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

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                                LEWIS
BRISBOIS

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LEWIS BRISBOIS BISGAARD & SMITH LLP

JAMES D. FRASER, SB# 65840 ELECTRONICALLY
E-Mail: Jim. Fraser@ilewisbrisbois.com

PATRICK J. FOLEY, SB# 180391 FILED
E-Mail: Patrick. Foley@lewisbrisbois.com Superior Court of Calfomia,

DAVID J. KESTENBAUM, SB# 253749 ounty of San Francisco
E-Mail: David. Kestenbaum@lewisbrisbeis.com JUN 13 2014

333 Bush Street, Suite 1100 Clerk of the Court

San Francisco, California 94104 BY: ALISON AGBAY

Telephone: 415.362.2580 Deputy Clerk

Facsimile: 415.434.0882

Attorneys for Defendant AMERICAN HONDA
MOTOR CO., INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

HAROLD KOBPKE and NANCY KARIDIS- | CASE NO, CGC-13-276217

KOEPKE,
| DEFENDANT AMERICAN HONDA
Plaintiffs, MOTOR CO., INC,S SUPPLEMENTAL
REPLY TO PLAINTIFFS’
vs. SUPPLEMENTAL OPPOSITION TO
MOTION FOR SUMMARY
FORD MOTOR COMPANY, et al. ADJUDICATION

Defendants. Judge: Hon. Teri L. Jackson
Date: Sune 17, 2014

Time: 9:30 a.m,

Dept: 503

Action Filed: December 3, 2013
Trial Date: June 16. 2014

IL INTRODUCTION

Plaintiffs Harold Koepke and Nancy Karidis-Koepke’s (collectively “Plaintiffs”)
Supplemental Opposition to American Honda Motor Co., Inc.’s ((AHM”) Motion for Summary
Adjudication is completely devoid of any specific facts, documents, or evidence that could support
a finding for punitive damages against AHM. Plaintiffs failed to provide any facts to demonstrate
clear and convincing evidence of malicious, oppressive, or fraudulent conduct by AHM or

ratification of such conduct by officers of AHM. Therefore, there is no triable issue of fact as to
4846-4703-0299.1

DEFENDANT AMERICAN HONDA MOTOR CO., INC.°S SUPPLEMENTAL REPLY TO PLAINTIFFS’
SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATIONLEWIS
BRISBOIS
BISGAARD
& SMITH LP

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Plaintiffs’ claims for punitive damages and AHM is entitled to summary adjudication as a matter
of law.

As such, AHM’s Motion should be granted.

Ti. LEGAL ARGUMENT

Plaintiffs’ Supplemental Opposition was confined only to evidence obtained from the May
30, 2014 and June 11, 2014 deposition of AHM’s corporate witness Neil Schmidt. Plaintiffs were
not allowed to cite any additional case law or evidence, (See this Court’s Order dated June 4,
2014 attached to the Kestenbaum Declaration as Exhibit B.) However, Plaintiffs attempt to again
rely on the case of Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270 to provide support for
their position. As noted in AHM’s Reply, in Pfeifer, plaintiffs presented evidence that defendant
John Crane, Inc, knew of the hazards of asbestos in the 1970s and took action to protect its own
employees. (Pfeifer, supra, at 1300.) The evidence in Pfeifer also indicated that John Crane, Inc.
knew its products were likely to pose a danger to users of its products. (/d.) This is not the case
with AHM. Plaintiffs have no evidence that AHM’s distribution of chrysotile-containing
automotive parts increased Mr. Koepke’s risk of disease and Plaintiffs have no evidence that
AHIM was even aware of any perceived dangerous consequences of its conduct.

