Preview
FRANK D. POND (Bar No. 126191)
RICHARD S, CHON (Bar No. 197541) ELECTRONICALLY
tchon@pondnorth.com FILED
KELLEY T. MAHONEY (Bar No. 283296) Superior Court of California,
kmahoney@pondnorth.com County of San Francisco
POND NORTH LLP
350 South Grand Avenue, Suite 3300 MAY 4 2014
Los Angeles, CA: 90071 BY: ROMY RISK
Telephone: (213) 617-6170 Deputy Clerk
Facsimile: (213) 623-3594
Attorneys for Defendant
FORELAND PARTS, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
HAROLD KOEPKE and
NANCY KARIDIS-KOEPKE, Case No: CGC-13-276217
Plaintiffs, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF DEFENDANT
vs. FORELAND PARTS, INC.’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE
FORD MOTOR COMPANY; et al., ALTERNATIVE, SUMMARY ADJUDICATION
OF ISSUES
Defendants.
Judge: Hon. Teri L. Jackson
Department: 503 _
Date: June 11, 2014
Time: 9:30 A.M.
Case Filed: | December 3, 0213
Trial Date: = June 16, 2014
L INTRODUCTION
Plaintiffs’ claims against Foreland Parts, Inc. (“Foreland”) fail because even after numerous
witnesses have been deposed, Plaintiffs still have absolutely no admissible evidence to support their
claims. Plaintiffs allege that Mr. Koepke was exposed to asbestos from products for which Foreland
is liable when he purchased automotive brakes and clutches from Burlingame Auto Supply
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADSUDICATION OF ISSUES
4561-007 1 :4822-0669-3659.v1(Foreland’s former d/b/a), which he identified as a NAPA retail store or “jobber,” for use at his
automotive repair shop, Harold’s Automotive, from 1986 through 2001. Plaintiffs Harold Koepke
and James Nash, his head mechanic at Harold’s Automotive, are the only product identification
witnesses identified against Foreland who have been able to identify particular products Burlingame
Auto Supply allegedly sold to Harold’s Automotive.
James Nash testified that Burlingame Auto Supply sold so-called “NAPA-brand” brakes to
Harold’s Automotive at some point between 1990 and 2000. During that time period, however,
Genuine Parts Company distributed both non-asbestos and asbestos-containing brakes. Because
Plaintiffs have been unable to produce any evidence to establish the “NAPA-brand” brakes supplied
by Burlingame Auto Supply to Harold’s Automotive contained asbestos, Plaintiffs, in turn, cannot
establish that Mr, Koepke was exposed to asbestos from these “NAPA-brand” brakes.
Therefore, the only remaining products at issue in this case include the Bendix-brand, EIS-
brand, and Rebox-brand brakes and BorgWarner-brand clutches Mr. Koepke testified could have
been purchased from Burlingame Auto Supply. Mr. Koepke, however, could not expressly tie any
one product specially to any one store. For instance, Mr. Koepke testified that Harold’s Automotive
purchased Bendix-brand brakes, E1S-brand brakes, and BorgWarner-brand clutches from any one of
various automotive supply houses in the San Mateo area, including Federal Auto Parts, Don L.
Morris, and Burlingame Auto Supply. Further, Mr. Koepke testified that Harold’s Automotive may
have purchased Rebox-brand brakes from Burlingame Auto Supply, although he never personally
purchased them from Burlingame Auto Supply. Because Mr. Koepke has no personal knowledge
that any of these particular products were purchased from Burlingame Auto Supply, and because
Plaintiffs have not produced any additional evidence to link these products to Burlingame Auto
Supply, Plaintiffs have not and cannot show that Burlingame Auto Supply sold or supplied said
products to Harold’s Automotive. Therefore, because Plaintiffs cannot establish that Mr. Koepke
was exposed to any asbestos-containing product sold or supplied by Burlingame Auto Supply,
Foreland is entitled to summary judgment.
In the alternative, if the Court is not willing to grant summary judgment, Foreland seeks
summary adjudication as to Plaintiffs’ second cause of action for breach of implied warranty, third
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4561-0071:4822-0669-3659.v1om IN DH BR WH
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cause of action for fraud/failure to warn, fifth cause of action for conspiracy to defraud/failure to
warn, and as to their claim for punitive damages.
U. STATEMENT OF FACTS
A. Plaintiffs’ Complaint and Theories of Liability Against Foreland
Plaintiffs’ First Amended Complaint alleges several causes of action against Foreland,
including 1). negligence; 2). breach of implied warranty; 3). strict product liability; 4).
fraud/failure to warn; 5). conspiracy to defraud/failure to warn; 6). loss of consortium; and a prayer
for punitive damages.!
B. Plaintiffs’ Factual Allegations Against Foreland
Plaintiffs contend that Mr. Koepke was exposed to asbestos from products for which
Foreland is liable when he purchased automotive brakes and clutches from NAPA “jobber,”
Burlingame Auto Supply, for use at his automotive repair shop, Harold’s Automotive. Specifically,
Plaintiffs claim Burlingame Auto Supply supplied brakes and clutches to Harold's Automotive from
1986 through 2001.? The only product identification witnesses identified against Foreland are
Plaintiff Harold Koepke and the following three mechanics who worked for Mr. Koepke at Harold’s
Automotive: James Nash (“Mr. Nash”), Lawrence Krasnow (“Mr. Krasnow”), and Craig Clifton
(“Mr. Clifton”).4
1. Deposition Testimony of Plaintiff Harold Koepke
Mr. Koepke testified he used Burlingame Auto Supply as a supplier to Harold’s Automotive
from 1986 through 2001.> Mr. Koepke testified that Harold’s Automotive purchased Bendix-brand
brakes, EIS-brand brakes, and Borg Warner-brand clutches from any one of various automotive
supply houses in the San Mateo area, including Federal Auto Parts, Don L. Morris, and Burlingame
Separate Statement of Undisputed Material Facts (“SSUMF”) No. 1.
