Michael Dale Smith and Karyn Smith v. Alco Industries, Inc., et al.

Case No. 26STCV02405 ¿¿¿¿ Hearing Date: August 27, 2026 Time: 9:00 a.m. ¿ [TENTATIVE] ORDER RE: ¿ SHERWIN-WILLIAMS COMPANY'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION | I.

Background

On January 23, 2026, Plaintiffs Michael and Karyn Smith filed their complaint for personal injury alleging Mr. Smith developed mesothelioma after he was exposed to asbestos and asbestos-containing products. Mr. Smith alleges he was exposed to asbestos through his father's work in the automotive industry. As to Illinois Tool Works, Inc. (""ITW" or "Defendant"), Plaintiff alleges that he was exposed to ITW's asbestos-containing Evercoat White Star ("Evercoat") auto body filler products.

On June 15, 2026, Defendant the Sherwin-Williams Company ("Sherwin") moved for summary judgment or adjudication, arguing that Plaintiffs lack and cannot reasonably obtain evidence that Mr. Smith was exposed to an asbestos-containing product for which it is responsible. On July 31, 2026, Plaintiffs opposed, arguing that a triable issue of material fact exist as to whether Mr. Smith was exposed to asbestos from Sherwin's automotive primer. Alternatively, Plaintiffs request that the court continue the hearing to allow them to take the deposition of co-defendant BASF's person most knowledgeable.

On August 3, 2026, Plaintiffs dismissed the fourth cause of action for intentional concealment and the demand for punitive damages as to Sherwin-Williams Company. On August 7, 2026, Sherwin replied, reiterating that Plaintiffs have no evidence that Mr. Smith was exposed to asbestos through a product for which it was responsible. Sherwin also argues that a continuance is not warranted because Plaintiffs settled with BASF and cancelled the deposition.

On August 14, 2026, the court continued this matter to August 27, 2026 to allow Plaintiffs to complete the deposition of the person most knowledgeable ("PMK") for Defendant BASF. On August 21, 2026, Plaintiffs filed a supplemental opposition discussing the evidence they submitted in opposition and responding to Sherwin's evidentiary objections. The opposition did not discuss the deposition of BASF's PMK.

On August 24, 2026, Sherwin filed a supplemental reply supporting their objections to Plaintiffs' evidence. Sherwin argued that Plaintiffs' discovery responses were devoid of facts supporting their claim that Mr. Smith was exposed to an automotive primer containing asbestos-contaminated talc. However, Plaintiffs' discovery responses were not factually devoid.

Sherwin also presented affirmative evidence to show that Plaintiffs cannot prove that Mr. Smith was exposed to a talc-containing primer as opposed to other formulations that did not contain talc. However, the evidence Sherwin relied on to make this argument was inadmissible.

Sherwin provided affirmative evidence in the form of expert testimony to show that Mr. Smith's exposure to the Sherwin primer products was not a substantial factor in causing his mesothelioma. Plaintiffs presented competing expert testimony raising a triable issue of material fact over whether Mr. Smith's exposure to the primer caused his injuries.

Sherwin's motion for summary judgment is denied. The motion for summary adjudication of the third cause of action for "strict liability misrepresentation" is granted. The motions for summary adjudication of the fourth cause of action and the demand for punitive damages are moot because Plaintiffs dismissed the fourth cause of action and the demand for punitive damages.

II. Judicial Notice

Plaintiffs request that the court take judicial notice of "29 CFR Parts 1910 and 1926, Occupational Exposure to Asbestos, Tremolite, Anthophyllite, and Actinolite, Final Rules (1986)." (Plaintiffs' RJN.) The request is granted under Evidence Code section 452, subdivision (b).

III. Evidentiary Objections

Defendant's Objections Overruled

Declaration of Kenneth Garza, P.P. 207(A)-(H); 51 57. (See Plaintiffs' Separate Statement No. 33, 34, 36.) Sherwin objects to the declaration of Mr. Garza on the grounds that the declaration is irrelevant, lacks foundation, is misleading, is speculative, and is unsupported. Specifically, Sherwin argues that Mr. Garza has no information on which specific Sherwin automotive primer Mr. Smith was exposed to and assumes information about the talc content of the primers and other information such as the talc's asbestos contamination to make his opinions about the asbestos content of Sherwin's products.

