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

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 09/03/2026 Hearing on Motion for Summary Adjudication filed by JOVY MENOR (Plaintiff) CRS# 326140833763 in Department 18

Tentative Ruling - 09/02/2026 Patrick McKinney

The Motion for Summary Adjudication filed by JOVY MENOR on 06/18/2026 is Granted in Part.

I.

Background

Jovy Menor and Bernard Menor (“Plaintiffs”) filed a complaint on January 2, 2026 bringing claims against Defendant CVS Pharmacy, Inc. (“CVS” or “Defendant”), among others, alleging that Ms. Menor was diagnosed with mesothelioma caused by exposure to asbestos-containing talcum powders including products marketed and sold by Defendant at its retail stores, among other exposures. Plaintiffs filed a First Amended Complaint (“FAC”) on May 5, 2026. Defendant filed an answer to the FAC on June 1, which included fifty (50) affirmative defenses.

Plaintiffs moves for summary adjudication as to all of Defendant’s affirmative defenses. Defendant states in opposition that it is withdrawing twenty of its affirmative defenses. (Nos. 1, 3, 5, 9, 10, 11, 13, 14, 15, 16, 17, 20, 23, 25, 27, 28, 34, 35, 37 and 45). In reply, Plaintiffs ask the court to strike or adjudicate “improper” affirmative defenses better characterized as traverses. (Nos. 2, 6, 7, 8, 19, 22, 24, 29, 30, 31, 33, 36, 38, 39, 40, 42, 44, 46, 47, 48, 49 and 50). Plaintiffs seek summary adjudication of affirmative defenses Nos. 12 and 26, 18, 21, 32, 41, and 43 on the grounds that CVS has produced no admissible evidence in support. Finally, Plaintiff asks the court to strike or adjudicate affirmative defense No. 4 (setoff) on the grounds that it is a post-verdict issue under Code of Civil Procedure section 877.

II. Legal Standard “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Cal. Civ. Proc. Code § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id.)

When a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion “only if it completely disposes” of the defense. (CCP § 437c(f)(1).) The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or 26CV162809: MENOR, et al. vs CHANEL, INC., et al. 09/03/2026 Hearing on Motion for Summary Adjudication filed by JOVY MENOR (Plaintiff) CRS# 326140833763 in Department 18 she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense. (See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900.)

“Under general rules of civil procedure, an answer must contain the general or specific denial of the material allegations of the complaint controverted by the defendant and a statement of any new matter constituting a defense. The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff. Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter.’”

“Such ‘new matter’ is also known as ‘an affirmative defense.’ Affirmative defenses must not be pled as terse legal conclusions, but rather as facts averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint. A party who fails to plead affirmative defenses waives them.” (Quantum Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812, 813 [internal citations omitted]; Dept. of Finance v. City of Merced (2019) 33 Cal.App.5th 286, 294.)

III.

Discussion

The court finds that Defendant’s amended responses to Form Interrogatory 15.1 and companion Request for Production 22 as attached as Exhibits B and C to the moving Clancy Declaration are factually devoid as to each affirmative defense. Defendant’s amended response to FROG 15.1 states objections and simply states a contention that Defendant never manufactured, marketed, sold, or supplied any asbestos-containing products. Defendant then identifies only its PMQ and custodian of records and refers generally to discovery produced in this action. Defendant’s response to RFPD 22 only identifies Plaintiffs’ own discovery responses.

However, as noted below, Defendant has served further amended responses since the motion was served.

Withdrawn Affirmative Defenses

Based on Defendant’s representation that it is withdrawing affirmative defense Nos. 1, 3, 5, 9, 10, 11, 13, 14, 15, 16, 17, 20, 23, 25, 27, 28, 34, 35, 37 and 45, Plaintiffs’ MSA is GRANTED as to these affirmative defenses.

“Traverse” Affirmative Defenses (Nos. 2, 6, 7, 8, 19, 22, 24, 29, 30, 31, 33, 36, 38, 39, 40, 42, 44, 46, 47, 48, 49 and 50)

Defendant contends in opposition that summary adjudication is inappropriate as to most of these affirmative defenses because they are not true affirmative defenses subject to MSA. Rather,

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 09/03/2026 Hearing on Motion for Summary Adjudication filed by JOVY MENOR (Plaintiff) CRS# 326140833763 in Department 18 Defendant contends, they are “traverses”, which seek to negate an element of Plaintiff’s claim, for which Plaintiff retains its burden of production. Plaintiffs acknowledge the point and ask the court to instead strike these defenses.

