Motion-Secondary: HAROLD KOEPKE et al VS. FORD MOTOR COMPANY et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Kazan, McClain, Sattetley & Greenwood

A Professional Law Corporation

* www. kazanlaw.com

ison Street, Suite 400 + Oakland, California 94607
510) 835-4913,

55 Hi

(540) 302-1000 =

Jack London Market +

os

So wm NY DA HW eB wD

Joseph D. Satterley, Esq. (C.S.B. #286890)

Ted W. Pelletier, Esq. (C.S.B. #172938)

Michael T. Stewart, Esq. (C.S.B. #253851)
mstewart@kazanlaw.com

KAZAN, MeCLAIN, SATTERLEY & GREENWOOD

A Professional Law Corporation
Jack London Market

55 Harrison Street, Suite 400
Oakland, California 94607
Telephone: (510) 302-1000
Facsimile: (510) 835-4913

Attorneys for Plaintiffs

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUN 20 2014

Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

HAROLD KOEPKE and NANCY KARIDIS-
KOEPKE,

Plaintiffs,

v.

FORD MOTOR COMPANY, et al.,
Defendants.

MSTEWAR1/1316275.1

Case No. CGC-13-276217

PLAINTIFFS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT THE
HERTZ CORPORATION’S MOTION
FOR RECONSIDERATION OF THE
ORDER ON HERTZ’S MOTION FOR
SUMMARY JUDGMENT/
ADJUDICATION

Date:
Time:
Dept.:
Case Filed:
Trial Date:

June 24, 2014

9:30 a.m.

503 (Hon. Teri L. Jackson)
December 3, 2013

June 16, 2014

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO HERTZ’S MOTION
FOR RECONSIDERATION OF THE ORDER ON HERTZ’S MSJ/AKazan, McClain, Satterley & Greenwood

A Professional Law Corporation

* Oakland, Califomia 94607

© Bax: (510) 835-4913 © www.kazanlaw.com

+ 55 Harrison Stecet, Suite 400

(510) 302-1000

Jack London Market

TABLE OF CONTENTS
Page
L INTRODUCTION... eeeesecseseeesectscsnessscenencansncensseeeresesnsnnsescenseenssuseseersageadeseeaeenesacseseeeneasess 1
Ih. STATEMENT OF FACTS... cccccssesssssssesssersseessensscassesnssesesesnssceeseasensanessssrsssersaaseananeenearee 1
A. No new facts: Heriz provides no new evidence. ..
B. No new law: The Taylor and O'Neil decisions are not new, and they were
previously CHE. noice sess essssestesessesseseserssuseessesssemanaressssssneerssseesserescensuesieeeneare 2
c. No new circumstances: This Court’s decision on strict liability did not
exonerate Hertz from liability for negligence, fraud, or conspiracy to
defraud...
TI. = LEGAL ARGUMENT. ue ccc esseescesnesseessesseessnessssnessnssessnessuesesesenesnesessnmesnsenssessenensets 3
A. Because Hertz fails to identify any new facts, law, or circumstances, its
motion for reconsideration should be denied. 0... cece ssceeteeenessereserseereenesesreseeseeee 3
IV. CONCLUSION. 6
MSTEWART/316275.1

i

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO HERTZ’S MOTION
FOR RECONSIDERATION OF THE ORDER ON HERTZ’S MSVAKazan, McClain, Satterley & Greenwood

A Professional Law Corporation
Jack London Masket + 55 Harrison Street, Suite 400 + Oakland, California 94607

+ Pax: (510) 835-4913 + www:kazanlaw.com

610) 302-1000

0 CBC ND hw BR BW NY

YPN NY NM NN NY NY Ye Be Be me RB RB OR Re
eS ND BD HA F&F BW NY —- OD CF KN DB HW BW PW CO

TABLE OF AUTHORITIES
Page
CASES
Baldwin vy. Home Sav. of America (1997) 59 Cal. App.Ath 1192... ccs seseessesssteenssseeenessneeseaneess 4
Gilberd v. AC Transit (1995) 32 Cal. App.4th 1494... scessesnesessesssescensscenessesssersseenssnesessesseesrees 14
Nelson v. Superior Court (2006) 144 Cal. App.4th 689 occ cee ceesesaeerssesneseesneaesueseesneenees 5

New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206....