As will be discussed below, the specific products Mr. Smith was exposed to and whether Mr. Smith was in fact exposed to a talc-containing automotive primer remain factual disputes. As an expert, Mr. Garza was permitted to rely on hearsay to form his opinion that the talc used in Sherwin primers was likely contaminated with asbestos and that Mr. Smith's exposure to the dust from sanding these products was a substantial factor in causing his injuries.

While Sherwin alleges that Mr. Garza fails to provide a basis for his opinions, Mr. Garza properly states in general terms that he relied on various Sherwin records (Garza Decl., P.207(B)), scientific articles (Garza Decl., P.P.189, 134, 103, 14), and Plaintiff's deposition testimony (Garza Decl., P.207(A)) to form his opinion. Accordingly, the objection to this portion of Mr. Garza's declaration is overruled. Sherwin's remaining objections to Mr. Garza's declaration are overruled for the same reasons.

Not relied upon

The target of Sherwin's remaining objections - regarding talc sources and products - are not relied on.

Plaintiff's Objections Sustained: Defendant's Exhibit O, Declaration of Alexandria Celesky. [1]

Sherwin offers Ms. Celesky's declaration to show that during the relevant exposure period, Sherwin did not manufacture automotive primers containing asbestos. (UMF No. 19, Celesky Decl., at P.4.) Additionally, Ms. Celesky testifies that only some of Sherwin's primers contained extender pigments such as talc as ingredient. (UMF No. 23, Celesky Decl. at P.6.) Ms. Celesky alleges that Sherwin had multiple talc vendors serving various manufacturing sites. (UMF No. 25, Celesky Decl., at P.8.)

Plaintiffs object to the declaration on the grounds that Ms. Celesky did not begin working for Sherwin until 2000 and thus has no personal knowledge to testify on whether Sherwin's primers contained talc in the years Mr. Smith was exposed. (Opp. at p.11.) Ms. Celesky's declaration provides no basis for her personal knowledge of the facts stated in the declaration. There is no indication that Ms. Celesky was employed by Sherwin between 1958 and 1972 or otherwise had personal knowledge of the facts in her declaration about events which took place during that time period. Accordingly, Ms. Celesky's declaration is inadmissible for lack of foundation.

Overruled: Defendant's Exhibit P, Declaration of Kelly Scribner Tuttle, Senior Technical Fellow in Toxicology and Industrial Hygiene.

Plaintiffs object to Ms. Tuttle's declaration on the grounds that she is not a geologist or mineralogist and has not performed testing or reviewed literature to support her opinions. The court has reviewed Dr. Tuttle's qualifications and finds that Dr. Tuttle is qualified as a toxicologist to opine on whether the dust Mr. Smith was exposed to from sanding Sherwin's automotive primers increased his risk of asbestos-related disease. Dr. Tuttle also properly cites scientific literature upon which she relies to form her opinion. (Tuttle Decl., pp. 34-38.)

IV.

Discussion

A.

Legal Standard

A defendant seeking summary judgment must "conclusively negate[] a necessary element of the plaintiff's case, or . . . demonstrate[] that under no hypothesis is there a material issue of fact that requires the process of trial." (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.) To show that a plaintiff cannot establish an element of a cause of action, a defendant must make the initial showing "that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

"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.)

" 'If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiff's factually devoid discovery responses.' " (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1440.)

B. Causation

In asbestos litigation, a plaintiff is required to show causation. A plaintiff must show "some threshold exposure" to asbestos-containing products and must further establish to a "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.)

"[T]he proper analysis is to ask whether the plaintiff has proven exposure to a defendant's product, of whatever duration, so that exposure is a possible factor in causing the disease and then to evaluate whether the exposure was a substantial factor." (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416 (Lineweaver).)

Where asbestos was not an intended ingredient in a talc product, plaintiffs bear the additional burden of showing that it is "more likely than not that the talc product was contaminated with asbestos during the time the plaintiff used it." (LAOSD Asbestos Cases (2020) 44 Cal.App.5th 475, 489 [hereinafter " Gibbons "].)