In fact, the testimony cited of Mr. Schmidt shows just the opposite, that AHM kept abreast
of any potential hazards by reading numerous epidemiological studies, workplace air surveys,
brake wear debris studies, all of which indicate that mechanics have no increased risk of
contracting an asbestos-related disease. (See AHM’s Reply to Plaintiffs’ Supplemental Separate
Statement of Facts at Nos. 108, 116, 111, 112, 117, 132, 133, 134, 135, 137, 142, 143, 147.) As
such, AHM was aitempting to ascertain and analyze all available information and determined, as
the science at the time did, that there was no increased tisk associated with the use of asbestos-
containing automotive parts. There can be no punitive damages for such a belief when based in
fact and testified to by a corporate representative.

In addition, Plaintiffs improperly attempt to include in their Supplemental Opposition,
testimony of Lawrence Krasnow who was deposed as a percipient witness in this case on February

24, 2014, in direct contravention of this Court’s June 4, 2014 Order providing for a continuance.
4846-4703-0299.1

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DEFENDANT AMERICAN HONDA MOTOR CO., INC.’S SUPPLEMENTAL REPLY TO PLAINTIFFS’
SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATIONLEWIS
BRISBOIS

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Regardless, such testimony is irrelevant as Mr. Krasnow was never an officer, agent, or corporate
representative for AM and was not deposed in any capacity as a representative of AHM.
Moreover, his testimony is hearsay, lacks appropriate foundation, and has no bearing on the
potential for punitive damages in this case as against AHM.

Finally, none of Plaintiffs’ Supplemental Facts provide clear and convincing evidence that
AHM acted with the requisite malice, oppression, or fraud to be found liable for punitive damages.
As such, Plaintiffs are in the same position as with their initial Opposition and AHM has sustained
its burden by showing Plaintiffs do not now have and, despite the allowance of additional time by
this Court, cannot reasonably obtain evidence to support their prayer for punitive damages in this
case.
IW. CONCLUSION

Plaintiffs’ Opposition does not provide any evidence that AHM knew of the alleged
hazards of asbestos in automotive component parts and consciously disregarded those alleged
hazards. In fact, Plaintiffs’ Opposition and their Supplemental Opposition show just the opposite.
As such, AHM respectfully requests that the Court grant summary adjudication in its favor and

award costs as the prevailing party.

DATED: June 13, 2014 LEWIS BRISBOIS BISGAARD & SMITH LLP

By: Qa he

James D. Fraser

Patrick J. Foley

David J. Kestenbaum

Attomeys for Defendant AMERICAN HONDA
MOTOR CO., INC.

4846-4703-0299. 1

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DEFENDANT AMERICAN HONDA MOTOR CO., INC.’S SUPPLEMENTAL REPLY TO PLAINTIFFS’
SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATIONLEWIS
BRISBOIS
BISGAARD
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CALIFORNIA STATE COURT PROOF OF SERVICE

Harold Koepke v. Ford Motor Company, et al.
San Francisco Superior Court Case No. CGC-13-276217

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

At the time of service, | was over 18 years of age and not a party to the action. My
business address is 333 Bush Street, Suite 1100, San Francisco, CA 94104-2872.

On June 13, 2014, I served the following document(s): DEFENDANT AMERICAN
HONDA MOTOR CO., INC.’S SUPPLEMENTAL REPLY TO PLAINTIFFS’
SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

I served the documents on the following persons at the following addresses (including fax
numbers and e-mail addresses, if applicable):

ALL PARTIES APPEARING ON THE FILE & SERVEXPRESS ELECTRONIC
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The documents were served by the following means:

& (BY ELECTRONIC SERVICE VIA FILE & SERVEXPRESS) Based on a court order, 1
caused the above-entitled document(s) to be served through File & ServeXpress at
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service list for the above-entitled case. The service transmission was reported as complete
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deposited, or maintained with the original document(s) in this office.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed on June 13, 2014, at San Francisco, California.