> SSUME No. 2.
3 SSUMF No. 4.
4 SSUME No. 2.
3 SSUMF No. 8.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
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Auto Supply.® Mr. Koepke, however, could not expressly tie any one product specially to any one
store. Further, Mr. Koepke testified that Harold’s Automotive may have purchased Rebox-brand
brakes from Burlingame Auto Supply.’
Mr. Koepke admitted that he only personally visited Burlingame Auto Supply on one single
occasion over the fifteen year period he used it as a supplier.®
Mr. Koepke conceded he could not identify.a specific instance in which he was in the
presence of someone removing or installing a brake or clutch he believed to be supplied by
Burlingame Auto Supply, or a specific instance in which he ever handled a brake he believed to be
supplied by Burlingame Auto Supply?
Finally, although Burlingame Auto Supply was a NAPA “jobber” from 1986 through 2001,
NAPA did not license it trademark or logo for use on Bendix, EIS, or Rebox-brand brakes or
BorgWarner-brand clutches.'° Additionally, NAPA did not license its trademark or logo for use on
the packaging of such products."’ Therefore, the NAPA logo or trademark would never appear on
Bendix, EIS, or Rebox-brand brakes or BorgWamer-brand clutches. Similarly, the NAPA logo or
trademark would not appear on the packaging of said products.
2. Deposition Testimony of James Nash
James Nash worked as Mr. Koepke’s head mechanic at Harold’s Automotive from 1980 to
2001. Mr. Nash testified Burlingame Auto Supply supplied so-called “NAPA-brand” brakes to
Harold’s Automotive at some point during the 1990 through 2000 time frame.'? Mr. Nash could not
identify a specific car by make model or year in which he or any other mechanic from Haroid’s
® SSUME Nos. 5, 6, and 7.
7 SSUME No. 8.
8 SSUME No. 9.
° SSUMF Nos. 10, 11, and 12.
10 SSUME Nos. 22, 23, 24, and 25.
4 SSUMF Nos. 22, 23, 24, and 25.
"2. SSUME No. 13.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4561-0071:4822-0669-3659.v1Co ew YW DH HR B® WH NH
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Automotive removed or installed “NAPA-brand” brakes from Burlingame Auto Supply.” Similarly,
Mr. Nash could not identify a specific instance in which Mr. Koepke worked with a “NAPA-brand”
brake product supplied to Harold’s Automotive by Burlingame Auto Supply.’
By the year 1983, some of the drum brakes and some of the disc brakes distributed by
Genuine Parts Company were asbestos-free.!*
3. Deposition Testimony of Lawrence Krasnow
Lawrence Krasnow worked as a mechanic for Mr. Koepke at Harold’s Automotive from
1980 to 1992. Mr, Krasnow identified various local automotive supply houses and dealerships as
suppliers to Harold’s Automotive, including Burlingame Auto Supply.!© Mr. Krasnow, however,
never personally purchased parts from Burlingame Auto Supply for use at Harold’s Automotive.!”
Further, Mr. Krasnow had no knowledge of any particular automotive products Harold’s Automotive
may have purchased from Burlingame Auto Supply.'®
4. Deposition Testimony of Craig Clifton
Craig Clifton worked as a mechanic at Harold’s Automotive from August of 1980 to carly
1983. Although Mr. Clifton identified various local automotive supply houses and dealerships as
suppliers to Harold’s Automotive, he never identified Burlingame Auto Supply as a supplier.?
5. Plaintiffs’ Written Responses To Foreland’s Comprehensive “State-All-
Facts” Discovery
Foreland propounded comprehensive “state-all-facts” written discovery on Plaintiffs,
including Special Interrogatories and Requests for Production of Documents and Tangible Items
13 SSUME No. 14.
4 SSUME No. 15.
'5 SSUMF Nos. 20 and 21.
16 SSUME No. 16.
'7 SSUME No 17.
18 SSUMF No. 18.
'? SSUMF No. 19.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4561-0071 :4822-0669-3659.v1CO em YD DH HW BF YW NY mm
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(“Special Discovery”). Through this comprehensive written discovery, Foreland asked Plaintiffs to
provide specific facts, witnesses, and documents to support their particular causes of action and
claims against Foreland.” In response to said Special Discovery, however, Plaintiffs do not provide
any facts or documents evidencing Mr. Koepke’s alleged exposure to a product for which Foreland
would be liable, beyond what the product identification witnesses have testified to in deposition.””
Additionally, Plaintiffs do not provide any specific facts or documents to support their particular
causes of action for breach of implied warranty, fraud/failure to warn, conspiracy to defraud/failure
to warn, or their claims for punitive damages.”
For instance, when asked to state al! facts to support his cause of action for fraud/failure to
warn, Mr. Koepke generally alleges “Defendant knew or should have known from scientific and
medical literature no later than the 1930s that exposure to asbestos was harmful and caused disease,
yet failed to warn its customers and the users of its asbestos-containing products of the known
hazard.”* ~When asked to produce all documents and tangible items to support his cause of breach
of implied warranty asserted against Foreland, Mr. Koepke, again, fails to provide a single document
to support this specific cause of action against Foreland and, instead, refers Foreland to various
documents already produced in this litigation, including Mr. Koepke’s Amended Responses to San.
Francisco Superior Court Standard Interrogatories, medical records, social security records, in
addition to unspecified medical and scientific literature, unspecified trade, medical, scientific, and
legal journal and magazine Foreland allegedly subscribed 10.4
Additionally, when asked to state all facts to support his cause of action for conspiracy to
defraud/failure to warn, Mr. Koepke generally alleges “Defendant knew or should have known from
scientific and medical literature no later than the 1930s that exposure to asbestos was harmful and
2° SSUMEF Nos. 2, 3, 26, 27, 28, 29, 30, and 31.