Evidence sufficient to support this finding includes "long term use of a talcum powder product alleged to contain asbestos by a mesothelioma sufferer who was not exposed to any other known source of asbestos above background asbestos levels that are ever-present in the environment, together with expert testimony reporting positive test results for the presence of asbestos in ore from the sources used to manufacture the product." (Strobel v. Johnson & Johnson (2021) 70 Cal.App.5th 796, 815.)

"In the absence of evidence explaining how asbestos in the source ore would have been eliminated in the process of mining and then milling talc, that is enough to support more than a mere possibility that the accused product... was a substantial factor in causing [plaintiff] to develop mesothelioma." (Ibid.)

i. Defendant's Burden: Factually Devoid

As against Sherwin, Plaintiffs allege Mr. Smith was exposed to an automotive primer Sherwin manufactured and sold. (PAUMF No. 36.) The parties agree that asbestos was not an intended ingredient in Sherwin's automotive primers between 1958 and 1972, the time Mr. Smith alleges he was exposed. (UMF No. 19, PRUMF No.19.) The parties dispute whether Sherwin's automotive primers contained asbestos-contaminated talc. (UMF No.20.)

Sherwin argues that Plaintiffs' responses to written discovery and deposition testimony are devoid of facts supporting their claim that Mr. Smith was exposed to Sherwin products containing asbestos-contaminated talc. (Motion at p.8 ["Here, in response to Sherwin-Williams' comprehensive deposition questions and 'all facts' interrogatories, Plaintiff's testimony and discovery responses are 'so devoid of facts, as to lead to the inference that [he cannot] prove causation' linking his injury to any particular Sherwin-Williams product."].)

In opposition, Plaintiffs argue that their discovery responses were not factually devoid. (Opp. at p. 8 ["Plaintiffs answered Sherwin-Williams's requests on the issues of exposure and punitive damages by setting forth facts and identifying discrete items of evidence supporting those facts. Such responses are not "factually devoid" as to shift the moving party's burden."].)

In reply, Sherwin reiterates that it has shifted its initial burden by proving Plaintiffs' discovery responses are devoid of facts, supporting an inference that Plaintiffs cannot prove a Sherwin product caused Mr. Smith's injuries. (Reply at p. 2.)

Sherwin fails to meet its initial burden to show that Plaintiffs lack and cannot reasonably obtain evidence that Mr. Smith was exposed to asbestos by an asbestos-containing product for which it was responsible. When Sherwin asked Plaintiffs to "IDENTIFY all EVIDENCE supporting [their] contentions that [Mr. Smith was] exposed to asbestos-containing products marketed by" Sherwin, Plaintiffs responded as follows:

" When Plaintiff Michael Smith was a child, his father was in charge of the autobody repair shop at Three-Way Chevrolet in Bakersfield, California. Between approximately 1959 and 1961, Mr. Smith frequently visited his father at Three-Way Chevrolet. Mr. Smith was present at Three-Way Chevrolet approximately four to five days per week. During those visits, Mr. Smith observed and was in close proximity to workers who were performing autobody repair work, brake replacements and clutch replacements.

Mr. Smith saw the work performed in ten "stalls" that were arranged in two facing rows of five. Mr. Smith's family moved to Ventura, California, in the summer of 1964. Mr. Smith's father began working at Ventura Autobody as the autobody shop manager. He ran that autobody shop until 1967. During the summer of 1964, Mr. Smith had two three-week visits to Ventura as the family prepared to move. Mr. Smith visited Ventura Autobody from approximately 10:00 a.m. until the shop closed each day during those visits.

Later, he went there after school four nights per week during the school year. During the summers of 1965 and 1966, Mr. Smith visited his father at work three to four days per week after completing chores and odd jobs. In 1967, Mr. Smith's father began working as an appraiser. He continued working as an appraiser until 1974. During the summers of 1970, 1971, and 1972, Mr. Smith visited body shops in Los Angeles County, Ventura County, Santa Barbara County, and San Luis Obispo County with his father three to four days per week.

