Filed 1/23/23

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION EIGHT 

LAOSD ASBESTOS CASES.

__________________________________ 

FERMIN RAMIREZ, Individually 

and as Personal Representative, etc., 

 Plaintiff and Appellant, 

 v. 

AVON PRODUCTS, INC., 

 Defendant and Respondent. 

B313982

 (Los Angeles County 

 Super. Ct. No. 20STCV22671

 Case No. JCCP4674) 

 APPEAL from an order and judgment of the Superior Court 

of Los Angeles County, David S. Cunningham III, Judge. 

Reversed. 

 Maune Raichle Hartley French & Mudd, David L. Amell, 

Marissa Y. Uchimura; Law Office of Ted W. Pelletier and Ted W. 

Pelletier for Plaintiff and Appellant. 

 Foley & Mansfield, Keith M. Ameele, Margaret I. Johnson; 

Hawkins Parnell & Young, Claire C. Weglarz and Macy M. Chan 

for Defendant and Respondent. 

_________________________
2 

 This case highlights the difficulties both sides encounter 

when litigating a latent injury possibly caused by exposure to a 

toxic substance 50 years ago. After Alicia Ramirez developed 

mesothelioma, she and her husband Fermin Ramirez (the 

Ramirezes) brought this action in 2020 against a number of 

entities, including respondent Avon Products, Inc. (Avon).1 

Relying on a declaration from Lisa Gallo (Gallo Declaration), an 

employee who did not begin work at Avon until 1994, halfway 

through Alicia’s alleged exposure period, Avon moved for and 

obtained summary judgment in its favor. 

 The Ramirezes appeal, contending the trial court erred in 

overruling their objections to the Gallo Declaration. The trial 

court found this declaration was the sole evidence which shifted 

the burden to the Ramirezes to produce evidence sufficient to 

create a triable issue of material fact. We agree the trial court 

abused its discretion in overruling the Ramirezes’ objections. 

 Avon contends that even if the Gallo Declaration was 

erroneously admitted, summary judgment should still be 

affirmed on the ground that the Ramirezes’ discovery responses 

were factually devoid. We find Avon failed to adequately develop 

this theory in the trial court and on appeal. It is forfeited. 

Because we find Avon did not shift the burden to the Ramirezes, 

we need not and do not consider the Ramirezes’ argument that 

the trial court erred in finding they failed to create a triable issue 

1 Alicia died while this appeal was pending, and the action is 

now being prosecuted by Fermin in his individual capacity and as 

Alicia’s successor-in-interest. Because we consider actions which 

predate Alicia’s death, we continue to refer to her by her first 

name for clarity and to refer to appellants collectively as the 

Ramirezes for purposes of this appeal. 
3 

of material fact when they did not offer a statistical analysis 

showing it was more likely than not asbestos were in the Avon 

containers actually used by Alicia. 

 Avon requests that if we find erroneous the trial court’s 

grant of summary judgment, we remand this matter for a ruling 

on Avon’s motion for summary adjudication because this 

alternate motion is based on different facts, law and evidence. 

We do not agree and do not order a remand for this specific 

purpose. 

 We reverse the order granting summary judgment and the 

judgment and remand for further proceedings. 

BACKGROUND 

 In her complaint, Alicia alleged she had been exposed to 

asbestos in several ways, including the use of asbestoscontaminated talcum powder produced by Avon.2 Through her 

discovery responses, Alicia stated she had used Avon’s Imari and 

Elusive talcum powder daily from the mid-1970’s to 2007 and her 

daughter used Avon’s Imari, Sweet Honesty and Odyssey talcum 

powder in the bathroom the two women shared from the 1990’s to 

2007.

 Avon brought a motion for summary judgment on the 

ground that “Plaintiffs cannot prove that Alicia Ramirez came 

into contact with an Avon product contaminated with asbestos. 

Unlike the typical defendant in an alleged asbestos-related 

2 The complaint alleged Alicia was also exposed to asbestos 

through her work in the garment industry and through her 

husband, who was directly exposed to asbestos in his automotive 

repair work and who brought asbestos into the home on his 

clothing and person. 
4 

personal injury case, Avon is a cosmetics and fragrance company 

which has never included or used asbestos as an ingredient or 

component in its products. In other words, its products are 

designed to be asbestos-free. Thus, to succeed on their claims, 

Plaintiffs must prove that the Avon cosmetic talc products at 

issue more likely than not contained asbestos.” 