21 SSUMF Nos. 2 and 3.
22 SSUME Nos. 26, 27, 28, 29, 30, and 31.
23 SSUME No. 26.
24 SSUME No. 27.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4561-0071 :4822-0669-3659.v1caused disease, yet failed to warn its customers and the users of its asbestos-containing products of
the known hazard... Defendant placed its asbestos-containing products in the stream of commerce,
and in concert with the manufacturers and distributors who rebranded and used its products,””°
When asked to produce all documents and tangible items to support his cause of breach of implied
warranty asserted against Foreland, Mr. Koepke yet again fails to provide a single document to
support this specific cause of action against Foreland and, instead, refers Foreland to various
documents already produced in this litigation, including Mr. Koepke’s Amended Responses to San
Francisco Superior Court Standard Interrogatories, medical records, social security records, in
addition to unspecified medical and scientific literature, unspecified trade, medical, scientific, and
legal journal and magazine Foreland allegedly subscribed to."*
Finally, when asked to state all facts supporting his claim for punitive damages, Mr. Koepke
does not identify any facts regarding Foreland’s specific conduct towards him and, instead, broadly
alleges that “Defendant knew or should have known from scientific and medical literature no later
than the 1930s that exposure to asbestos was harmful and caused disease, yet failed to warn its
customers and the users of its asbestos-containing products of the known hazard.”?7 Again, when
asked to produce all documents and tangible items to support his clatm for punitive damages, Mr.
Koepke did not identify a single document specific to Foreland’s conduct towards him and, instead,
refers Foreland to various documents already produced in this litigation, including Mr. Koepke’s
Amended Responses to San Francisco Superior Court Standard Interrogatories, medical records,
social security records, in addition to unspecified medical and scientific literature, unspecified trade,
medical, scientific, and legal journal and magazine FORELAND allegedly subscribed to.”®
B. Summary Judgment Standard
A party may move for summary judgment in any action where it contends that the action has
25 SSUME No. 28.
26 SSUMF No. 29.
27 SSUME No. 30.
28 SSUMF No. 31.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
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no merit? A court must grant summary judgment if the moving papers show that there is “no
triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of
law”? The moving party has met its burden if it shows that one or more of the elements of a cause
of action cannot be established.”! The moving party may shift its burden by showing that the
opposing party “does not possess, and cannot reasonably obtain, needed evidence.” A party
opposing a motion for summary judgment may not rely upon the allegations or denials of its
pleadings to shoulder its burden.** If the opposing party fails to meet its burden, the court must grant
summary judgment.*
In asbestos actions, the plaintiff bears the burden of proof to establish each clement of his or
her causes of action** The plaintiff, and not the defendant, has the burden of proving exposure toan
asbestos-containing product for which a particular defendant is responsible and to which a plaintiff
was exposed.°*
B. Foreland Is Entitled to Summary Judgment Because Plaintiffs Cannot Establish
That Mr. Koepke Was Exposed to Any Asbestos-Containing Product Sold or
Supplied By Burlingame Auto Supply
Although Plaintiffs named four product identification witnesses against Foreland, only Mr.
Koepke and Mr. Nash were able to identify particular products Burlingame Auto Supply allegedly
supplied to Harold’s Automotive*” Mr. Koepke testified that Harold’s Automotive purchased
Code Civ. Proc., § 437e, subd. (a).
3° Code Civ. Proc., § 437c, subd. (c).
3! Code Civ. Proc., § 437c, subd. (p)(2).
® Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.
33 Code Civ. Proc., § 437c, subd. (p)(2); Andrews v. Foster Wheeler (2006) 138 Cal.App.4th 96, 101.
4 Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 69.
35 Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968, 975-976.
36 Rutherford v, Owens-Illinois, Inc., supra, 16 Cal.4th at 958, 982; Lineaweaver v. Plant Insulation
Co. (1995) 31 Cal App.4th 1409, 1415-1416; Dumin v. Owens-Corning Fiberglas Corp. (1994) 28
Cal.App.4th 650, 655; Whitmire v. Ingersoll-Rand (2010) 184 Cal.App.4th 1078, 1093 (stating that a
plaintiff must have been “exposed to such asbestos with “enough frequency and regularity as to
show a reasonable medical probability that this exposure was a factor in causing [his] injuries”);
Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1438.
37 SSUMEF Nos. 11 and 16. 1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4561-0071:4822-0669-3659.v1Bendix-brand brakes, EIS-brand brakes, and Borg Warner-brand clutches from any one of various
automotive supply houses in the San Mateo area, including Federal Auto Parts, Don L. Morris, and
Burlingame Auto Supply.* Mr. Koepke, however, could not expressly tie any one product specially
to any one store. Further, Mr. Koepke testified that Harold’s Automotive may have purchased
Rebox-brand brakes from Burlingame Auto Supply, although he was not sare.*® Mr. Nash testified
that Burlingame Auto Supply sold so-called “NAPA-brand” brakes to Harold’s Automotive some
time between 1990 and 2000.”
1 Plaintiffs Cannot Establish Mr. Koepke Was Exposed to Asbestos From a
“NAPA-Brand” Brake Supplied by Burlingame Auto Supply
According to the testimony of Mr. Nash, Burlingame Auto Supply sold “NAPA-brand”
brakes to Harold’s Automotive some time between 1990 and 2000.“! During that time, Genuine Parts
Company (“GPC”) was distributing both asbestos and non-asbestos containing drum brakes and
disc brakes to NAPA “jobbers,”*? To ascertain whether any of the “NAPA-brand” drum brakes or
disc brakes supplied by Burlingame Auto Supply to Harold’s Automotive contained asbestos,
Plaintiffs would need to know more information as to the particular part numbers or model numbers
of these particular “NAPA-brand” brakes. Mr. Nash was unable to provide any specific testimony
regarding any work performed at Harold’s Automotive with these “NAPA-brand” brakes, let alone a
specific part or model number for these brakes." Further, Plaintiffs have not provided any facts or
?8 SSUMF Nos. 5, 6, and 7.