4846-4703-0299.1

DEFENDANT AMERICAN HONDA MOTOR CO., INC.’S SUPPLEMENTAL REPLY TO PLAINTIFFS’
SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATIONPage 1 of 2

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ie aParty Party Type Party Status Attorney Firm, Method
| a Pietrykowski, Gordon & Rees- a
ABC Mobile Systems Defendant Active Michael J San Francisco E-Service
Brydon Hugo &
[¥| American Honda Motor Co Inc Defendant Active Tugade, Edward Parker-San E-Service
Francisco
Lewis Brisbois
[* American Honda Motor Co Inc Defendant Active Foiey, Patrick J Bisgaard & Smith E-Service
LLP-Los Angeles
{* Bell Industries Inc Defendant Active Park, Ann Pond North LLP E-Service
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IM BorgWarner Morse TEC Incw Defendant Active Gilespie, Jeffrey pumnem Brown~  e.Gervice
. . Strunk, Gordon & Rees- a .
J¥ Charter Oak Fire Insurance Co Intervenor Active Christopher San Francisco E-Service
j Barnette, Archer Norris- os
[  ChemRisk Inc N/A Active Matthew D Walnut Creek E-Service
= + i Counsel, Berry & Berry- _
[¥ Designated Defense Counsel Defendant Active Asbestos B&B Oakland E-Service
we is Archer Norris- a .
Iv Exponent Inc Objector Active Ficenec, James. Walnut Creek E-Service
Lankford Crawford
[Ford Motor Co Defendant Active Ostertag, James Moreno & Ostertag £-Service
LLP
4 Shepardson, Nixon Peabody LLP . a
{¥ Ford Motor Co Defendant Active Scott S ~ Main Account E-Service
ese Nixon Peabody LLP =
[Vv Ford Motor Co Defendant Active Petty, Ross - Main Account E-Service
— Foreland Parts Inc Defendant Active Pond, Frank D = Pond North LLP E-Service
—* — Genuine Parts Co Inc Defendant Active Pond, Frank D ~~ Pond North LLP E-Service
Hertz Corp Defendant Active Ranucci, John W Comber Loper & Service
. . LAMPASONA, Lombardi Loper&
{Hertz Corp Defendant Active MARIA Conant E-Service
Kazan McClain
}  Karidis-Koepke, Nancy Plaintiff Active Bosch, Carole Satterley & E-Service
Greenwood

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}¥ _ Karidis-Koepke, Nancy Plaintiff Active: Harris, Ryan Satterley & £-Service
Greenwood
Kazan McClain
[7 Karidis-Koepke, Nancy Plaintiff Active wee Satterley & E-Service
Greenwood
McKenna Long &
}¥ Kelsey Hayes Co Defendant Active Oberg, Lisa Aldridge LLP-San —_ E-Service
Francisco
Kazan McClain
(Koepke, Harold Plaintiff Active Bosch, Carole Satterley & E-Service
Greenwood
Kazan McClain
Koepke, Harold Plaintiff Active Harris, Ryan Satterley & E-Service
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Kazan McClain
M Koepke, Harotd Plaintiff Active fatterley. Satterley & E-Service
josep Greenwood
_ Keesal Young &
iw Lear Siegler Diversified Holdings Corp Defendant Active Cox, John C Logan-San E-Service
Francisco
= . , 4 . Kendrick, Keesal Young & . “
iw Lear Siegler Diversified Holdings Corp Defendant Active Elizabeth A Logan-Long Beach E-Service
{¥ Metropolitan Life Insurance Co Defendant Active Petrovsky, Lisa Steptoe & Johnson E-Service
LLP-Los Angetes
}¥ — Nationat Automotive Parts Association Defendant Active Pond, Frank B = Pond North LLP E-Service
. Nixon Peabody LLP ;
Shell O11 Co Defendant Active Petty, Ross ~ Main Account E-Service
[i Shell Oil Co Defendant Active Brian, Aaron M pen peabody E-Service
. Kaplan, S Gordon & Rees- .
Thyssenkrupp Budd Co Defendant Active Mitchell San Francisco E-Service
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