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

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                                Kazan, McClain, Satterley & Greenwood

A Professional Law Corporation

35 Hans

* www.kavanlaw.com

mn Street, Suite 400 + Oakland, California 94607

(610) 362-1000

Jack London Market +

oO mW IH

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, McCLAIN, 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 03 2014

Clerk of the Court
BY: ALISON AGBAY
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

HAROLD KOEPRE and NANCY KARIDIS-
KOEPKE,

Plaintiffs,
ve
FORD MOTOR COMPANY, et al,

Defendants.

1313227.1

Case No. CGC-13-276217

PLAINTIFFS’ SUPPLEMENTAL
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
DEFENDANT KELSEY-HAYES
COMPANY’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY
ADJUDICATION

Date: June 12,2014

Time: 9:30 a.m.

Dept.: 503 (Hon. Teri L. Jackson)
Case Filed: December 3, 2013

Trial Date: June 16, 2014

DEFENDANT KELSEY-HAYES COMPANY’S MSJ/AKazan, McClain, Satterley & Greenwood

A Professional Law Corporation

55 Mar

(1G 302-1000 +

e400 + Oakland, California 94607
+ www. kazankow.com

Jack London Market *

0) 835-4913

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TABLE OF CONTENTS

INTRODUCTION wu. csci ccs rceeeceeteescseeeteesessenesesnecassensnersscscsssansntansanseeseenneceesceneane

LEGAL ARGUMENT

A. The 2012 Taylor PMK. deposition and its attached brake-part summary are

admissible — and alone defeat summary judgment... cesses

1, The deposition is admissible under Evidence Code section 1291... ee

2. The brake- part summary is is admissible under er multiple hearsay
exceptions. .. . sree

B. Ford’s recent testimony confirms the supply of asbestos-containing brake

assemblies from Kelsey-Hayes, through Ford, to Koepke’s shops... cere

Cc. Because K-H, Ford, and Bendix/Honeywell still resist discovery, the motion
should be continued again — or now denied outright. .

1313227.1

CONCLUSION ou. ccccccseeeesscceseessecsseenecenearscseessscsenssecsnsasseneesnesssreseesaeeneessissecsaessnecesecanenanes

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANT KELSEY-HAYES COMPANY’S MSJ/AKazan, McClain, Satterley & Greenwood

A Professional Law Corporation

> www. kazanlaw.com

TABLE OF AUTHORITIES

Page
CASES
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STATUTES
Code of Civil Procedure section 1989... 2
Code of Civil Procedure section 437¢(b) .isccsesssesssesesseersseaessensseesvsseneeseeeensanesseressenaneareaeneane 5
Evidence Code section 1230 ...cececcccceceseeesseccseeesuereecressevenersersasssusseersaversansessersaeeagaesevisieansareesseey 3,4
Evidence Code section 1271 o.cc.ccccccccccccssecseccccnestensecceeneeessesesenenssssesenessesensscneseseaenessesgenseenesesese 2,4

Evidence Code section 1291 ....cccsscsesssessessessessneessssesssesenssseesseesecssestessresrssncsaneesvsersssessserssectsnsse 2
Evidence Code section 1331... cesesseccssssesesessssesssreneerssessseeneacsversavaueacseseeassvsanarssersatensneseersasangireeaee 3,4

Evidence Code section 240 .o.cccceccccsecsccessecessessnssesesseesessssuesesucsisasssutenauuesessteneeutsacsesaeneteneareensae 2

4313227.1

DEFENDANT KELSEY-HAYES COMPANY'S MSJ/AKazan, McClain, Satterley & Greenwood

A Professional Law Corporation
Jack London Market + 55 Marrison Street, Suite 400 + Oakland, California 94607