*° SSUMF No. 8.
“° SSUMF No. 13.
“' SSUMF No. 13.
® GPC is a member of NAPA. Through its Distribution Centers, GPC exclusively distributes
automotive parts to retail outlets that are authorized through license to use the NAPA logo and
trademark, otherwise known as NAPA “jobbers.” Declaration of Byron Frantz in support of
Defendant Genuine Parts Company’s Motion for Summary Judgment or, in the alternative, Summary
Adjudication of Issues, { 4, attached as Exhibit P to the Declaration of Kelley T. Mahoney
“8 SSUMF Nos. 20 and 21.
“4 SSUME Nos. 14 and 15.
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MEMORANDUM OF POINTS AND AUTHORITIES [IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4561-007 1:4822-0669-3659.v1documents evidencing the parts numbers of the “NAPA-brand” brakes allegedly supplied to
Harold’s Automotive through written discovery responses." Therefore, Plaintiffs cannot prove
these “NAPA-brand” brakes contained asbestos. Accordingly, Plaintiffs cannot prove Mr. Koepke
was exposed to asbestos from any “NAPA-brand” brakes supplied to Harold’s Automotive by
Burlingame Auto Supply.
2. Plaintiffs Have No Admissible Evidence that Mr. Koepke Was Exposed to
Asbestos From Any Bendix-brand Brakes, EIS-brand Brakes, Rebox-
brand Brakes, or BorgWarner-brand Clutches Supplied by Burlingame
Auto Supply
Because Plaintiffs cannot establish that Mr. Koepke was exposed to asbestos from any so-
called “NAPA-brand” brakes supplied to Harold’s Automotive by Burlingame Auto Supply, the only
remaining products at issue in this case include the Bendix-brand brakes, EIS-brand brakes, Rebox-
brand brakes, and Borg Warner-brand clutches Mr. Koepke claims Harold’s Automotive purchased
from Burlingame Auto Supply at some point during the 1986 through 2001 time period.
a Mr. Koepke Lacks Personal Knowledge to Establish That Any
Bendix-brand Brakes, EIS-brand Brakes, Rebox-brand Brakes, or
BorgWarner-brand Clutches Worked With At Harold’s
Automotive Were Supplied By Burlingame Auto Supply and,
Therefore, this Testimony Must Be Excluded
As is well established under Evidence Code section 702, “the testimony of a witness
concerning a particular matter is inadmissible unless he has personal knowledge of the matter.’*** In
the case at hand, Mr. Koepke lacks personal knowledge to establish that any Bendix-brand brakes,
EIS-brand brakes, Rebox-brand brakes, or Borg Warner-brand clutches worked with at Harold’s
Automotive were supplied by Burlingame Auto Supply. Mr. Koepke never ‘personally purchased
4 SSUME Nos. 2 and 3.
4 Evid. Code, § 702, subd. (a); see also Civ. Proc. Code § 437c, subd. (d) (supporting declarations
must be based on personal knowledge).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4561-007 1:4822-0669-3659.v1products from Burlingame Auto Supply. In fact, he admitted that he only personally visited
Burlingame Auto Supply on one single occasion over the fifteen year period he used it as a supplier.
Otherwise, he was never at Burlingame Auto Supply to actually personally observe what products
were purchased at that store. Further, Mr. Koepke conceded he could not identify a specific instance
in which he was in the presence of someone removing or installing a brake or clutch he believed to
be supplied by Burlingame Auto Supply, or a specific instance in which he ever handled a brake he
believed to be supplied by Burlingame Auto Supply. Therefore, Plaintiffs cannot definitively
establish that any one set of Bendix-brand brakes, EIS-brand brakes, Rebox-brand brakes, or
BorgWarner-brand clutches actually came from Burlingame Auto Supply.
Thus, in order for Plaintiffs to practically establish that any of the products at issue were
definitively supplied by Burlingame Auto Supply, said products would either have to exhibit
identifying marks indicating they came from Burlingame Auto Supply, Burlingame Auto Supply
would have to be the exclusive supplier of said products to Burlingame Auto Supply, a product-
identification witness would need to personally testify to purchasing said products, or Plaintiffs
would need to submit invoices or documents to show Burlingame Auto Supply sold these particular
products to Harold’s Automotive. Because Plaintiffs have not produced any of the preceding
evidence at this stage in the litigation, one month before trial, it is clear they have no such evidence
to set forth.
b. None of the Bendix-brand brakes, EIS-brand brakes,
Rebox-brand brakes, or BorgWarner-brand Clutches
Possess Identifying Marks that Would Indicate the
Products Were Supplied By Burlingame Auto Supply
Although Burlingame Auto Supply was a NAPA “jobber” from 1986 through 2001, NAPA
did not license it trademark or logo for use on Bendix, EIS, or Rebox-brand brakes or Borg Warner-
brand clutches. Additionally, NAPA did not license its trademark or logo for use on the packaging
of such products,’ Therefore, Plaintiffs cannot link any purchase of Bendix, EIS, or Rebox-brand
brakes or BorgWarer-brand clutches to Burlingame Auto Supply by the presence of a NAPA logo
on the packaging or products themselves, as no NAPA logo would ever have existed on these
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4561-0071 :4822-0669-3659.v1products or the packaging of these products.
c Burlingame Auto Supply Was Not the Exclusive Supplier
of Bendix-brand brakes, EIS-brand brakes, or
BorgWarner-brand Clutches to Harold’s Automotive
Throughout his deposition, Mr. Koepke testified that Harold’s Automotive purchased
Bendix-brand brakes, EIS-brand brakes, and Borg Warner-brand clutches from various other local
automotive suppliers in the San Mateo area, other than Burlingame Auto Supply, including Don L-
Morris and Federal Auto Parts. Therefore, the Bendix-brand brakes, EIS-brand brakes, or
Borg Warner-brand clutches at Harold’s Automotive could not have come from any of these stores.