 Avon also moved in the alternative for summary 

adjudication on the design defect claims in the first cause of 

action for negligence and the second cause of action for strict 

liability; the failure to warn claims in those causes of action; the 

negligent misrepresentation claim in the third cause of action 

and the fraud by non-disclosure claim in the fourth cause of 

action. 

 In support of its motions, Avon offered the declaration of 

Lisa Gallo, who, at the time, was Avon’s vice president of Global 

Innovation, Research, and Development. Gallo had worked in 

Avon’s research and development department since January 

1994. Apparently, Gallo had previously been designated by Avon 

as a person most knowledgeable for purposes of some categories 

of information for a deposition noticed by the Ramirezes pursuant 

to Code of Civil Procedure section 2025.230. In her declaration, 

Gallo stated: “I make the following statements based on either 

my investigation or my own personal knowledge.” Virtually all of 

her statements, however, concerned activities at Avon in the 

1970’s, and all but two of the documents she attached were also 

from that decade. The Ramirezes objected to her declaration and 

attached exhibits on the grounds they lacked foundation, lacked 

personal knowledge, and contained hearsay. 
5 

 The trial court overruled the Ramirezes’ objections, found 

the Gallo Declaration shifted the burden of proof, found the 

Ramirezes had failed to show a triable issue of material fact, and 

granted summary judgment in favor of Avon. The court’s 

amended March 2, 2021 order stated the reasons for the 

determination “are set forth by the Court in both the minute 

order (Exhibit A) and the hearing transcript (Exhibit B).” 

The minute order states: “The motion for summary 

judgment is granted because Avon’s affirmative evidence shifts 

the burden, and Plaintiffs’ evidence fails to raise triable issues of 

asbestos content and exposure. Avon never included or used 

asbestos as an ingredient or component of its cosmetics products. 

Since the [early 1970’s,] Avon has required its talc suppliers 

provide only asbestos-free talc. During the relevant time period, 

Avon had in place internal screening and testing programs as a 

quality assurance measure to ensure that the raw ingredient talc 

it received from suppliers was asbestos-free. No talc was used in 

an Avon cosmetic product if even a single asbestos fiber was 

detected during Avon’s three-step screening program.” There is 

no dispute that all of these facts come from the Gallo Declaration, 

and it was solely that declaration which shifted the burden of 

proof. 

DISCUSSION 

 “[F]rom commencement to conclusion, the party moving for 

summary judgment bears the burden of persuasion that there is 

no triable issue of material fact and that he is entitled to 

judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for 

summary judgment bears an initial burden of production to make 

a prima facie showing of the nonexistence of any triable issue of 
6 

material fact; if he carries his burden of production, he causes a 

shift, and the opposing party is then subjected to a burden of 

production of his own to make a prima facie showing of the 

existence of a triable issue of material fact.” (Ibid.) 

When the moving party is a defendant, it must show that 

the plaintiff cannot establish at least one element of the cause of 

action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant 

has shown that the plaintiff cannot establish at least one element 

of the cause of action by showing that the plaintiff does not 

possess, and cannot reasonably obtain, needed evidence.” (Id. at 

p. 854.) The defendant must “present evidence, and not simply 

point out that the plaintiff does not possess, and cannot 

reasonably obtain, needed evidence.” (Ibid.) Thus, “the 

defendant must ‘support[]’ the ‘motion’ with evidence including 

‘affidavits, declarations, admissions, answers to interrogatories, 

depositions, and matters of which judicial notice’ must or may ‘be 

taken.’ (Code Civ. Proc., § 437c, subd. (b).) 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.)

“Supporting and opposing affidavits or declarations . . . 

shall set forth admissible evidence.” (Code Civ. Proc., § 437c, 

subd. (d).) “Matters which would be excluded under the rules of 

evidence if proffered by a witness in a trial as hearsay, 

conclusions or impermissible opinions, must be disregarded in 

supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 

629, 639.)
7 

 Ordinarily, we review a trial court’s rule on evidentiary 

objections for an abuse of discretion. There is a split of authority 

on evidentiary objections made in connection with a motion for 

summary judgment, however. As the Ramirezes point out, the 

Sixth District Court of Appeal and, to a more limited degree, the 

First District Court of Appeal have held that some or all written 

evidentiary objections should be reviewed de novo. (Pipitone v. 