(510) 302-1000 + Fax: (510) 835-4913 * www.kazanlaw.com

L INTRODUCTION

This Court continued the hearing on defendant Kelsey-Hayes Company’s (“K-H’) motion
for summary judgment to allow plaintiffs to present supplemental evidence raising a triable issue
of fact on plaintiff Harold Koepke’s exposure at his service stations to K-H brakes. This
supplemental opposition addresses three topics:

i. The evidence already submitted in opposition defeats K-H’s motion. The 2012

deposition of Ford’s then-PMK, Mark Taylor, attaching (as Exh. 23) a Ford summary of its brake-
part suppliers including K-H, shows unequivocally that K-H supplied brakes to numerous Ford
cars that were serviced in Mr. Koepke’s shops. K-H’s objections to the Taylor deposition and its
Exh. 23, expressed at the last hearing, are without merit: (1) the deposition is admissible as former
testimony (Taylor is unavailable and K~H attended the deposition with its current interest in cross-
examination); and (2) the attached brake-part summary (Exh. 23) is admissible under multiple
hearsay exceptions,
2. At his May 21 deposition (attended by K-H), Ford’s current PMK Matthew Fyie
solidified the evidence connecting K-H to numerous Ford cars: (1) Fyie authenticated another

edition of Ford’s brake-part summary showing, inter alia, that from 1983 to 1990, all Ford

Tempo/Topaz models had K-H front disc brakes, and all Lincoln Mark models had K-H rear disc
brakes — and Koepke and his co-workers attest that Koepke was exposed to those Ford models
during those years; and (2) Fyie authenticated a 1978 Ford memorandum, prepared in response to
a Federal Trade Commission inquiry, which shows inter alia that, from 1975 through 1977, K-H
supplied 100 percent of Ford’s rear dise brakes, and at least 65 percent of Ford’s front disc brakes.
These authenticated documents are both admissible under numerous hearsay exceptions, including
as Ford business records.

3. Although once continued, under section 437c(h), this motion should be still
continued — or now just denied outright — because defendants K-H, Ford, and Bendix/Honeywell
continue to resist discovery. Motions to compel are pending and may produce yet further evidence

showing the K-H connection to Fords and other vehicles to which Koepke was exposed.

1313227] 1

DEFENDANT KELSEY-HAYES COMPANY’S MSI/AKazan, McClain, Satterley & Greenwood

al Law Comporation

6 400 + Oakland, California 94607

302-1000 + ik

As discussed at length at the May 28 hearing, because Koepke personally swept his shop
every day for many years, a jury could reasonably find that he was exposed to the dust from every
brake that was serviced in his shops. This Court noted at the first hearing that K-H does not
dispute this fact. [5/28/14 Trans., Exh. 17 to Supp. Stewart Decl. at 33:2-13.] The evidence
adduced in opposition, including this supplement, allows a jury (at a minimum) to find that some
of those brakes more likely than not were K-H brakes.

i LEGAL ARGUMENT

A. The 2012 Taylor PMK deposition and its attached brake-part summary are
admissible — and alone defeat summary judgment.

1. The deposition is admissible under Evidence Code section 1291.

At the hearing, K-H pressed a hearsay objection to the 2012 Taylor PMK deposition. [K-
H’s Written Objections; 5/28/14 Hg. Trans., Exh. 17 to Stewart Decl. at 39:9-41:15, 43:4-45:2.]

K-H is wrong — the deposition is admissible under Evidence Code section 1291 as “former
testimony.” Taylor is “unavailable as a witness” because he lives in Michigan, beyond the
subpoena power of this Court. [7/12/12 Taylor Depo., Exh. 8 to Orig. Stewart Decl. at 12:7-14,
13:12-19; 5/23/11 Taylor Depo., Exh. 20 to Supp. Stewart Decl, at 7:1-5, 9:22-11:20, 12:22-13:5;
see Evid. Code § 240(a)(4) (unavailable if beyond reach of court’s subpoena power); Code Civ.
Proc. § 1989 (subpoena power ends at California border).] And, under subdivision (a)(2) of
section 1291, K-H was a “party” to the Taylor deposition (represented by McKenna Long, as
here), and had then the same “right and opportunity to cross-examine” Taylor that K-H would
have in this case ~ to undermine his testimony regarding Ford’s use of K-H’s brake assemblies.
[7/12/12 Taylor Depo., Exh. 8 to Orig. Stewart Decl. at 6:19-24]