There is no evidence that ties any of these products to Burlingame Auto Supply. Therefore,
Plaintiffs cannot definitively establish that any particular set of these brakes or clutch parts were
supplied by Burlingame Auto Supply.
da No Product Identification Witness Has Any Personal
Knowledge of Any Purchase of Bendix-brand brakes, EIS-
brand brakes, Rebox-brand brakes, or BorgWarner-brand
clutches from Burlingame Auto Supply for Use at Hareld’s
Automotive
Other than Mr. Koepke, Mr. Nash was the only other product identification witness able to
testify to actual purchases from Burlingame Auto Supply for use at Harold’s Automotive. Although
Mr. Nash personally purchased “NAPA-brand” brakes from Burlingame Auto Supply, he did not :
identify personally purchasing Bendix-brand brakes, ElS-brand brakes, Rebox-brand brakes, or
Borg Warner-brand clutches from Burlingame Auto Supply on any occasion. In fact, when asked
directly regarding products supplied by Burlingame Auto Supply to Harold’s, he did not identify
either Bendix-brand brakes, EIS-brand brakes, Rebox-brand brakes, or Borg Warner-brand clutches.
Therefore, Plaintiffs have not produced any witness who personally purchased these particular brake
and clutch products from Burlingame Auto Supply.
e Plaintiffs Have Not Produced Any Documents to Establish
Burlingame Auto Supply Supplied Bendix-brand brakes,
i
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4561-007 1:4822-0669-3659.v1om YN DA BB YH NY me
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EIS-brand brakes, Rebox-brand brakes, or BorgWarner-
brand clutches to Harold’s Automotive
Through written discovery, Foreland specifically asked Plaintiffs to produce all documents to
show Mr. Koepke was exposed to asbestos from any product sold or supplied by Burlingame Auto
Supply. In response, Plaintiffs have failed to provide a single invoice, receipt, or product package to
show that any Bendix, EIS, or Rebox-brand brakes or BorgWarner-brand clutches were supplied to
Harold’s Automotive by Burlingame Auto Supply. Because Plaintiffs have failed to produce such
information by this stage of the litigation, it is unlikely they have such information.
Accordingly, because Plaintiffs have failed to establish that Mr. Koepke was exposed to
asbestos from any product sold or supplied by Burlingame Auto Supply, Foreland is entitled to
summary judgment in this case.
Cc. If the Court Is Unwilling to Grant Summary Judgment, Foreland is Entitled
to Summary Adjudication of Plaintiffs’ Fourth Cause of Action for
Fraud/Failure to Warn Because Plaintiffs Have Not and Cannot Prodace Any
Evidence to Support this Cause of Action.
Plaintiffs contend that Foreland is liable for fraud/failure to warn. A commercial seller or
distributor may only be liable for harm caused by a product if the product is “defective because of
inadequate instructions or warnings.”"” A product is defective because of inadequate instructions or
warnings when the foreseeable risks of harm posed by the product could have been reduced or
avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the omission of the instructions or warnings
renders the product not reasonably safe."® Plaintiffs claim that all defendants, including Foreland,
made “suggestions of fact which were not true and which the defendants did not believe to be true,
assertions of fact of that which was not true, which the defendants had no reasonable ground for
47 Restatement (Third) of Torts §§ 1, 2 (2013).
48 Restatement (Third) of Torts § 2(c) (2013).
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believing it to be true, [or] suppression[s] of facts when a duty existed to disclose it."”
Plaintiffs have not produced a single shred of evidence that Foreland either by act or
omission, made assertions of fact that it knew or should have known were not true, and upon which.
Mr. Koepke relied. In response to Foreland’s request that he state all facts to support his cause of
action for fraud/failure to. warn asserted against Foreland, Mr. Koepke generally alleges “Defendant
knew or should have known from scientific and medical literature no later than the 1930s that
exposure to asbestos was harmful and caused disease, yet failed to warn its customers and the users
of its asbestos-containing products of the known hazard.”*’ Through this response, Plaintiffs fail to
state a single fact regarding the absence of warning related to any specific product supplied by
Foreland that Mr. Koepke allegedly used. Further, Plaintiffs fail to identify a single document to
show any absence of warning relating to any specific product supplied by Foreland that Mr. Koepke
allegedly used.*! Accordingly, summary adjudication should be granted as to Plaintiffs’ Fourth
Cause of Action.
D. If the Court Is Unwilling to Grant Summary Judgment, Foreland is Entitled
te Summary Adjudication of Plaintiffs’ Fifth Cause of Action for Conspiracy to
Defraud/Failure to Warn Because Plaintiffs Have Not and Cannot Produce Any
Evidence to Show Foreland Conspired With Others.
Plaintiffs claim that all “Product Defendants,” including Foreland, knowingly and willfully
conspired to make suggestions of fact which were not true and which defendants did not believe to
be true, assertions of fact of that which were not true, which the defendants had no reasonable
ground for believing to be true, or suppressions of facts when a duty existed to disclose them. To
support a claim for conspiracy, Plaintiffs must show that, even if Foreland is not actually committing
a tort itself, it shares with the immediate tortfeasors a common plan or design in its perpetration.* In
S Plaintifis’ First Amended Complaint for Personal. Injuries, attached as Exh. A to the Mahoney
CCk.
5° SSUMF No. 27.
51 SSUME No. 28.
52 Applied Equipment Corp. v. Litton Saudi Arabia Lid. (1994) 7 Cal 4th 503, 510-111.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES.
4561-007 } :4822-0669-3659.v1this way, a co-conspirator incurs tort liability co-equal with the immediate tortfeasors.