Williams (2016) 244 Cal.App.4th 1437, 1450–1451; Strobel v. 

Johnson & Johnson (2021) 70 Cal.App.5th 796, 816–817.) We 

agree with the majority of courts which have held that the abuse 

of discretion standard applies.3

I. The Trial Court Erred in Overruling the Objections to the 

Gallo Declaration.

The Ramirezes contend the trial court erred in overruling 

their objections to the Gallo Declaration and attached exhibits 

based on lack of foundation, lack of personal knowledge and the 

hearsay nature of the documents. We agree. 

3 See, e.g., Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 

1109, 1118; Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1169; 

Duarte v. Pacific Specialty Ins. Co. (2017) 13 Cal.App.5th 45, 52; 

O'Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 

8 Cal.App.5th 1184, 1198–1199; Ryder v. Lightstorm 

Entertainment, Inc. (2016) 246 Cal.App.4th 1064, 1072; Jones v. 

Wachovia Bank (2014) 230 Cal.App.4th 935, 951; Serri v. Santa 

Clara University. (2014) 226 Cal.App.4th 830, 852; Ahn v. Kumho 

Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 143–144; Garrett v. 

Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181; 

cf. Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 

1102, 1122–1123 (conc. opn. of Turner, P. J.) (Howard) [listing 

13 decisions and stating the “unanimous” decisions from 2006 to 

2012 applied the abuse of discretion standard]. 
8 

During oral argument, the court explained it was 

overruling the objections because Gallo “was offered as a 

designated corporate representative and person most 

knowledgeable, which does give a basis for her legally to obtain 

and provide the foundational testimony, based on her 

independent review, which I think she did indicate she had done. 

[¶] And also when I look at her title and her duties and 

responsibilities, that further suggests that the declaration is 

appropriately admissible and may be considered by the court as 

affirmative evidence.” 

The Ramirezes contend there are only two types of 

witnesses, lay or expert, and Gallo was not designated as an 

expert. She was therefore limited to testimony reflecting her 

personal knowledge and could not testify to hearsay. We agree. 

The Evidence Code recognizes only two types of witnesses: 

lay witnesses and expert witnesses. “Subject to Section 801, the 

testimony of a witness concerning a particular matter is 

inadmissible unless he has personal knowledge of the matter. 

Against the objection of a party, such personal knowledge must 

be shown before the witness may testify concerning the matter.” 

(Evid. Code, § 702, subd. (a).) Evidence Code section 801 governs 

the testimony of an expert witness, who may provide an opinion 

based on hearsay which need not always be based on personal 

knowledge. 

There is no special category of “corporate representative” 

witness, as the trial court suggested. There is no exemption from 

the Evidence Code for a witness who has conducted an 

“independent review,” whatever the trial court meant by that 

phrase. Gallo was certainly not an independent witness; she is 

an Avon employee who conducted her “investigation and review” 
9 

on behalf of Avon, a party to this action. Even trained and sworn 

police officers who are authorized by the State of California to 

investigate crimes are not exempt from the requirements of the 

Evidence Code when testifying at trial in a non-expert capacity. 

Gallo was simply a lay witness, and as such she was limited to 

matters as to which she had personal knowledge.

The Evidence Code also does not recognize a special 

category of “person previously designated as most 

knowledgeable” witness. “Person most qualified” is a term from 

the Code of Civil Procedure pertaining to depositions of entities 

which are not natural persons. Code of Civil Procedure section 

2025.230 provides: “If the deponent named is not a natural 

person, the deposition notice shall describe with reasonable 

particularity the matters on which examination is requested. In 

that event, the deponent shall designate and produce at the 

deposition those of its officers, directors, managing agents, 

employees, or agents who are most qualified to testify on its 

behalf as to those matters to the extent of any information known 

or reasonably available to the deponent.” (Code Civ. Proc., 

§ 2025.230) 

This section is part of the Civil Discovery Act. (Code Civ. 