During those visits to those body shops, Mr. Smith saw other workers performing autobody repairs. While spending time at his father's places of employment set forth above, Mr. Smith was frequently in close proximity to mechanics who were performing autobody repairs with primers. Mr. Smith observed the mechanics placing the primers into spray guns and then spraying the primers over the areas that were going to be painted. After the primers dried, Mr. Smith saw the mechanics using electric sanders to sand the areas where they had applied the primer.

During visits to Three-Way Chevrolet, Ventura Autobody, and various body shops while his father worked as an appraiser, Mr. Smith was exposed to dust as autobody mechanics sanded SHERWIN-WILLIAMS primers dozens of times. Mr. Smith was frequently exposed to dust in these shops as the workers used compressed air to clean up the dust from sanding the SHERWIN-WILLIAMS autobody primers. All of this work by others at Plaintiff's father's places of employment in Plaintiff's presence with SHERWIN-WILLIAMS primers that contained asbestos-contaminated talc, created dust that Plaintiff breathed in without warnings or precautions.

SHERWIN-WILLIAMS manufactured and sold autobody primers that contained asbestos contaminated NYTAL talc supplied primarily by R.T. Vanderbilt. R.T. Vanderbilt supplied Sherwin Willaims with talc that was used in its products from at least 1952 to 1979. (See February 2, 1979 Sherwin-Williams Internal Memorandum from D.T. Rehor; Defendant The Sherwin Williams Company's First Amended Answers to Master Discovery served on May 14, 2003 in In Re: Asbestos Litigation, In the District Court 352nd Judicial District Tarrant County, Texas; July 12, 1978 Sherwin-Williams Inter-Office Memorandum; February 8, 1977 Memorandum from R.T.

Vanderbilt to Sherwin-Williams; April 13, 1977 Memorandum from R.T. Vanderbilt to Sherwin-Williams; May 8, 197 Vanderbilt Talc-Airborne Asbestos Study of Sherwin Williams; October 24, 1973--Interim Report No. 1--Monitor Gouverneur Talc Company Paint Tests; R.T. Vanderbilt Company, Inc.'s Amended Responses to Plaintiff's Interrogatories, Set Two, served on September 28, 2009 in Eric Weston v. Asbestos Corporation Limited, et al., Alameda Superior Court Case No. RG08426405; Sherwin-Williams Safety Data Sheet for Rust Inhibiting and Lacquer Resistant Primer showing talc as an ingredient; documents produced by Sherwin-Williams in Alicia Azzolini, et al. v.

Basco Drywall & Painting Co., et al., Alameda Superior Court Case No. RG14719680.)" (Leung Decl., Exh. E at pp. 4-7.)

At his deposition, Mr. Smith confirmed much of the same information stated in the interrogatory response. Mr. Smith testified that he could tell which brand of automotive primers was used at his father's workplace by the color of the primer. (Leung Decl., Exh. N at 426:22-427:25 ["A:...There was a primer that had different colors. So if it - if it was red, it could have been one or two, and I wouldn't have known if I walked in on it. But if it was gray or white, that was a different primer. Q: Okay. What brands were red? A. Red oxide. And Sherwin-Williams had a red. Q: And what brands were gray or white? A: Sherwin-Williams."].)

Mr. Smith recalls that Sherwin and Red oxide primers both came in gallons, were applied in thin coats, and then sanded. (Id. at 428:1-8 ["A:...Sherwin-Williams came in gallons. I don't want to say I assume. But red oxide probably came in gallons, too...And they applied several coats. Thin coats, you know, depending on what they needed. Usually more than one coat. And that had to be sanded."].) Mr. Smith never saw any paperwork regarding the ingredients of the products or materials present at his father's shops. (Id. at 438:8-11.)

Mr. Smith recalls seeing someone using a Sherwin product for the first time at his father's workplace at Three-Way Chevrolet in 1958 and for the last time in 1972. (Id. at 519:1-24.) Mr. Smith described the application process and explained that workers applied the primers in thin coats and sanded the dried primer two to five times per vehicle. (Id. at 538:18-539:24.) Mr. Smith could not estimate what percentage of the primers he saw being used were Sherwin products but knew he saw Sherwin brand primers "dozens and dozens of times." (Id. at 542:11-19.) Mr. Smith recalled that the Sherwin primer came in metal can with a pry-off top and a metal wire handle in a blue container marked with a black Sherwin logo. (Id. at 543:18-544:25.)