O'Neil v. Crane Co, (2012) 53 Cal. 4th 335 vecsccsscsesseessessessressessersnssseeecsnseneeansenrenecestereeneeensenneets 2,4
Rowland v. Christian (1968) 69 Cal.2d VOB ...sssssssssssssssussssssussssessnsssessnssssstsssssenunnseessseennset 5
Stone v. Regents of University of California (1999) 77 Cal. App Ath 736 ...c.cesscscsessresesssesesesteenes 5
Tauber-Arons Auctioneers Co. v. Superior Court (1980) 101 Cal. App.3d 268 .acccceesseeecrnnnes 5
Taylor v, Elliott Turbomachinery Co., Inc. (2009) 171 Cal. App.4th 564... eeescesessnesresneenees 2,4
STATUTES

Civil Code section 1714 ..ccicicesesessccssseessssransesecersesescsveuuenasnesnssnequetesseesevsneesnsveauersstesensneseeseeesenees 5
Code of Civil Procedure section 1008.0... ccccccsessscsesesecessessssseseersssesserssseseanecseseeseaeenscessenenees 1,3,4,5

MSIEWART/1310275.1 ii

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO HERTZ’S MOTION
FOR RECONSIDERATION OF THE ORDER ON HERTZ’S MS/AKazan, McClain, Satterley & Greenwood

A Professional Law Corporation

55 Harrison Street, Suite 400 * Oakland, California 94607

Jack London Macket +

+ wwwkazanlaw.com,

(510) 302-1000 + Fax: (510) 835-4913,

L INTRODUCTION

Defendant The Hertz Corporation’s (Hertz) motion for reconsideration of the order on its
motion for summary judgment/adjudication is “utterly specious. What [Hertz] essentially argues is
that [Code of Civil Procedure] section 1008 does not apply when the litigant disagrees with the
irial court’s ruling.” [Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.}

Hertz offers no new facts, no new law, and no new circumstances. Instead, Hertz argues
that this Court misunderstood existing law when it analyzed plaintiffs’ causes of action for
negligence, fraud, and conspiracy to defraud. Hertz incorrectly insists that the order summarily
adjudicating plaintiffs’ strict liability cause of action legally required this Court to eliminate all of
plaintiffs’ claims.

But this Court understood that, in ruling of the motion for summary judgment/adjudication,
it should not conflate the distinct public policy factors that govern plaintiffs’ several liability
theories. This Court ruled that the relatively narrow strict liability doctrine does not match the
facts of this case, likely because Hertz was a seller of used vehicles, and because plaintiff Harold
Koepke’s main exposures to the asbestos-containing automotive products occurred before Hertz
sold them, This, at most, established only that Hertz was not in the “chain of distribution” so as to
face strict products liability. It did not affect the doctrines of negligence, fraud, and conspiracy to
defraud, which properly apply to Hertz’s conduct in its 20-year business relationship with Koepke.
Ata minimum, as this Court ruled, Hertz did not meet its initial burdens in moving to strike those
additional causes of action.

Hertz’s baseless motion for reconsideration should be denied.

I. STATEMENT OF FACTS
A. No new facts: Hertz provides no new evidence.
Hertz relies upon no new evidence. Instead, Hertz merely cites the June 12, 2014 order

partially denying its motion and plaintiffs’ May 1, 2014 complaint. [Ranucci Decl. at Exhs, A-C.]