2. The brake-part summary is admissible under multiple hearsay
exceptions.

At the hearing, K-H objected that the brake-part summary (Exh. 23 to 2012 Taylor depo.)
was itself inadmissible as “hearsay.” Not so — three hearsay exceptions apply:

1. Business Record: The summary is a Ford business record (Evid. Code § 1271)
because it was created in the early 1980s, when Ford still used asbestos-containing brakes, based
on Ford’s interviews of its personnel. [7/12/12 Taylor Depo., Exh. 8 to Orig. Stewart Decl. at

13132271 2

DEFENDANT KELSEY-HAYES COMPANY’S MSJ/AKazan, McClain, Satterley & Greenwood.

A Professional Law Cosporation

* 55 Har:

+ Oakland, California 94607

+ ww. kazanlaw.com

on Street, Suite 400

Jack London Market

+ Bax: (510) 835-4913

{S10} 302-1000

150:20-154:3, and Exh. 23 thereto.] Taylor confirmed the document’s reliability, [/d.]

2. Declaration Against Interest: The summary is a Ford declaration against interest
(Evid. Code § 1230) because it was prepared by unavailable Ford agents and shows Ford’s use of
dangerous asbestos-containing brake parts from sources including K-H -- facts that, unless true,
Ford would not have admitted (in light of its awareness of asbestos litigation). As Taylor
explains, the document was “created for litigation by counsel of Ford.” [7/12/12 Taylor Depo.,
Exh, 8 to Orig. Stewart Decl. at 152:5-9.]

3. Ancient Writing: The summary is also an ancient writing (Evid. Code § 1331),
written in 1982 and still relied on by Ford as a true summary of its brake product suppliers.

The existing evidence of the Taylor deposition and its attached brake-part summary alone

suffice to defeat summary judgment.

B. Ford’s recent testimony confirms the supply of asbestos-containing brake
assemblies from Kelsey-Hayes, through Ford, to Koepke’s shops.

On May 21, as plaintiffs filed their opposition, Ford PMK Fyie resumed his deposition.
[Facts 342-343.] Fyie still had not investigated what brake products K-H supplied to Ford. [Jd]
Two documents from that deposition (Exhs. 66 and 67) show further the Ford/K-H connection:

1 Exh. 66 is another edition of Ford’s brake-part summary [Facts 344-348] — again
admissible as a business record, declaration against interest, and ancient writing. This summary
again provides a general outline of Ford’s brake product suppliers for all of North America. [/d.]

From 1961 to 1982, K-H supplied to Ford front and rear disc brakes on cars, and front and
rear drum brakes on cars and light tracks. More specifically: (1) 1983-1990: Tempo/Topaz had
only K-H front dise brakes; (2) 1983-1993: Mustang had front dise brakes from K-H and ITT
Teves; (3) 1983-1990: Lincoln Mark had only K-H rear disc brakes. [Facts 349-353.] As shown

in the original opposition, Koepke in these years was exposed to all of these models. [See Facts
123, 170-177, 184, 205.]

2. Exh. 67 is a 1978 Ford interoffice memo regarding a Federal Trade Commission
request for Ford’s brake-source information. [Facts 354-358.] This document, prepared by Ford

pursuant to a federal government request, is unquestionably a Ford business record (made in the

1313227.1 3

DEFENDANT KELSEY-HAYES COMPANY’S MSJ/AKazan, McClain, Satterley & Greenwood

A Professional Law Corporation
+ 55 Harzison Smrcet, Suite 400 + Oakland, California 94607

* Fax: (510) 835-4913 + wwwkazaniaw.com

(510) 302-1000

Jack London Market

regular course of Ford’s business; at or near the time of the FTC investigation; Fyie identified it
and its mode of preparation; and its origins support its trustworthiness) ~ as well as a declaration
against interest and ancient writing. [Evid. Code §§ 1230, 1271, 1331.] The memorandum
attaches numerous charts showing where Ford obtained its brake assemblies and friction linings —
complete brake-source data (except only front brakes on 1972-1974 cars) compiled from purchase
records and supplier data. [/d.] This data shows, inter alia:

. 1976-1977: K-H supplied about 65 to 68% of Ford’s front disc brakes and 100% of
rear disc brakes. [Facts 359-365.]