Proc., § 2016.010 et seq.) To state what should be obvious, the 

purpose of discovery is to permit a party to learn what 

information the opposing party possesses on the subject matter of 

the lawsuit, and the scope of discovery is not limited to 

admissible evidence. (Code Civ. Proc., § 2017.010 [discovery 

must be relevant but may be of “matter [that] either is itself 

admissible in evidence or appears reasonably calculated to lead to 

the discovery of admissible evidence.”].) Thus, the mere fact that 

a person is asked about a matter at a deposition and provides 
10

information in response does not make that testimony admissible 

at trial. As section 2025.620 makes clear, deposition testimony 

“may be used against any party who was present or represented 

at the taking of the deposition . . . so far as admissible under the 

rules of evidence applied as though the deponent were then present 

and testifying as a witness.” (Code Civ. Proc., § 2025.620, italics 

added.) 

While discovery in general aids both plaintiffs and 

defendants equally, the tools of discovery are intended to benefit 

the party utilizing those tools. The purpose of a deposition is not 

to aid the party whose witness is being deposed; it is to aid the 

opposing party taking the deposition. More specifically, the 

primary purpose of section 2025.230 is not to aid corporate 

entities. Rather, it is intended to simplify discovery for the party 

seeking information from a corporation. “As one treatise 

explains, ‘[t]he purpose of this provision is to eliminate the 

problem of trying to find out who in the corporate hierarchy has 

the information the examiner is seeking. E.g., in a product 

liability suit, who in the engineering department designed the 

defective part?’ (Weil & Brown, Cal. Practice Guide: Civil 

Procedure Before Trial (The Rutter Group 2001) ¶ 8:474, 

p. 8E-18.) The authors of the treatise explain that ‘[u]nder 

former law, the entity was required only to designate “one or 

more” officers or employees to testify on its behalf. This 

permitted considerable “buck-passing” and “I don't know” 

answers at deposition.’ (Ibid.) Under the current law, ‘[i]f the 

subject matter of the questioning is clearly stated, the burden is 

on the entity, not the examiner, to produce the right witnesses. 

And, if the particular officer or employee designated lacks 

personal knowledge of all the information sought, he or she is 
11

supposed to find out from those who do!’ (Id., ¶ 8:475, p. 8E-18.)” 

(Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 

1395--1396.) 

Avon does not cite any California case or statutory law 

holding that notwithstanding the above clear statutory law, a 

person deposed as a corporate person most qualified (PMQ 

deponent) may testify at trial unrestrained by the rules of 

evidence which apply to ordinary lay witnesses. Instead, Avon 

simply argues that the Ramirezes’ “one-sided interpretation of 

the law as requiring corporate PMQs to testify at deposition to 

provide admissions that Plaintiffs can use against the 

corporation, but precluding corporations from offering a 

declaration or even trial testimony to defend against Plaintiff’s 

claims flies against fundamental concepts of due process. Under 

both the state and federal Constitutions, defendants in civil 

actions are entitled to procedural due process protections which 

‘ensure a fair adjudicatory process before a person is deprived of 

life, liberty or property.’ ” 

What Avon is in effect suggesting is that if a party deposes 

a corporate entity, the corporate entity is no longer bound by the 

rules of evidence at any subsequent trial or hearing. This is 

simply nonsense. This would not only eliminate depositions of 

corporations as a practical matter and thereby frustrate the Civil 

Discovery Act, it itself would violate due process, since it would 

place natural persons at a clear disadvantage in defending or 

prosecuting lawsuits where the opposing party is a corporation. 

Avon’s suggestion that it is being treated unfairly because 

it is a defendant or a corporation is simply not true. First, any 

restrictions on the testimony of a PMQ deponent at trial apply 

regardless of whether the corporation is a defendant or a 
12

plaintiff. The rules relating to witness testimony at a trial or 

hearing also apply equally to defendants and plaintiffs. Second, 

the described situation also applies to parties who are natural 

persons. A “natural person” party may be required to testify at a 

deposition to provide admissions which the opposing party can 

use against the “natural person” party. The “natural person” 

party is not then entitled to offer inadmissible evidence at trial to 

defend against his or her own deposition admissions.

Avon next claims that, in truth, due process requires 

corporations to receive special treatment under the rules of 

evidence simply to place them on a level playing field with 

natural persons. Avon argues: “Whereas natural persons may 

often resort to firsthand testimony about events to mount a 

defense, corporations, especially when defending against latent 

injury claims from decades-old exposure, cannot do the same. 

