Menor’s deposition testimony establishes threshold exposure to products for which Safeway may bear liability. However, Plaintiffs’ discovery responses are factually devoid as to whether the products Ms. Menor was exposed to actually contained asbestos.

The court finds that Defendant shifted the burden to the extent that Plaintiffs’ discovery responses and deposition testimony are factually devoid as to whether any of the talc products Plaintiffs purchased at Safeway stores were contaminated with asbestos. Plaintiffs in opposition present argument and evidence limited to Safeway store-brand products other than the “Signature” product, and Dr. Scholl’s foot powder. Ms. Menor’s deposition testimony also refers in vague terms to “Safeway brand” baby powder, but is not specific as to which product(s) she used. (Def’s Exhibit 4 at 473:1-473:19.)

Plaintiff submits affirmative evidence tending to establish that Vi-Jon, Perrigo, Cumberland Swan, Luzenac/Imerys, and Barretts manufactured Defendant’s private label baby powder and sourced the talc used in these products from mines in Montana, Vermont, and China. (PAMF Nos. 57, 66-74, 82; evidence in support.) Plaintiffs also set forth evidence that Dr. Scholl’s brand talc was sourced from mines in Montana, Vermont, and China. (PAMF No. 88-90.) However, this evidence does not establish that the products Ms.

Menor used and was exposed to contained asbestos themselves.

Plaintiffs submit the Declaration of R. Mark Bailey, geologist, an expert on asbestos-related geological and mineralogical issues. Mr. Bailey’s declaration attaches three studies he authored regarding the presence of asbestos in the Regal Mine in Montana, the Willow Mine in Montana, and the Hammondsville Mine in Vermont. (Bailey Decl., ¶¶ 2-4, Exhs. 2-4.) These studies conclude to a reasonable degree of scientific certainty that the talc mined from these mines was consistently contaminated with asbestiform tremolite and actinolite and that chrysotile asbestos was also found. (See, e.g., Bailey Decl., Exh. 2 at 114.) The court finds that Mr. Bailey’s declaration has adequate foundation for the opinions stated therein, but again, this evidence does not establish that the products Plaintiffs purchased from Safeway were contaminated with asbestos.

Plaintiffs also present the declaration of expert witness Dr. William Longo, Ph.D. There is no

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/18/2026 Hearing on Motion for Summary Judgment filed by SAFEWAY INC. (Defendant) CRS# 837526978235 in Department 18 foundation in the Longo Declaration regarding his “understanding” as to the sources of talc for the products identified at deposition by Ms. Menor; however, as noted above, Plaintiffs submit other admissible evidence tending to establish these facts. Dr. Longo opines that, based on his own testing and his review of published scientific literature, asbestos and fibrous talc were more likely than not to be present in “each bottle of the Mennen Baby Magic, Vaseline, White Shoulders, Calvin Klein, Dr.

Scholl's, Gold Bond, Walmart, Target, Safeway, Longs, CVS, and Walgreens brands of cosmetic talc powder that Mrs. Menor and her family used.” (Longo Decl., ¶ 23.) However, given Ms. Menor’s vague testimony regarding her use of Safeway brand products, including “Signature” products which did not contain talc, Dr. Longo’s general reference to “Safeway” products creates a possibility, but does not conclusively show, that Ms. Menor used asbestos-containing Safeway-brand products. Dr. Longo cites to testing performed by his firm, MAS, LLC, on the relevant products.

In 2022, MAS tested six samples of Montana cosmetic grade talc originating from American International Industries, all of which tested positive for chrysotile asbestos. (Id. at 24, Exh. 2.) MAS also tested 11 samples of talc from the Guangxi, China mine, sourced to supplier Imerys. All samples tested positive for chrysotile asbestos. (Id. at ¶ 27, Exh. 5.)

Dr. Longo also tested seven bottles of Dr. Scholl’s talc products. Dr. Longo declares that the powder in the bottles came from the 1940s through the early 2000s. However, the Longo Declaration contains no foundation for this claim or any statement regarding how many of the bottles of Dr. Scholl’s foot powder were produced in or after the early 1990s. Dr. Longo declares that his testing found amphibole asbestos (tremolite) or richterite in all seven samples and that six of the seven samples tested positive for chrysotile asbestos. (Longo Dec. ¶ 30; Exh. 8.)

