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

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/25/2026 Hearing on Motion for Summary Adjudication filed by JOVY MENOR (Plaintiff) + CRS# 839480703149 in Department 18

Tentative Ruling - 08/21/2026 Patrick McKinney

The Motion for Summary Adjudication filed by JOVY MENOR, BERNARD MENOR on 06/17/2026 is Granted in Part.

Plaintiffs Jovy Menor’s (“Mrs. Menor” or “Plaintiff”) and Bernard Menor’s (collectively “Plaintiffs”) Motion for Summary Adjudication (“MSA”) of defendant Walmart Inc.’s (“Defendant”) Affirmative Defenses Nos. 1-8, 10-13, 15-18, and 22-26 is GRANTED IN PART and DENIED IN PART.

Plaintiffs apparently allege that Mrs. Menor was exposed to respirable asbestos by her use of allegedly asbestos-containing talcum powder (“talc”) products purchased from Defendant retailer, including Defendant’s Equate brand cosmetic talc products.

The Court GRANTS Plaintiffs’ MSA of Defendant’s Affirmative Defenses Nos. 1-6, 8, 10, 11, 13, 15-18, 22 and 24.

The Court DENIES Plaintiffs’ MSA of Defendant’s Affirmative Defenses Nos. 7 and 12.

The Court STRIKES Defendant’s Affirmative Defenses Nos. 23, 25 and 26 [24(2)] for the reasons stated below.

STANDARDS FOR MSA OF AFFIRMATIVE DEFENSES

“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.” (CCP § 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 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.

Sup.Ct. (2012) 210 Cal.App.4th 889, 900.) 26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/25/2026 Hearing on Motion for Summary Adjudication filed by JOVY MENOR (Plaintiff) + CRS# 839480703149 in Department 18 “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.)

ANALYSIS OF MSA

Plaintiffs attempt to meet their initial burden of production on summary adjudication of Defendant’s challenged Affirmative Defenses (“AD”) pursuant to Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 106-107 (Defendant’s “factually devoid” responses to Plaintiff’s sufficiently comprehensive written and deposition discovery). The Court finds that Plaintiffs’ Form Interrogatory (“FROG”) No. 15.1 seeking all facts and identification of all witnesses and documents regarding each of Defendant’s AD constitutes sufficiently comprehensive written discovery regarding Defendant’s challenged AD.

The Court finds Defendant’s Response to FROG No. 15.1 factually devoid as to all of the challenged AD. Defendant’s Response states that it has no evidence to support these AD at the time of service of its Responses to FROG No. 15.1.

The Court finds that Plaintiffs have met their initial burden of production as to all of Defendant’s AD Nos. 1-8, 10-13, 15-18, and 22-26 and the burden therefore shifts to Defendant to produce evidence sufficient to create triable issues of material fact as to each AD.

The Court GRANTS Plaintiff’s MSA of Defendant’s AD No. 1 (Plaintiffs’ Complaint and each Cause of Action therein fail to state a cause of action). The time for Defendant to challenge the adequacy of Plaintiffs’ operative pleadings by Demurrer, Motion to Strike or Motion for Judgment on the Pleadings has passed. Further, the Court may not properly consider supplemental discovery responses served after the filing of a dispositive motion. Instead, the Motion is decided based on the relevant operative discovery responses as of the date of filing of the dispositive motion.

Moreover, Defendant’s General Denial adequately contests all issues and elements that Plaintiffs must prove at trial. The above ruling notwithstanding, if Plaintiffs fail to present evidence sufficient to establish each element of their claims at trial, Defendant may avail itself of the appropriate remedies when Plaintiffs have concluded their case in chief.

Defendant’s two Opposition Separate Statements appear to waive Defendant’s AD Nos. 2

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/25/2026 Hearing on Motion for Summary Adjudication filed by JOVY MENOR (Plaintiff) + CRS# 839480703149 in Department 18 (estoppel), 3 (waiver), 5 (uncertainty), 6 (Laches), 8 (Statute of Limitations), 11 (res judicata/collateral estoppel), 13 (lack of maintenance), 15 (improper use or modification) and 18 (preemption) based on Defendant’s failure to contest Plaintiff’s Undisputed Material Facts (“PUMF”) and failure to present any additional material facts (“DAMF”) to create triable issues of material fact as to the AD.

Wherefore, the Court GRANTS Plaintiffs’ MSA of Defendant’s AD Nos. 2, 3, 5, 6, 8, 11, 13, 15 and 18.

The Court GRANTS Plaintiffs’ MSA of Defendant’s AD No. 4 (failure to mitigate damages). Defendant’s opposition MPA states that there is evidence that Mrs. Menor elected to cease working when she was diagnosed with malignant mesothelioma although her physicians did not place any restrictions on her ability to continue to work. However, no such evidence or DAMF are presented in either of Defendant’s two Separate Statements to support this assertion. The fact that Plaintiff’s expert witness Robert Johnson may testify at trial regarding Plaintiffs’ alleged damages is not evidence sufficient to create triable issues of material fact that Plaintiffs failed to mitigate their damages.

The Court DENIES Plaintiffs’ MSA of Defendant’s AD No. 7 (failure of others to exercise reasonable care). Defendant’s Opposition evidence is sufficient to create triable issues of material fact such that Defendant may at trial present evidence regarding its alleged reliance on representations made by its cosmetic talc product suppliers that the talcum powder used to manufacture the products was not contaminated with asbestos. However, regardless of the Court’s ruling above, Plaintiffs bear the burden of production at trial on all elements of their Negligence and Fraud-Based Causes of Action against Defendant; thus, evidence that Defendant reasonably relied on its suppliers’ representations the products were not contaminated with asbestos or that Defendant’s reliance was at most negligent is likely admissible at trial.