The court finds that Plaintiffs' discovery responses are not factually devoid as to evidence of causation. Plaintiffs' interrogatory responses specifically identified a Sherwin product, an automotive primer, and the asbestos-contaminated talc that was an ingredient in the primer. (Leung Decl., Exh. E at pp. 4-7.) The response further identified a talc supplier who allegedly supplied the asbestos-contaminated talc used in the primer. (Id.) The response contains specific facts and references specific documents to support Plaintiffs' contention that Mr.

Smith was exposed to asbestos by Sherwin's automotive primer product. (Id.) Mr. Smith also described at his deposition how the product was applied and sanded, described the products' color and packaging, and alleged that the sanding process created dust which he alleges he inhaled. (Id.) Therefore, Plaintiffs' discovery responses contain sufficient facts to support their claims against Sherwin.

ii. Defendant's Burden: Affirmative Evidence

Sherwin also argues that it shows through affirmative evidence that Mr. Smith was not more likely than not exposed to a talc from Defendant's products, let alone asbestos containing talc, and that even if he was, Defendant presents expert testimony that this exposure could not have been a substantial factor in causing his mesothelioma. Sherwin presents (1) the declaration of Ms. Celesky to show that Sherwin made many primers, some of which did not use talc, and (2) the declaration of Dr. Tuttle to show that Mr. Smith's exposure to the primer was not a substantial factor in causing his injuries.

First, Sherwin relies on the declaration of Ms. Celesky to show that only some of Sherwin's primers contained talc. Sherwin argues that Plaintiffs cannot prove causation because they cannot identify which specific products Mr. Smith was exposed to at his father's auto shops. As discussed, the court sustained Plaintiffs' objections to Ms. Celesky's declaration. Accordingly, Sherwin's evidence is insufficient to show that no triable issue of material fact remains over whether a Sherwin product exposed Mr. Smith to asbestos.

Next, Sherwin relies on the declaration of Dr. Tuttle to show that no triable issue of material fact remains over whether Mr. Smith's exposure to Sherwin's primer was a substantial factor in causing his injuries. Dr. Tuttle, an expert in toxicology and industrial hygiene, relates that there is no evidence that Mr. Smith had significant asbestos or talc exposure from his presence around work involving Sherwin branded automotive primer because there is no evidence that any primer product used near Mr. Smith contained talc or asbestos. (Tuttle Decl. at p. 40.)

Dr. Tuttle also opines that even if the primers contained talc, bystanders near workers installing or removing asbestos-containing materials face minimal exposure to airborne asbestos because airborne concentrations of asbestos drop significantly with increasing distance. (Id. at p. 41.) Thus, bystanders to such work have minimal exposure to asbestos, if any. (Id.) Dr. Tuttle also cites scientific articles and historic testing results showing that sanding paint containing asbestos did not increase an exposed person's risk of developing disease. (Id. at p.33.)

Dr. Tuttle opines that Mr. Smith's exposure to work with the primers would be indistinguishable from ambient exposure to asbestos over his lifetime. (Id. at p. 42.) Based on her review of the facts of this case, scientific literature, and the nature of talc used in paints, Dr. Tuttle opines that Plaintiff's exposure to Sherwin branded primers did not cause his injuries. (Id. at p. 42 ["Mr. Smith's history indicates that his alleged presence in the proximity of others who used Sherwin Williams brand paints would have comprised only a small fraction of his time visiting his father at work, much less his total lifetime.

Based upon court documents and testimony, the scientific literature, and the nature of talc use in paints, it is highly unlikely that Mr. Smith had any, much less significant, exposure to asbestos and/or talc from his presence near others using Sherwin-Williams brand primers, and the same would not have increased his risk of developing mesothelioma and would be of no causal significance to the development of his disease."].)