MSTEWART/13 6275.1 }

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO HERTZ’S MOTION
FOR RECONSIDERATION OF THE ORDER ON HERTZ’S MSH/AKazan, McClain, Satterley & Greenwood

A Professional Law Corporation,

55 Harrison Street, Suite 400 ¢ Oakland, California 94607

» Fax: (510) 835-4913 + www-kazanlaw.com

Jack London Market *

(510) 302-1000

B. No new law: The Taylor and O’Neil decisions are not new, and they were
previously cited.

In this motion for reconsideration, Hertz anchors its “no duty” argument to Taylor v. Elliott
Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, and O'Neil v. Crane Co. (2012) 53 Cal.4th
335. [See Hertz’s MPA at 5:5-17.] Not only are Taylor and O’Neil five- and two-year-old
decisions, but this Court already considered them in deciding Hertz’s prior motion for summary
judgment/adjudication. Taylor was explained in Hertz’s moving papers. [Hertz’s MSJ/A Brief,
Exh. 1 to Stewart Decl. at 8:19-9:7.] And O'Neil was explained in plaintiffs’ opposition papers.
[Plaintiffs’ MSJ/A Brief, Exh. 2 to Stewart Decl. at 17:2-15, 18:19-24.]

Cc. No new circumstances: This Court’s decision on strict liability did not
exonerate Hertz from liability for negligence, fraud, or conspiracy te defraud.

Hertz misleadingly implies, by adding false quotation marks, that this Court purportedly
found Hertz to be located outside each asbestos-containing vehicle’s and replacement part’s
“chain of distribution.” [See Hertz’s MPA at 3:12-13.] This Court made no such determination.

Contrary to Hertz’s interpretation of the “essence” of the order on Hertz’s motion for
summary judgment/adjudication, the order actually states:

The Motion of Defendant The Hertz Corporation (“Hertz”) for
Summary Judgment or alternatively Summary Adjudication was set
for hearing on June 10, 2014 at 9:30 a.m. in Department 503 before
the Honorable Teri L. Jackson. The matter was argued and
submitted, and good cause appearing therefore, IT IS HEREBY
ORDERED THAT:

Defendant The Hertz Corporation’s Motion for Summary Judgment
is denied and its alternate Motion for Summary Adjudication is
denied as to issues 1, 4, 5, 6, 7 and 8, granted as to issue 2 (breach of
implied warranty) and issue 3 (strict liability).

As to Summary Judgment and Summary Adjudication issues 1, 4, 6,
7 and 8, defendant failed to sustain its initial burden under either
prong of Aguilar. Defendant failed to sustain its initial burden of
demonstrating that plaintiffs do not possess and cannot reasonably
obtain evidence supporting these claims. Defendant is precluded
from successfully invoking the factually devoid prong of Aguilar
because it did not demonstrate that plaintiffs failed to provide
meaningful responses to comprehensive discovery designed to elicit
all the evidence plaintiffs have to support their contention of liability
against defendant. Defendant also failed to sustain its initial burden
as to these issues because it failed to negate an essential element of

MSTEWART/1316275.1 3

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO HERTZ’S MOTION
FOR RECONSIDERATION OF THE ORDER ON HERTZ’S MSJ/AKazan, McClain, Satterley & Greenwood

A Professional Law Corporation

+ wwwikazanlaw.com

55 Harrison Street, Suite 400 * Oakland, California 94607

« Fax: (510) 835-4913

{510} 302-1000

Jack London Matket +

oc SG DN

10
i
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

plaintiffs’ claims.

As to Summary Adjudication issue 5, defendant failed to sustain its
burden of demonstrating that the sophisticated user defense applies
to bar plaintiffs’ claims against it.

As to Summary Adjudication issue 2 (breach of implied warranty),
defendant sustained its initial burden and plaintiffs’ opposition did
not oppose adjudication of this cause of action nor did plaintiffs
submit admissible evidence creating a triable issue whether
defendant is liable for breach of implied warranty.

As to issue 3 (strict liability) defendant sustained its initial burden
and plaintiffs did not submit admissible evidence creating a triable
issue whether defendant is liable under strict liability. Public policy
limits imposition of liability under the circumstances in this case.

IT IS SO ORDERED.

[6/12/14 Order, Exh. B to Ranucci Deel. at 1:21-2:19 (emphasis added).] Thus, the order does not
refer to any “chain of distribution,” and such a finding would not affect causes of action beyond
strict liability.