When corporations have existed for generations and the claims 

are based on long-ago activities, it is impossible to mount an 

effective defense the same way that a natural person would. For 

example, many of the individuals who may have contributed to

the collective knowledge of the entity at one point may be unable 

to attend trial, may be impossible to locate or may have passed 

away. Further, the corporation’s knowledge is not unified: unlike 

a single person’s recollection, the corporation’s information is 

stored in fragments and excerpts, requiring synthesis and 

analysis to be meaningful.”

To begin with the obvious: the burden is on the plaintiff to 

prove those “long-ago activities” occurred. The plaintiff will be at 

least as handicapped as the corporate defendant by the 

unavailable corporate witnesses who undertook those long-ago 

activities. Similarly, the plaintiff can only prove the corporation’s 
13

knowledge through those same fragments and excerpts that the 

corporation complains about.

Moving to the perhaps less obvious: The problem is not that 

Avon is a corporation, the problem is that this case involves a 

latent injury which began almost 50 years ago. This is equally a 

problem for the Ramirezes, however. While Alicia may have been 

able to rely on her recollection that she used Avon’s products, 

proving the contents of those products is an entirely different 

matter. If anything, the problem is more acute for the 

Ramirezes, who bear the burden of proving the contents of those 

products. Indeed, the Ramirezes have had to look outside Avon 

for proof that the raw talc Avon used contained asbestos, relying 

on expert analysis of the sources of the talc used by Avon. Avon 

was free to do the same in response, but did not offer any such 

expert testimony in support of its motion.

Ending with the least obvious: If anything, the passage of 

time gave Avon an advantage here because, unlike Alicia, Avon 

knew in the early 1970’s that some sources of talc were

contaminated with asbestos, and that at a minimum there were 

concerns in the scientific community that asbestos in talc 

presented a potential health hazard. Alicia did not have such 

knowledge. According to the Gallo Declaration, Avon almost 

immediately took steps to use only asbestos-free talc, yet Avon 

apparently chose not to document its efforts, or not to preserve 

that documentation. If there is an explanation for this omission, 

it is not found in the record on appeal. At the same time, Avon 

faults Alicia for not keeping the containers she used in the past, 

when Alicia had no reason to suspect there was anything wrong 

with the contents.
14

After arguing for special treatment for corporations, Avon 

attempts to explain why it would be acceptable to give 

corporation witnesses special privileges under the Evidence Code: 

“The corporate witness is a channel through which compiled 

corporate information is conveyed: the proposed affirmative 

testimony is not mere speculation, but rather, can be 

corroborated by underlying evidence which, itself, is admissible. 

Concerns over unreliable testimony—those which animate the 

personal knowledge rule—are thus not implicated by the 

corporate witness’s testimony. Rather such testimony calls for 

the court to engage in the conventional ‘practical compromise’ as 

it would when, for example, a person is asked to testify about his 

‘own age.’ ”

Assuming for the sake of argument that a corporate 

witness completely lacking in personal knowledge of a subject 

could testify based on “underlying evidence which, itself, is 

admissible,” we do not see how such a rule would aid Avon here. 

Avon has not shown that the evidence underlying the Gallo 

Declaration would itself be admissible. Although Gallo does not 

identify any source at all for most of her information, given that 

she did not work at Avon until 1994, her statements involving 

activities before that time cannot be based on personal knowledge 

and must be based on hearsay.

Even assuming for the sake of argument that Gallo could 

“channel” information received from individuals who had 

personal knowledge of events and could testify as witnesses, 

there is no indication that such persons were the source of Gallo’s
15

information.4 Given the time frame involved, Gallo is most likely 

“channeling” information from people who not only lacked 

personal knowledge themselves, but acquired their information 

from people who also lacked personal knowledge.5 This oral 

passing of information raises exactly the reliability concerns 

which animate the personal knowledge requirement, not to 

mention the rule against hearsay. The trial court had no way of 

evaluating the reliability of the information Gallo received.

Further, Gallo’s repetition of that information was not reliable 

simply because she was repeating it as a corporate representative 

rather than on her own behalf. She is still a natural person, 

subject to the foibles of her own memory and understanding. 

Thus, the trial court abused its discretion in overruling the 

Ramirezes’ objections to Gallo’s statements in her declaration.

This lack of personal knowledge is not cured by the 

15 documents which Gallo attached to her declaration in support 

of Paragraphs 7, 8, 10, 11, 12, 13,14, 16, 17, 18, 19, 20 and 21.