Dr. Longo also tested two bottles of Dr. Scholl’s foot powder which were produced by a previous asbestos plaintiff. However, the declaration is silent as to when these bottles were manufactured or sold. Dr. Longo declares and the relevant report indicates that one of the two samples tested positive for chrysotile asbestos. (Id. at ¶ 31; Exh. 9.)

Although Dr. Longo does not describe having tested Safeway’s private brand talc products, he did test Walgreens, Longs, Albertsons, CVS, Target, and Walmart/Equate products. (Id. at ¶¶ 34-42, Exhs. 12-20.) Dr. Longo’s declaration and Plaintiffs’ other affirmative evidence tends to show that these products were made by the same companies and sourced to the same mines as Safeway’s private brand. (Id. at ¶ 21; PAMF No. 72 and evidence in support.)

The Court finds that Dr. Longo has an adequate foundation for an expert opinion that it is more likely than not that any individual bottle of Dr. Scholls Foot Powder purchased at Safewayand potentially Safeway-brand talc baby powder products contained asbestos or other asbestiform minerals based on the testing results provided with his declaration.

Plaintiffs also present the Declaration of Jerrold Abraham, M.D., a pathologist. He cites to the

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/18/2026 Hearing on Motion for Summary Judgment filed by SAFEWAY INC. (Defendant) CRS# 837526978235 in Department 18 World Health Organization’s International Agency for Research of Cancer (IARC), which has since 1987 considered asbestiform talc to be carcinogenic because of its similarity to asbestos. (Abraham Decl. ¶ 9.) While Dr. Abraham concedes that he has not reviewed Ms. Menor’s pathology materials, he has reviewed her medical records and opines that to a reasonable degree of medical certainty, Ms. Menor’s cumulative exposure to asbestos-containing talc were the cause of her mesothelioma. (Id. at ¶ 22.) The Court finds that there is adequate foundation for Dr. Abraham’s expert opinion.

On this record, the court finds that Plaintiffs’ affirmative evidence carries their burden to create a triable issue of fact as to whether the Dr. Scholl’s and any talc-containing Safeway brand baby powder products Ms. Menor purchased at Safeway stores, used, and was exposed to through her own and her husband’s use was contaminated with asbestos and a substantial factor in his mesothelioma diagnosis.

For the reasons stated above, Safeway’s motion for summary judgment is DENIED.

MOTION FOR SUMMARY ADJUDICATION

Because Defendant’s MSA as to Plaintiffs’ strict liability, negligence, and loss of consortium claims relies on the same facts as those for which the court denies its MSJ, Defendant’s MSA is also denied.

The Court also DENIES Safeway’s MSA on Issue No. 3, that “Safeway did not have a duty to inspect or test the products that it may have sold.” In its Moving MPA, Defendant cites two old cases, Tourte v. Horton Manufacturing Company (1930) 108 Cal.App. 22, 22-23 and Sears, Roebuck & Co. v. Marhenke (9th Cir. 1941) 121 F.2d 598, 600-601, for the general proposition that “an ordinary seller of products has no duty to inspect or test products that were manufactured by others for defects.” (See MPA at pp. 26:5-27:5.) No recent cases address this issue, almost certainly because California’s subsequently adopted strict liability doctrine renders irrelevant issues regarding retailers’ duties in connection with defective products they sell to consumers.

REQUEST FOR CONTINUANCE Plaintiffs’ request for a CCP § 437c(h) continuance is DENIED AS MOOT based on the representations of counsel for Merck & Co. and Plaintiffs at the August 13, 2026 Case Management Conference that Defendant Merck & Co. has resolved Plaintiffs’ claims in this action.

IV. Orders The motion for summary judgment is DENIED. The motion for summary adjudication is

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/18/2026 Hearing on Motion for Summary Judgment filed by SAFEWAY INC. (Defendant) CRS# 837526978235 in Department 18 DENIED.

CONTESTING TENTATIVE ORDERS

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