Ti. LEGAL ARGUMENT

A Because Hertz fails to identify any new facts, law, or circumstances, its motion

for reconsideration should be denied.

Code of Civil Procedure section 1008 requires that any reconsideration motion must arise
from “new or different facts, circumstances, or law.” These requirements “specif[y] the court’s
jurisdiction” pertaining to requests for reconsideration, so that the trial court lacks power to grant a
defective motion. [Code Civ. Proc. § 1008(e); Gilberd, supra, 32 Cal.App.4th at 1499-1500.]

No new facts: A motion for reconsideration cannot be based upon evidence that should
have been presented before the trial court’s first decision. [Vew York Times Co. v. Superior Court
(2005) 135 Cal_App.4th 206, 212-213.] In New York Times, the trial court granted summary
judgment, and the plaintiff sought reconsideration. [/d. at 213.] The plaintiff submitted “new”
deposition testimony from two witnesses but, “Although the evidence was new to the trial court, it
was available to [plaintiff] throughout the discovery process and . . . [plaintiff] failed to provide a

satisfactory explanation for its failure to present it earlier.” [Jd.]

MSTEWAR1/1316275.1 3

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO HERTZ’S MOTION
FOR RECONSIDERATION OF THE ORDER ON HERTZ’S MSI/AKazan, McClain, Satterley & Greenwood

‘A Professional Law Corporation

+ 55 Harrison Street, Suite 460

{510} 302-1000 ° Fax: (510} 835-4913

* Oakland, California 94607

+ www.kazanlaw.com,

Jack London Market

= o> OD Ff YD DWH FF WN

aA WwW FF W N

het
_

Here, Hertz’s motion for reconsideration likewise offers no new facts. Hertz submits no
new documents, testimony, or other evidence.

No new law: A motion for reconsideration also cannot be based upon legal authorities that
should have been presented before the trial court’s prior order. [Baldwin y. Home Sav. of America
(1997) 59 Cal-App.4th 1192, 1196.] In Baldwin, the losing party tried to undo an order by citing
previously available case law: “[Adoailem v. Coldwell Banker Com. Group, Inc. (1994) 25
Cal.App.4th 1827] clearly does not provide the ‘new’ law that authorizes trial court
reconsideration of a prior order, because the opinion issued in 1994 and could therefore have been
provided [to] the trial court prior to its initial ruling on the motion for attorney fees.” [Jd.] The
losing party offered no legitimate reason why it had not previously found and cited the two-year-
old Moallem decision. [/d. at 1200-1201.]

Here, there is no new law. Indeed, Hertz does not even cite “different” law, because
Taylor and O’Neil were already briefed for this Court.

No new circumstances: Similarly, a motion for reconsideration cannot be based upon the
losing party’s assertion that the trial court misinterpreted the law in its initial ruling. [Gilberd,
supra, 32 Cal.App.4th at 1500.] “Since in almost all instances, the losing party will believe that
the trial court’s ‘different’ interpretation of the law or facts was erroneous, to interpret the statute
as the respondent urges would be contrary to the clear legislative intent to restrict motions to
reconsider to circumstances where a party offers the court some fact or authority that was not
previously considered by it.” [d.]

Here, Hertz is left to assert that the order on its motion for summary judgment/adjudication
itself somehow qualifies as a “new circumstance” that, perversely, requires this Court to dismiss
the entire complaint as to Hertz. [See Hertz’s MPA at 4:25-26.] In an attempt to make the order
appear internally inconsistent, Hertz interprets ~ and misquotes — it to mean that Hertz never
occupied any product's “chain of distribution.” Then, contrary to section 1008 and Gilberd,
supra, Hertz claims that this Court misinterpreted the law by eliminating plaintiffs’ strict liability
claims while preserving plaintiffs’ (legally distinguishable) negligence, fraud, and conspiracy-to-

defraud liability claims. Hertz once again cites Taylor and O'Neil, as if this Court did not grasp
MSTEWART/1310275.1 4
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO HERTZ’S MOTION
FOR RECONSIDERATION OF THE ORDER ON HERTZ’S MSH/AKazan, McClain, Satterley & Greenwood

A Professional Law Corporation

Jack London Market * 55 Harrison Street, Suite 460

* Oakland, Califomia 94607

(S10) 302-1000 + Fas: (510) 835-4913 + wwnw.kazantaw.com,

So Se em NDA HW FB BN

-
Roo

their importance after the parties’ prior briefing.