Plaintiffs have not and cannot produce evidence of Foreland’s involvement in a conspiracy,
let alone evidence to support Plaintiffs’ cause of action for fraud/failure to warn, as was previously
established. In response to Foreland’s request that Mr. Koepke state all facts to support his cause of
action for conspiracy to defraud/failure to warn, Mr. Koepke again broadly states “Defendant placed
its asbestos-containing products in the stream of commerce, and in concert with the manufacturers
and distributors who rebranded and used its products.” Once again, Mr. Koepke does not provide a
single fact regarding a product supplied by Foreland at issue, or facts regarding the identities of the
manufacturers or distributors who allegedly rebranded and used said unspecified product. Further,
Mr. Koepke fails to identify a single document specific to Foreland to support his conspiracy
theory.** Accordingly, summary adjudication should be granted as to Plaintiffs’ Fifth Cause of
Action.
E. If the Court Is Unwilling to Grant Summary Judgment, Foreland is Entitled
to Summary Adjudication of Plaintiffs’ Claim for Punitive Damages Because
Plaintiffs Have Failed to Establish By Clear and Convincing Evidence that
Foreland Acted with Malice, Oppression, Fraud, Or In Conscious Disregard
For the Rights or Safety Of Others.
To prevail on a claim for punitive damages, a plaintiff has the burden of establishing by clear
and convincing evidence that the defendant acted with malice, oppression, fraud, or in conscious
distegard for the rights or safety of others.** Additionally, in order to justify an award of punitive
damages against a corporation, a plaintiff must not merely allege, but actually prove that a corporate
officer, director, or “managing agent” either committed, approved, or ratified malicious, despicable
53 SSUMF No. 29.
54 SSUMF No. 30.
55 Weber v. John Crane (2006) 143 Cal.App.4th 1433, 1440.
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conduct.* Here, however, Plaintiffs have failed to meet their burden, such that an award of punitive
damages is appropriate.
For instance, in response to Foreland’s Special Interrogatory expressly seeking all facts upon
which he bases his punitive damages claim, Mr. Koepke provides absolutely no facts as to
Foreland’s specific conduct towards him and, instead, provides a broad, conclusory statement,
without any supporting facts, that “Defendant knew or should have known from scientific and
medical literature no later than the 1930s that exposure to asbestos was harmful and caused disease,
yet failed to warn its customers and the users of its asbestos-containing products of the known
hazard.”*” Here, Mr. Koepke produces no facts to show how Foreland specifically acted with
malice, oppression, fraud, or in conscious disregard for the safety of others. Moreover, Mr. Koepke
has produced no facts to show how such conduct, if it occurred at all, was ratified by a corporate
officer of Foreland.*® :
Additionally, in response to Foreland’s Request for Production of Documents seeking all
documents and tangible items that support his claims for punitive damages against Foreland, Mr.
Koepke does not identify a single document specific to Foreland’s conduct towards him.”
Therefore, Plaintiffs have failed to meet their burden to prevail on their claim for punitive damages.
I. CONCLUSION
Foreland is entitled to summary judgment in this case because Plaintiffs cannot establish that
Mr. Koepke was exposed to any asbestos-containing product sold or supplied by Burlingame Auto
Supply.
In the alternative, if the Court is not willing to grant summary judgment, Foreland seeks
summary adjudication as to Plaintiffs’ second cause of action for breach of implied warranty, third
cause of action for fraud/failure to warn, fifth cause of action for conspiracy to defraud/failure to
°5 White y. Ultramar, Inc, (1999) 21 Cal.4th 563, 570, 576; Cruz v. HomeBase (2000) 83
Cal.App.4th 160, 168.
57 SSUME No. 31.
58 SSUMF No. 31.
5° SSUMF No. 32.
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warn, and as to their claim for punitive damages,
Dated: May 14, 2014 POND NORTH LLP
By:
” KELLEY F MAHO
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MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
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PROOF OF SERVICE
I declare that I am over the age of eighteen (18) and not a party to this action. My business
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Preview
FRANK D. POND (Bar No. 126191) RICHARD S, CHON (Bar No. 197541) ELECTRONICALLY tchon@pondnorth.com FILED KELLEY T. MAHONEY (Bar No. 283296) Superior Court of California, kmahoney@pondnorth.com County of San Francisco POND NORTH LLP 350 South Grand Avenue, Suite 3300 MAY 4 2014 Los Angeles, CA: 90071 BY: ROMY RISK Telephone: (213) 617-6170 Deputy Clerk Facsimile: (213) 623-3594 Attorneys for Defendant FORELAND PARTS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO HAROLD KOEPKE and NANCY KARIDIS-KOEPKE, Case No: CGC-13-276217 Plaintiffs, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT vs. FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE FORD MOTOR COMPANY; et al., ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES Defendants. Judge: Hon. Teri L. Jackson Department: 503 _ Date: June 11, 2014 Time: 9:30 A.M. Case Filed: | December 3, 0213 Trial Date: = June 16, 2014 L INTRODUCTION Plaintiffs’ claims against Foreland Parts, Inc. (“Foreland”) fail because even after numerous witnesses have been deposed, Plaintiffs still have absolutely no admissible evidence to support their claims. Plaintiffs allege that Mr. Koepke was exposed to asbestos from products for which Foreland is liable when he purchased automotive brakes and clutches from Burlingame Auto Supply 0 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADSUDICATION OF ISSUES 4561-007 1 :4822-0669-3659.v1(Foreland’s former d/b/a), which he identified as a NAPA retail store or “jobber,” for use at his automotive repair shop, Harold’s Automotive, from 1986 through 2001. Plaintiffs Harold Koepke and James Nash, his head mechanic at Harold’s Automotive, are the only product identification witnesses identified against Foreland who have been able to identify particular products Burlingame Auto Supply allegedly sold to Harold’s Automotive. James Nash testified that Burlingame Auto Supply sold so-called “NAPA-brand” brakes