Having reviewed the affirmative defenses Plaintiff contends are subject to being stricken, the court rules as follows: The court STRIKES Defendant’s second, sixth, nineteenth, twentysecond, twenty-fourth, twenty-ninth, thirtieth, thirty-first, thirty-third, thirty-sixth, thirty-eighth, thirty-ninth, fortieth, forty-second, forty-fourth, forty-sixth, forty-seventh, forty-eighth, fortyninth, and fiftieth affirmative defenses. (2, 6, 19, 22, 24, 29-31, 33, 36, 38, 39, 40, 42, 44, 46-50.) Each of these defenses alleges deficiencies or seeks to negate elements of Plaintiff’s claims for which Plaintiffs retain the burden of proof at trial.

The court GRANTS Plaintiffs’ MSA as to Defendant’s seventh and eighth affirmative defenses, which contend that Defendant did not own, control, maintain, lease, rent, occupy, or otherwise exercise control over the subject premises or exercise control over Plaintiffs and/or their employees. These affirmative defenses do not appear to be germane to Plaintiffs’ claims and Defendant’s responsive separate statement offers no affirmative evidence to create a triable issue of fact as to any of these defenses.

Affirmative Defenses Nos. 12 and 26, 18, 21, 32, 41, and 43

The court DENIES Plaintiffs’ MSA as to Defendant’s twelfth (12th) and twenty-sixth (26th) affirmative defenses, which seek indemnity, contribution and apportionment of fault and allege that Plaintiff’s injury was proximately caused by parties or nonparties outside of Defendant’s control. Defendant served third amended responses to FROG 15.1 on August 19. The third amended response as to these affirmative defenses names other defendants in this action who may bear fault, which is sufficient to raise a triable issue of fact as to this defense.

The court GRANTS Plaintiffs’ MSA as to Defendant’s eighteenth (18th) and twenty-first (21st) affirmative defenses, which states that Defendant’s activities conformed to applicable statutes, regulations and industry standards (18) and raises a foreseeability/state of the art affirmative defense (21). Plaintiffs bear the burden of proving at trial every element of their Negligence Cause of Action, including duty and breach. Further, Defendant’s third amended response to FROG 15.1 adds only bare contentions and remains factually devoid as to these defenses.

The court GRANTS Plaintiffs’ MSA as to Defendant’s thirty-second (32nd) affirmative defense, which disclaims responsibility for the product line or items Plaintiffs claim it manufactured, distributed or sold. Defendant’s third amended response to FROG 15.1 adds only a contention that there is no evidence that Ms. Menor used its products. This does not create a triable issue of material fact.

The court STRIKES Defendant’s forty-first (41st) affirmative defense, which states that Defendant lacks liability because its products did not contain asbestos. Plaintiffs bear the burden

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 09/03/2026 Hearing on Motion for Summary Adjudication filed by JOVY MENOR (Plaintiff) CRS# 326140833763 in Department 18 of production on the issue of product identification and asbestos contamination at trial. Moreover, Defendant’s General Denial is sufficient to contest Plaintiffs’ ability to prove these issues at trial.

The court GRANTS Plaintiffs’ MSA as to Defendant’s forty-third (43rd) affirmative defense, which states that Plaintiff’s injury was caused by unknown, spontaneous, idiopathic, or genetic causes. The Third Amended response to FROG 15.1 does not submit affirmative evidence or state facts sufficient to create a triable issue of fact as to this defense.

Affirmative Defense No. 4

Plaintiff asks the court to strike this affirmative defense, which claims that Plaintiffs’ claims should be diminished in whole or in part in the amount paid to Plaintiffs by any party or nonparty with whom Plaintiffs have settled or may settle. Defendant’s Third Amended Response to FROG 15.1 characterizes this defense as a legal contention and offers no facts or evidence.

The court STRIKES Defendant’s fourth affirmative defense. The court agrees with Plaintiffs that this is a post-trial issue and not a proper affirmative defense.

IV. Orders The motion for summary adjudication is GRANTED IN PART. Plaintiffs’ MSA is GRANTED as to affirmative defenses 1, 3, 5, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 20, 21, 23, 25, 27, 28, 32, 34, 35, 37, 43 and 45. The court STRIKES affirmative defenses 2, 4, 6, 19, 22, 24, 29-31, 33, 36, 38, 39, 40, 41, 42, 44, 46-50. The court DENIES Plaintiffs’ MSA as to affirmative defenses 12 and 26.

CONTESTING TENTATIVE ORDERS

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 09/03/2026 Hearing on Motion for Summary Adjudication filed by JOVY MENOR (Plaintiff) CRS# 326140833763 in Department 18 8. Select Proceed.