In fact, this Court did not find Hertz to be outside any chain of distribution, nor
misinterpret the law governing negligence, fraud, and conspiracy to defraud. As the order states,
this Court determined only that public policy bars strict liability against Hertz under the facts of
this case. Plaintiffs of course disagree with that legal ruling, but they understand how it was
reached. This Court may have considered Hertz to be a type of seller of “used goods” that should
not be threatened by the easily proved tests of strict liability. [Hertz’s MSJ/A Brief, Exh. 1 to
Stewart Decl. at 10:21-23 (citing Tauber-Arons Auctioneers Co. v. Superior Court (1980) 101
Cal.App.3d 268, 274 (sellers of used goods generally are not strictly liable)).] Or, this Court may
have considered Koepke to be ineligible to invoke strict liability because his exposures to Hertz’s
cars occurred before Hertz sold those dangerous products to the public. [Plaintiffs’ MSJ/A Brief,
Exh. 2 to Stewart Decl. at 14:3-14 (citing Ne/son v. Superior Court (2006) 144 Cal.App.4th 689,

695 (a retail sale generally is not required for strict liability)).]

Because strict liability involves unique public-policy concerns, plaintiffs separately

analyzed that cause of action in response to Hertz’s motion for summary judgment/adjudication.
[Plaintiffs’ MSJ/A Brief, Exh. 2 to Stewart Decl. at 12:26-15:7.] They explained that even if strict
liability was inapplicable here, Hertz still owed a negligence duty of care that required it to act

reasonably toward Koepke. [Plaintiffs’ MSJ/A Brief, Exh. 2 to Stewart Decl. at 18:3-19:5 (citing

Civil Code section 1714, and Rowland v. Christian (1968) 69 Cal.2d 108, 113-114).] This Court
correctly ruled that Hertz failed to meet its initial burden in attacking the negligence cause of

action, [6/12/14 Order, Exh, B to Ranucci Decl. at 1:25-2:8.] Similarly, even without strict

liability, Hertz should not have committed the intentional torts of fraud and conspiracy-to-defraud.
[Plaintiffs’ MSJ/A Brief, Exh. 2 to Stewart Decl. at 10:11-11:10 (citing Stone v. Regents of
University of California (1999) 77 Cal.App.4th 736, 748, fa. 9).] Again, this Court correctly ruled

that Hertz failed to meet its initial burden in attacking the fraud and conspiracy-to-defraud causes

of action. [6/12/14 Order, Exh. B to Ranucci Decl. at 1:25-2:8.]
Thus, there are no “new circumstances” surrounding the order on summary

jadgment/adjudication that would justify its reconsideration. Because section 1008 states
MSTEWART/1316275.1 5

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO HERTZ’S MOTION
FOR RECONSIDERATION OF THE ORDER ON HERTZ’S MSI/AKazan, McClain, Satterley & Greenwood

A Professional Law Corporation
+ 55 Haztison Street, Suite 400 * Oakland, California 94607

Fax: (510) 835-4913 + www-kavanlaw.com

(510) 302-1000 +

Jack London Market

jurisdictional rules, this Court has no power to grant Hertz’s deficient motion.
IV. CONCLUSION
Hertz’s motion for reconsideration should be denied because there are no new facts, there
is no new law, and there are no new circumstances.
DATED: June CO 2014 KAZAN, McCLAIN, SATTERLEY & GREENWOOD
A Professional Law OS
a
Michael T. Stewart
Attorneys for Plaintiffs
MSTEWARTA316275.1 6

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO HERTZ’S MOTION

FOR RECONSIDERATION OF THE ORDER ON HERTZ'S MSJ/A