to Harold’s Automotive at some point between 1990 and 2000. During that time period, however, Genuine Parts Company distributed both non-asbestos and asbestos-containing brakes. Because Plaintiffs have been unable to produce any evidence to establish the “NAPA-brand” brakes supplied by Burlingame Auto Supply to Harold’s Automotive contained asbestos, Plaintiffs, in turn, cannot establish that Mr, Koepke was exposed to asbestos from these “NAPA-brand” brakes. Therefore, the only remaining products at issue in this case include the Bendix-brand, EIS- brand, and Rebox-brand brakes and BorgWarner-brand clutches Mr. Koepke testified could have been purchased from Burlingame Auto Supply. Mr. Koepke, however, could not expressly tie any one product specially to any one store. For instance, Mr. Koepke testified that Harold’s Automotive purchased Bendix-brand brakes, E1S-brand brakes, and BorgWarner-brand clutches from any one of various automotive supply houses in the San Mateo area, including Federal Auto Parts, Don L. Morris, and Burlingame Auto Supply. Further, Mr. Koepke testified that Harold’s Automotive may have purchased Rebox-brand brakes from Burlingame Auto Supply, although he never personally purchased them from Burlingame Auto Supply. Because Mr. Koepke has no personal knowledge that any of these particular products were purchased from Burlingame Auto Supply, and because Plaintiffs have not produced any additional evidence to link these products to Burlingame Auto Supply, Plaintiffs have not and cannot show that Burlingame Auto Supply sold or supplied said products to Harold’s Automotive. Therefore, because Plaintiffs cannot establish that Mr. Koepke was exposed to any asbestos-containing product sold or supplied by Burlingame Auto Supply, Foreland is entitled to summary judgment. In the alternative, if the Court is not willing to grant summary judgment, Foreland seeks summary adjudication as to Plaintiffs’ second cause of action for breach of implied warranty, third 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-0071:4822-0669-3659.v1om IN DH BR WH RBM YP MY NR De eee re PNRRR PRR YB SF eARZGAPBH eS cause of action for fraud/failure to warn, fifth cause of action for conspiracy to defraud/failure to warn, and as to their claim for punitive damages. U. STATEMENT OF FACTS A. Plaintiffs’ Complaint and Theories of Liability Against Foreland Plaintiffs’ First Amended Complaint alleges several causes of action against Foreland, including 1). negligence; 2). breach of implied warranty; 3). strict product liability; 4). fraud/failure to warn; 5). conspiracy to defraud/failure to warn; 6). loss of consortium; and a prayer for punitive damages.! B. Plaintiffs’ Factual Allegations Against Foreland Plaintiffs contend that Mr. Koepke was exposed to asbestos from products for which Foreland is liable when he purchased automotive brakes and clutches from NAPA “jobber,” Burlingame Auto Supply, for use at his automotive repair shop, Harold’s Automotive. Specifically, Plaintiffs claim Burlingame Auto Supply supplied brakes and clutches to Harold's Automotive from 1986 through 2001.? The only product identification witnesses identified against Foreland are Plaintiff Harold Koepke and the following three mechanics who worked for Mr. Koepke at Harold’s Automotive: James Nash (“Mr. Nash”), Lawrence Krasnow (“Mr. Krasnow”), and Craig Clifton (“Mr. Clifton”).4 1. Deposition Testimony of Plaintiff Harold Koepke Mr. Koepke testified he used Burlingame Auto Supply as a supplier to Harold’s Automotive from 1986 through 2001.> Mr. Koepke testified that Harold’s Automotive purchased Bendix-brand brakes, EIS-brand brakes, and Borg Warner-brand clutches from any one of various automotive supply houses in the San Mateo area, including Federal Auto Parts, Don L. Morris, and Burlingame Separate Statement of Undisputed Material Facts (“SSUMF”) No. 1. > SSUME No. 2. 3 SSUMF No. 4. 4 SSUME No. 2. 3 SSUMF No. 8. 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-007 1:4822-0669-3659.v1wn Oe ND 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Auto Supply.® Mr. Koepke, however, could not expressly tie any one product specially to any one store. Further, Mr. Koepke testified that Harold’s Automotive may have purchased Rebox-brand brakes from Burlingame Auto Supply.’ Mr. Koepke admitted that he only personally visited Burlingame Auto Supply on one single occasion over the fifteen year period he used it as a supplier.® Mr. Koepke conceded he could not identify.a specific instance in which he was in the presence of someone removing or installing a brake or clutch he believed to be supplied by Burlingame Auto Supply, or a specific instance in which he ever handled a brake he believed to be supplied by Burlingame Auto Supply? Finally, although Burlingame Auto Supply was a NAPA “jobber” from 1986 through 2001, NAPA did not license it trademark or logo for use on Bendix, EIS, or Rebox-brand brakes or BorgWarner-brand clutches.'° Additionally, NAPA did not license its trademark or logo for use on the packaging of such products."’ Therefore, the NAPA logo or trademark would never appear on Bendix, EIS, or Rebox-brand brakes or BorgWamer-brand clutches. Similarly, the NAPA logo or trademark would not appear on the packaging of said products. 2. Deposition Testimony of James Nash James Nash worked as Mr. Koepke’s head mechanic at Harold’s Automotive from 1980 to 2001. Mr. Nash testified Burlingame Auto Supply supplied so-called “NAPA-brand” brakes to Harold’s Automotive at some point during the 1990 through 2000 time frame.'? Mr. Nash could not identify a specific car by make model or year in which he or any other mechanic from Haroid’s ® SSUME Nos. 5, 6, and 7. 7 SSUME No. 8. 8 SSUME No. 9. ° SSUMF Nos. 10, 11, and 12. 10 SSUME Nos. 22, 23, 24, and 25. 4 SSUMF Nos. 22, 23, 24, and 25. "2. SSUME No. 13. 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-0071:4822-0669-3659.v1Co ew YW DH HR B® WH NH RM RM NN NN NY Rm mm ow A hm B&B ON = SoD we HN DH BW NY & Automotive removed or installed “NAPA-brand” brakes from Burlingame Auto Supply.” Similarly, Mr. Nash could not identify a specific instance in which Mr. Koepke worked with a “NAPA-brand” brake product supplied to Harold’s Automotive by Burlingame Auto Supply.’ By the year 1983, some of the drum brakes and some of the disc brakes distributed by Genuine Parts Company were asbestos-free.!