Even assuming Gallo is “channeling” or commenting on these 

documents, the documents are all hearsay with no identified 

exception. Thus, they are not themselves admissible evidence.

In addition to being hearsay, four documents were not 

prepared by Avon and there is no indication of how or when Avon 

obtained two of those documents. Exhibit 1 appears to be a 

memorandum summarizing a 1971 symposium held by a division 

4 In that event, of course, the person should have provided 

his or her own declaration. The inconvenience of filing multiple 

declarations is not an exception to the hearsay rule.

5 Since Gallo does not identify any individuals who are the 

sources of her information, it is not possible to be sure.
16

of the Food and Drug Administration; the document does not list 

Avon as a participant or addressee. Exhibit 12 appears to be a 

document prepared by an industry trade group; Avon is not cited 

in the document and is not an addressee. Exhibits 9 and 10 are 

from one of Avon’s suppliers and were sent to Avon, but there is 

no context to the communications, and they do not directly 

correlate to the statements Gallo makes before citing them.

Exhibits 2, 3, 4, 6, 7, 8, 11, 13, 14 and probably 15 were 

prepared by Avon employees, but there is no indication that they 

fall under the business records exception or could satisfy even the

basic requirements for documents to qualify for that exception. 

(See Evid. Code, § 1271 [a document is admissible 

notwithstanding the hearsay rule if: “a) The writing was made in 

the regular course of a business; [¶] (b) The writing was made at 

or near the time of the act, condition, or event; [¶] (c) The 

custodian or other qualified witness testifies to its identity and 

the mode of its preparation; and [¶] (d) The sources of 

information and method and time of preparation were such as to 

indicate its trustworthiness.”].)

For example, Exhibits 4 and 8 are memoranda

summarizing telephone conversations, but there is no testimony 

in the record on appeal that this type of memo was prepared in 

the ordinary course of business by Avon employees. A number of 

exhibits show on their face that they were not prepared at or near 

the time of events described in them. Exhibit 2 memorializes a 

meeting that occurred 4 days earlier and Exhibit 7 is a letter 

from Avon to the OSHA Compliance Office, answering questions 

from OSHA. The letter is dated September 1976 but refers 

generally to activities dating back to 1973; it discusses in some 
17

detail a change of supplier six months earlier.6 Exhibits 4 and 8 

likewise refer to events months or years in the past. For Exhibits 

3, 6, and 13, it is not possible to tell when they were prepared in 

relation to the activities described therein. Exhibit 15 is dated 

1992 but makes assertions concerning the entire history of Avon’s 

talc production.

Not only are the documents themselves hearsay, all contain 

hearsay statements made by someone other than the author. 

Some hearsay statements appear to be made by Avon employees, 

but their background and position at Avon are unknown. It is 

not possible to determine whether these sources of information 

were accurately cited, or if the sources are reliable or had 

personal knowledge of the matters discussed. At least four

documents contain hearsay statements by persons who are not 

Avon employees.

Based on these flaws alone, the trial court abused its 

discretion in admitting the documents, and Gallo’s testimony 

“channeling” those documents.

6 Further, the letter appears to have been prepared as a 

response to a regulatory inquiry, rather than to facilitate Avon’s 

business operations, which again would preclude its admission 

under the business records exception. (See, e.g., People v. McVey

(2018) 24 Cal.App.5th 405, 415 [“ ‘When a record is not made to 

facilitate business operations but, instead, is primarily created 

for later use at trial, it does not qualify as a business record.’ ”].) 

Exhibits 4 and 8, which memorialize conversations with the FDA, 

also appear to fall into this category.
18

Further, even if all the internal documents were admissible 

(as opposed to Avon’s broad claims to OSHA, the FDA, reporters 

and possibly the public)7, the documents would not show that 

Avon’s products never contained asbestos. These documents all 

cover a very limited early time span and only one supplier. They 

provide no basis for reasonable inferences concerning Avon’s 

behavior during the entire 50-year period of Alicia’s claimed 

exposure or the behavior of other suppliers.