. 1975: K-H supplied G67, 66% of front disc brakes, 100% of rear disc brakes, and 100%
of front drum brakes. [/d. 1

. 1972 to 1974: K-H supplied about 69% of Ford’s front drum brakes on cars. [Facts
366-371.)

K-H, present at this May 21 deposition, cross-examined Fyie on these facts. Fyie
explained that the brake-part summary (Exh. 66) provides only general information, but the FTC
memo (Exh. 67) provides percentage data for each product and supplier. [Facts 372-373.]

Fyie also confirmed the authenticity of the FTC memo, which was prepared in 1978 (as it
states) and contains accurate information (prepared in response to FTC request). [Fact 374.]

c. Because K-H, Ford, and Bendix/Honeywell still resist discovery, the motion
should be continued again ~ or now denied outright.

Under section 437c(h), K-H’s motion should at a minimum be continued again because
K-H, Ford, and Bendix/Honeywell continue to resist discovery of the evidence connecting their
various products. Indeed, at this late date, with trial imminent, the motion should simply be
denied.

Plaintiffs’ motion to compel Ford’s further compliance with plaintiffs’ deposition notice to
Ford’s PMQ/COR will be heard on June 10 ~ two days before the continued hearing on this MSJ.
{Fact 375.] In response to discovery, Ford has produced a DVD with tens of thousands of
unorganized pages, each in an individual file, without any indication which documents are
responsive to plaintiffs’ discovery requests. [/d.] Moreover, Ford may possess additional

evidence of its use of K-H asbestos-containing brake assemblies, but Ford has not properly

13132271 4

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORIT!
DEFENDANT KELSEY-HAYES COMPANY’S MSJ/A

IN OPPOSITION TOwn

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et, Suite 400 + Oakland, California 94607

A Professional Law Corporation

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Kazan, McClain, Satterley & Greenwood

Jack Londen Market

investigated that issue. [/d.]

Plaintiffs’ motion to compel K-H’s further compliance with plaintiffs’ deposition notice to
K-H’s PMQ/COR will also be heard on June 10. [Fact 376.] K-H has still not adequately
searched for responsive documents or information . [Jd] K-H may possess additional evidence of
its brake supply to Ford and its historical knowledge of asbestos hazards, but K-H has not properly
investigated those issues. [/d.]

Additionally, plaintiffs are still conferring with defendant Bendix/Honeywell regarding the
continued deposition of its corporate representative. [Fact 377.] As plaintiffs previously
explained, Bendix’s witness Joel Cohen admitted that Bendix has not examined its records that
show its sales of asbestos-containing brake friction linings to K-H. [/d., see Facts 335-340.]

The updated factual record further demonstrates that K-H’s motion should be denied on
the merits. [Fact 378.] However, in light of the pending discovery against Ford, K-H, and.
Bendix/Honeywell, additional facts that justify opposition may exist but cannot be presented yet.
{Ud} Again, the motion should be continued or denied outright because of defendants’ delay in
meeting their discovery obligations. [/d.; Code Civ. Proc. § 437c(h); Bahl v. Bank of America
(2001) 89 Cal. App.4th 389, 395.]
ik CONCLUSION

K-H has failed to meet its initial burden on MSJ, and plaintiffs’ evidence, including with
this supplement, raises triable issues of fact. Moreover, due to defendants’ continued refusal to
respond adequately to discovery, this Court should continue the motion or deny it outright.

DATED: June 3 2014. KAZAN, McCLAIN, SATTERLEY & GREENWOOD

A ne
wi IED?

Michael T. Stewart

Attorneys for Plaintiffs

T313227.1 5

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEPENDANT KELSEY-HAYES COMPANY’S MSJ/A