The Court GRANTS Plaintiffs’ MSA of Defendant’s AD Nos. 9 (Defendant exercised reasonable care) and 10 (intervening acts of others). The only evidence presented by Defendant in its two Separate Statements as to AD Nos. 9 and 10 are a series of emails dated 8/19/2016 regarding the fact that defendant Vi-Jon, Defendant’s supplier of store brand Equate talcum powder products, had suddenly made a decision to stop making and supplying its products incorporating talcum powder and would immediately cease shipments to Defendant of already produced talcum powder products.

The emails, which are not authenticated, contain hearsay statements regarding what Vi-Jon represented to Defendant regarding the sudden discontinuance of supply of these products, which is represented to be “negative press.” The emails state that another supplier, Premier Brands, was also considering removing talc from its products and that the FDA had not issued any regulations limiting the sale or use of cosmetic talcum powder products. However, the emails are clear that Defendant was aware that juries were awarding damages judgments to plaintiffs who alleged that Johnson & Johnson cosmetic talc products had caused them to develop ovarian cancer.

There is no evidence in the emails that Defendant decided to cease selling any cosmetic talc products at that time, including products already

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/25/2026 Hearing on Motion for Summary Adjudication filed by JOVY MENOR (Plaintiff) + CRS# 839480703149 in Department 18 supplied to Defendant. The Court finds that this evidence is insufficient to create triable issues of material fact that Defendant exercised reasonable care with respect to its sale of allegedly asbestos contaminated talc or that the intervening acts of others excuses Defendant from liability in this action.

The Court DENIES Plaintiffs’ MSA of Defendant’s AD No. 12 (lack of notice). Defendant’s Opposition evidence is sufficient to create triable issues of material fact such that Defendant may at trial present evidence regarding its allegation that it did not receive notice that its cosmetic talcum powder products might be contaminated with asbestos.

The Court GRANTS Plaintiffs’ MSA of Defendant’s AD No. 16 (post-distribution modification, alteration, or change of product). The evidence cited by Defendant in Opposition (DAMF Nos. 10, 11, 13 and 14) regards Defendant’s requirements for cosmetic talc products and its suppliers’ representations about the products prior to or at the time of distribution. None of this evidence reasonably supports a finding that Plaintiffs or unidentified third parties modified or altered the products Plaintiffs purchased from Defendant after the time of purchase.

The Court GRANTS Plaintiffs’ MSA of Defendant’s AD No. 17 (acts of other parties). As pleaded, AD No. 17 is improperly duplicative of AD No.

7.

The Court GRANTS Plaintiffs’ MSA of Defendant’s AD No. 22 (sufficient warning provided). The evidence presented by Defendant that defendant Vi-Jon’s person most qualified testified at deposition that Vi-Jon provided warnings to its customers including Defendant in the form of a disclaimer as to the accuracy of its MSDS does not constitute evidence to support a finding that Defendant provided warnings to retail purchasers of its talc-containing products like Plaintiffs that the products might be contaminated with trace amounts of asbestos or might cause cancer.

The Court STRIKES Defendant’s AD No. 23 (Defendant’s acts or omissions not a substantial factor in causing Plaintiffs’ Injuries). Plaintiffs bear the burden to prove substantial factor causation at trial. Therefore, Defendant’s General Denial adequately allows Defendant to present evidence at trial after Plaintiffs’ case in chief that Mrs. Menor’s alleged exposures to Defendant’s allegedly asbestos-contaminated cosmetic talc products were not a substantial factor in causing her malignant mesothelioma. Similarly, because causation must be proven by Plaintiffs, Defendant may present admissible evidence at trial to support a finding that there are alternative causes of Mrs. Menor’s malignant mesothelioma other than exposures to asbestos.

The Court GRANTS Plaintiffs’ MSA of Defendant’s AD No. 24 (state of the art). This AD alleges that Defendant’s allegedly asbestos-contaminated cosmetic talc products “were as safe as could be designed under the state of technology and medical and scientific knowledge existing at the time the products were manufactured.” None of the evidence Defendant presents in Opposition supports such a finding.

The Court STRIKES Defendant’s AD Nos. 25 (additional affirmative defenses) and 26 [24(2)]

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV162809: MENOR, et al. vs CHANEL, INC., et al. 08/25/2026 Hearing on Motion for Summary Adjudication filed by JOVY MENOR (Plaintiff) + CRS# 839480703149 in Department 18 (right to amend Answer). Neither of these AD is a proper or permissible affirmative defense. With respect to AD 25, any new matter constituting an affirmative defense must be expressly pleaded in the defendant’s operative Answer or it is waived. (Quantum Settlement Agreement Cases and Dept. of Finance, supra.) AD No. 26 misstates the law and is not an affirmative defense. Where, as here, Defendant has not amended its Answer as a matter of right within ten days of filing the Answer, Defendant must seek leave of court to amend its Answer. Defendant’s right to timely seek leave to amend its Answer is a statutory right that does not need to be preserved by propounding an unnecessary and frivolous affirmative defense.

CONTESTING TENTATIVE ORDERS

Notify the Court and all other parties no later than 4:00 pm the day before the scheduled hearing and identify the issues you wish to argue through the following steps.

1. Log into eCourt Public Portal - https://eportal.alameda.courts.ca.gov 2. Case Search 3. Enter the Case Number and select Search 4. Select the Case Name 5. Select the Tentative Rulings Tab 6. Select Click to Contest this Ruling 7. Enter your Name and Reason for Contesting 8. Select Proceed.