Sherwin's expert testimony establishes that even if the primer products at issue contained asbestos-contaminated talc, Mr. Smith's exposure to the dust produced by the process of applying and sanding these products would not have been a substantial factor in causing his mesothelioma. Even if there are other facts that remain in dispute, such as the exact product Mr. Smith was exposed to and whether the product contained asbestos-contaminated talc, Dr. Tuttle opines that Mr. Smith's exposure to any primer would not have increased his risk of asbestos-related disease. Accordingly, Sherwin meets its initial burden to prove that no triable issues of material fact remain over whether Mr. Smith's exposure to a Sherwin product caused his injuries. The burden shifts to Plaintiffs.

iii. Plaintiffs' Burden

In opposition, Plaintiffs present the declaration of Mr. Garza, who opines that "it is more likely than not that Mr. Smith was exposed to asbestos from Sherwin-Williams automotive during sanding and clean-up activities involving the product, which occurred in Mr. Smith's vicinity at auto body shops where he accompanied his father to work." (Garza Decl. at P.207(A).) Relying on Sherwin's own records, Mr. Garza opines that Sherwin's automotive primers contained asbestos-contaminated talc at the time Mr. Smith was exposed. (Id. at P.207(B), (C).)

Citing articles refuting claims that sanding encapsulated or bound asbestos fibers did not increase the risk of asbestos-related disease, Mr. Garza opines that "when asbestos-containing products are installed, removed, cut, manipulated, repaired, or in any way disturbed, workers and bystanders are exposed to significant airborne concentrations of asbestos." (Id. at P.P.207(D), 28-46, 68-206.) Mr. Garza also opines that "significant exposure to asbestos is due to the installation, removal, cutting, manipulation, repairing, or in any way disturbing of an asbestos-containing product, including a product that contains asbestos in its constituent talc, in such a manner that airborne asbestos fiber concentration is released above background concentration." (Id. at P.207(F).)

Mr. Garza opines that "Mr. Smith's exposure to asbestos from Sherwin-Williams automotive primers was sufficient to increase his risk of asbestos related-disease." (Id. at P.207(D).)

Mr. Garza's declaration addresses the points made in Dr. Tuttle's declaration. Specifically, the declaration disputes Dr. Tuttle's opinion that sanding encapsulated our bound asbestos fibers in products like paint does not expose bystanders to asbestos exceeding background levels. (Garza Decl., at P.207(D).) Dr. Garza instead opines that Mr. Smith's exposure to dust created from disturbing the asbestos in the primer products at issue was sufficient to increase his risk of asbestos-related disease. (Id.)

Plaintiffs' competing expert testimony raises a triable issue of material fact over whether Mr. Smith's exposure to Sherwin's primer products caused his injuries. Accordingly, Plaintiffs meet their burden on summary judgment. Thus, Sherwin's motion for summary judgment is denied.

iv. Summary Adjudication

Sherwin also moved for summary adjudication of (1) the third cause of action for strict liability misrepresentation, (2) the fourth cause of action for intentional concealment, and (3) the demand for punitive damages. The motions are moot as to the fourth cause of action and the demand for punitive damages because Plaintiffs dismissed them. The remaining cause of action at issue is the third cause of action for strict liability misrepresentation.

False representation under Restatement of Torts section 402B establishes "liability for injuries caused by justifiable reliance on false advertising." (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1750.) Under this section " '[o]ne engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though [P.] (a) it is not made fraudulently or negligently, and [P.] (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.' [Citation.]" (Id. at pp. 1750-1751.)

"The rule 'is one of strict liability for physical harm to the consumer, resulting from a misrepresentation of the character or quality of the chattel sold, even though the misrepresentation is an innocent one, and not made fraudulently or negligently.' [Citation.]" (Hauter v. Zogarts (1975) 14 Cal.3d 104, 114.) Under section 402-B, the "'reliance need not necessarily be that of the consumer who is injured. It may be that of the ultimate purchaser of the chattel . . . who because of such reliance passes it on to the consumer who is in fact injured, but is ignorant of the misrepresentation.' [Citation.]" (Westlye, supra, 17 Cal.App.4th at p. 1751.)

Sherwin argues that the third cause of action fails because "there is no evidence that Sherwin-Williams had knowledge of any asbestos hazard to end users from alleged contamination-level asbestos bound in a liquid primer." (Motion at p.2.) In opposition, Plaintiffs argue that Sherwin's motion for summary adjudication is unintelligible and improperly splits causes of action, ignoring Plaintiffs' claim that Sherwin failed to warn consumers of the health hazards posed by its products. (Opp. at pp.14-15.)