For example, we note that Exhibit 15, the Pennisi 

statement, cited in support of Paragraph 21, is particularly 

problematic. In that paragraph, Gallo states: “No talc was used 

in a cosmetic product if even a single asbestos fiber was detected 

in Avon’s three-step screening program.” Gallo cites Exhibit 15 

as a supporting document. This exhibit is a one-page document 

referred to as the Pennisi statement; it resembles a press release, 

and one in draft form at that. It begins: “There has been concern 

in certain countries over the presence of asbestos in cosmetic 

grade talc.” The declaration continues: “As an industry leader, 

Avon has always been committed to ensure that the talcs we sell 

and use are free from asbestos.” The statement contains general 

descriptions of the testing Avon conducts on talc, states that 

Avon requires its vendors to meet stringent standards and claims 

that “[n]o talc is sold if even a single asbestos fiber is detected.” 

The unsigned unsworn statement is dated “April 1992” and 

attributed to “Stephen C. Pennisi, PhD DABT,” but there is no 

indication of Pennisi’s role at Avon or the length of his tenure 

there, nor is there any indication of the basis of his statements or 

7 Exhibit 15, the Pennisi statement, falls into this category. 

Because it played a central role in the summary judgment 

proceedings, however, we discuss it briefly below.
19

the purpose for which the statement was prepared. Among the 

many, many flaws of this document is that it contains no date 

except the one underneath Pennisi’s name.8 There is thus no way 

to determine when the testing or vendor restrictions began or 

how long they continued. 

The trial court abused its discretion in admitting all these 

hearsay documents, but the abuse of discretion was particularly 

egregious in the case of the Pennisi statement. Without the Gallo 

Declaration, Avon did not offer evidence which shifted the burden 

to the Ramirezes. Accordingly, we reverse the order granting 

summary judgment and the judgment. 

II. Avon Did Not Adequately Develop Its Devoid Discovery 

Claim.

Avon contends that even if we find the trial court erred in 

finding the Gallo Declaration sufficient to shift the burden of 

proof, we should still affirm the summary judgment on the 

alternate ground that the Ramirezes’ discovery responses were 

factually devoid. We find Avon has forfeited this claim. 

Avon did not raise this ground in its notice of motion, as is 

required. (Code Civ. Proc., § 1010 [“notice of a motion, other than 

for a new trial, must state when, and the grounds upon which it 

will be made, and the papers, if any, upon which it is to be 

based.”].) While this is not a fatal defect if the ground is 

adequately raised in the motion itself, Avon made at best a brief 

conclusory argument on this ground, unsupported by any legal 

authority. Avon contended: “Plaintiffs’ responses to Avon’s 

discovery requests infer that they have no evidence that proves 

8 There is nothing on the face of the document to connect it to 

Avon apart from Pennisi’s use of the pronoun “we.” 
20

that the Avon products at issue in this case more likely than not 

were contaminated with asbestos. [Citation.] Moreover, 

Plaintiffs have refused to disclose any testing that might show 

the Avon product at issue were [sic] contaminated with asbestos. 

[Citation.] If plaintiffs actually had tests that showed the Avon 

products at issue contained asbestos—a central fact of the case—

they would have most certainly have disclosed them.” 

At the hearing on the motion for summary judgment, 

however, Avon stated: “As Your Honor is aware, there has been 

some issues with the plaintiffs being a little not forthcoming in 

disclosing evidence to Avon. And at this point, plaintiffs still 

have not produced any testing documents, or any evidence that 

any of the products at issue in this case contain asbestos.” 

Counsel for the Ramirezes replied: “Briefly just to address the 

ongoing discovery dispute with Avon, I believe that it is entirely 

irrelevant to the issues before the court today. While Avon may 

have the ability to move to exclude evidence at trial, due to an 

alleged failure to disclose during the course of discovery. [¶] 

There’s no statute or case law that I’m aware of that creates a 

discovery sanction, which directs the court to grant a motion for 

summary judgment where there is an ongoing discovery dispute, 

separate and apart from the existence of a triable issue of fact.” 

The court replied: “I’m not making the decision based on any 

discovery sanction or dispute.” 

 It seems clear from this exchange that there was an 

ongoing discovery dispute of some sort at the time of the motion 

for summary judgment. In light of this dispute, it would be 

unreasonable to infer a lack of evidence from any missing, devoid 

or incomplete responses. Without more information, it seems 

equally likely that any deficient responses were due to the then-
21

ongoing dispute. Avon does not address this dispute at all on 

appeal, however, or explain why it would be more reasonable to 

infer a lack of evidence rather than an unwillingness to produce 

evidence due to a discovery dispute. We are not required to 

develop a party’s argument for it nor to search the record on our 

own seeking deficiencies. (See United Grand Corp. v. Malibu 

Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153, 156 (United 

Grand).) For this reason alone, Avon has forfeited this claim. 