Plaintiffs appear to conflate the third cause of action with the cause of action for products liability. However, a cause of action for misrepresentation is not a cause of action for products liability or a failure to warn. Because the cause of action for strict liability misrepresentation appears to refer to false representation under the Restatement of Torts section 402B, the court will proceed with the motion for summary adjudication.

When Sherwin asked Plaintiffs to "IDENTIFY all EVIDENCE in support of any alleged Strict Liability - Misrepresentation of action(s) against" Sherwin, Plaintiffs responded in relevant part: "Defendant SHERWIN-WILLIAMS had a duty to warn purchasers and end users of its products of the dangers of asbestos exposure, but failed to do so. SHERWIN-WILLIAMS purposefully misrepresented the safety of their asbestos-containing products, and intentionally and fraudulently warranted them as merchantable and safe for their intended use.

Defendant did each and all of these acts with knowledge of SHERWIN-WILLIAMS'S intentional misrepresentations and warranties of safety, and as a result, Plaintiff was daily exposed to asbestos materials that were being installed, removed, repaired, scraped, cut, shaved, and/or otherwise disturbed without any precautions being taken by Plaintiff or any individuals in his presence. Plaintiff suffered heavy exposure to asbestos that ultimately resulted in his development of mesothelioma." (Leung Decl., Exh.

E at p.32.)

Mr. Smith testified at his deposition that he had no information about whether Sherwin employees or representative ever intentionally concealed information from him or deceived him. (Leung Decl., Exh. N at 552:6-553:9.)

Sherwin meets its burden to prove that Plaintiffs' discovery responses are devoid of facts supporting their cause of action for misrepresentation. The interrogatory response fails to state the factual basis for Plaintiffs' contention that Sherwin misrepresented the safety of its products to Mr. Smith. Additionally, Mr. Smith testified that he had no information about whether Sherwin concealed information from him. (Leung Decl., Exh. N at 552:6-553:9.) Plaintiffs' discovery responses thus contain no facts showing Sherwin misrepresented the safety of its products.

Sherwin meets its burden on summary adjudication. Plaintiffs failed to substantively address this cause of action in their opposition and failed to provide affirmative evidence to support it. Accordingly, the motion for summary adjudication to the third cause of action for strict liability misrepresentation is granted.

V.

Conclusion

Sherwin argued that Plaintiffs' discovery responses were devoid of facts supporting their claim that Mr. Smith was exposed to an automotive primer containing asbestos-contaminated talc. However, Plaintiffs' discovery responses were not factually devoid. Sherwin also presented affirmative evidence to show that Plaintiffs cannot prove that Mr. Smith was exposed to a talc-containing primer as opposed to other formulations that did not contain talc. However, the evidence Sherwin relied on to make this argument was inadmissible.

Sherwin provided affirmative evidence in the form of expert testimony to show that Mr. Smith's exposure to the Sherwin primer products was not a substantial factor in causing his mesothelioma. Plaintiffs presented competing expert testimony raising a triable issue of material fact over whether Mr. Smith's exposure to the primer caused his injuries.

Sherwin's motion for summary judgment is denied. The motion for summary adjudication of the third cause of action for strict liability misrepresentation is granted. The motions for summary adjudication of the fourth cause of action and the demand for punitive damages are moot because Plaintiffs dismissed the fourth cause of action and the demand for punitive damages. Plaintiffs to give notice.

[1] Plaintiffs objected to Ms. Celesky's entire declaration. Objections to evidence must set forth the specific ground for the objection. (Evid. Code, Sec. 353, subd. (a).) Plaintiffs are cautioned that objections to entire declarations are ordinarily improper and may be overruled in the future. Nevertheless, the court will consider the objection.

Case Number: 26STCV08941 Hearing Date: August 27, 2026 Dept: 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA¿ ¿ FOR THE COUNTY OF LOS ANGELES DEPARTMENT 14 ¿ ¿ JANET LARKLY, ¿ Plaintiff,¿¿ v.¿¿ ¿¿ ALBERTSONS COMPANIES, INC., et al., ¿¿ Defendants.¿¿ |