We note that instead of addressing the discovery dispute, 

Avon makes a new argument on appeal: the responses to 

interrogatories are deficient because they simply “restated 

Plaintiffs claims” and gave a “laundry list” of documents, and the 

responses to request for document productions identified only of 

two declarations. Avon did not raise or develop this argument in 

the trial court; in it motion Avon did not cite the Andrews v. 

Foster Wheeler case on which it now relies. (See Andrews v. 

Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107 (Andrews) 

[referring to a plaintiff’s “boilerplate answers that restate their 

allegations, or . . . laundry lists of people and/or documents” as 

capable of shifting the burden to plaintiff on summary 

judgment].) This is another reason to decline to consider Avon’s 

argument. (See Meridian Financial Services, Inc. v. Phan (2021) 

67 Cal.App.5th 657, 704 [theories that were not fully developed or 

factually presented to the trial court cannot create a triable issue 

on appeal].) 

We also decline to consider this new argument because 

Avon has failed to develop it on appeal. Avon summarizes what 

appears to be more than 20 pages of interrogatory responses in 

less than a paragraph, then complains the responses lack detail. 

More than this is required. 
22

A defendant moving for summary judgment “may . . . 

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.” (Aguilar, supra, 25 Cal.4th at p. 855.) 

While “circumstantial evidence supporting a defendant’s 

summary judgment motion ‘can consist of “factually devoid” 

discovery responses from which an absence of evidence can be 

inferred,’ [it must be] noted ‘that the burden should not shift 

without stringent review of the direct, circumstantial and 

inferential evidence.’ ” (Andrews, supra, 138 Cal.App.4th at 

p. 103.)

Avon’s discussion on appeal of the Ramirezes’ discovery 

responses more closely resembles an argument that the 

Ramirezes do not possess sufficient evidence to survive summary 

judgment than it is an analysis of the evidence actually identified 

in those responses. Again, we are not required to develop a 

party’s argument for it nor to search the record on our own 

seeking deficiencies. (See United Grand Corp, supra, 36 

Cal.App.5th at pp. 153, 156.) “We may and do ‘disregard 

conclusory arguments that are not supported by pertinent legal 

authority or fail to disclose the reasoning by which the appellant 

reached the conclusions he wants us to adopt.’ ” (Id. at p. 153.)

III. Avon’s Motion for Summary Adjudication Is Premised on 

the Same Facts as Its Motion for Summary Judgment. 

Avon contends that if we reverse the grant of summary 

judgment we should remand this matter with directions to the 

trial court to consider Avon’s alternative motion for summary 

adjudication. Avon claims that motion was based on different 

facts, law and evidence. We do not agree. 
23

Four of the five claims that are the subject of the summary 

adjudication motion turn on Avon’s knowledge: failure to warn; 

negligent misrepresentation; fraud; and punitive damages. In 

both its notice of motion and its supporting memorandum, Avon 

contends the failure to warn claim fails because “Avon designed 

asbestos-free products and manufactured those products in a way 

to ensure that they did not contain asbestos.” Avon’s discussion 

of the next two claims, negligent misrepresentation and fraud, 

begin: “As noted above, Avon had no reason to believe its 

products were contaminated with any level of asbestos.” Avon’s 

discussion of the punitive damages claim states the claim cannot 

be proved by clear and convincing evidence “especially . . . in 

light of the fact that Avon designed asbestos-free products and 

manufactured those products in a way to ensure that they did not 

contain asbestos.” Even Avon’s discussion of the design defect 

claim is premised on its assertion that it “designed asbestos-free 

products.” 

These arguments are simply variations of Avon’s 

contention that its products were asbestos free. Without the 

Gallo Declaration these claims must all fail. Accordingly, we 

decline to direct the trial court to consider Avon’s alternate 

motion for summary adjudication. 
24

DISPOSITION 

 The order granting summary judgment and the judgment 

are reversed. The matter is remanded for further proceedings. 

Appellant to recover costs on appeal. 

 CERTIFIED FOR PUBLICATION 

 STRATTON, P. J. 

We concur: 

 GRIMES, J. 

 HARUTUNIAN, J.∗

∗

 Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.