* 3. Deposition Testimony of Lawrence Krasnow Lawrence Krasnow worked as a mechanic for Mr. Koepke at Harold’s Automotive from 1980 to 1992. Mr, Krasnow identified various local automotive supply houses and dealerships as suppliers to Harold’s Automotive, including Burlingame Auto Supply.!© Mr. Krasnow, however, never personally purchased parts from Burlingame Auto Supply for use at Harold’s Automotive.!” Further, Mr. Krasnow had no knowledge of any particular automotive products Harold’s Automotive may have purchased from Burlingame Auto Supply.'® 4. Deposition Testimony of Craig Clifton Craig Clifton worked as a mechanic at Harold’s Automotive from August of 1980 to carly 1983. Although Mr. Clifton identified various local automotive supply houses and dealerships as suppliers to Harold’s Automotive, he never identified Burlingame Auto Supply as a supplier.? 5. Plaintiffs’ Written Responses To Foreland’s Comprehensive “State-All- Facts” Discovery Foreland propounded comprehensive “state-all-facts” written discovery on Plaintiffs, including Special Interrogatories and Requests for Production of Documents and Tangible Items 13 SSUME No. 14. 4 SSUME No. 15. '5 SSUMF Nos. 20 and 21. 16 SSUME No. 16. '7 SSUME No 17. 18 SSUMF No. 18. '? SSUMF No. 19. 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-0071 :4822-0669-3659.v1CO em YD DH HW BF YW NY mm RMN N NY NY NR NY DQ om me mes oD AF A BR BP Ne & SF GO we BND HW BR BW NY S&F Oo (“Special Discovery”). Through this comprehensive written discovery, Foreland asked Plaintiffs to provide specific facts, witnesses, and documents to support their particular causes of action and claims against Foreland.” In response to said Special Discovery, however, Plaintiffs do not provide any facts or documents evidencing Mr. Koepke’s alleged exposure to a product for which Foreland would be liable, beyond what the product identification witnesses have testified to in deposition.”” Additionally, Plaintiffs do not provide any specific facts or documents to support their particular causes of action for breach of implied warranty, fraud/failure to warn, conspiracy to defraud/failure to warn, or their claims for punitive damages.” For instance, when asked to state al! facts to support his cause of action for fraud/failure to warn, Mr. Koepke generally alleges “Defendant knew or should have known from scientific and medical literature no later than the 1930s that exposure to asbestos was harmful and caused disease, yet failed to warn its customers and the users of its asbestos-containing products of the known hazard.”* ~When asked to produce all documents and tangible items to support his cause of breach of implied warranty asserted against Foreland, Mr. Koepke, again, fails to provide a single document to support this specific cause of action against Foreland and, instead, refers Foreland to various documents already produced in this litigation, including Mr. Koepke’s Amended Responses to San. Francisco Superior Court Standard Interrogatories, medical records, social security records, in addition to unspecified medical and scientific literature, unspecified trade, medical, scientific, and legal journal and magazine Foreland allegedly subscribed 10.4 Additionally, when asked to state all facts to support his cause of action for conspiracy to defraud/failure to warn, Mr. Koepke generally alleges “Defendant knew or should have known from scientific and medical literature no later than the 1930s that exposure to asbestos was harmful and 2° SSUMEF Nos. 2, 3, 26, 27, 28, 29, 30, and 31. 21 SSUMF Nos. 2 and 3. 22 SSUME Nos. 26, 27, 28, 29, 30, and 31. 23 SSUME No. 26. 24 SSUME No. 27. 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-0071 :4822-0669-3659.v1caused disease, yet failed to warn its customers and the users of its asbestos-containing products of the known hazard... Defendant placed its asbestos-containing products in the stream of commerce, and in concert with the manufacturers and distributors who rebranded and used its products,””° When asked to produce all documents and tangible items to support his cause of breach of implied warranty asserted against Foreland, Mr. Koepke yet again fails to provide a single document to support this specific cause of action against Foreland and, instead, refers Foreland to various documents already produced in this litigation, including Mr. Koepke’s Amended Responses to San Francisco Superior Court Standard Interrogatories, medical records, social security records, in addition to unspecified medical and scientific literature, unspecified trade, medical, scientific, and legal journal and magazine Foreland allegedly subscribed to."* Finally, when asked to state all facts supporting his claim for punitive damages, Mr. Koepke does not identify any facts regarding Foreland’s specific conduct towards him and, instead, broadly alleges that “Defendant knew or should have known from scientific and medical literature no later than the 1930s that exposure to asbestos was harmful and caused disease, yet failed to warn its customers and the users of its asbestos-containing products of the known hazard.”?7 Again, when asked to produce all documents and tangible items to support his clatm for punitive damages, Mr. Koepke did not identify a single document specific to Foreland’s conduct towards him and, instead, refers Foreland to various documents already produced in this litigation, including Mr. Koepke’s Amended Responses to San Francisco Superior Court Standard Interrogatories, medical records, social security records, in addition to unspecified medical and scientific literature, unspecified trade, medical, scientific, and legal journal and magazine FORELAND allegedly subscribed to.”® B. Summary Judgment Standard A party may move for summary judgment in any action where it contends that the action has 25 SSUME No. 28. 26 SSUMF No. 29. 27 SSUME No. 30. 28 SSUMF No. 31. 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-007 1:4822-0669-3659.v1Oo ce ND WH PF WN NM BR RY YW BY NN NY Dm eo 2 A vA & BN &§ SF © wR DH BW NH KY DS no merit? A court must grant summary judgment if the moving papers show that there is “no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”? The moving party has met its burden if it shows that one or more of the elements of a cause of action cannot be established.”! The moving party may shift its burden by showing that the opposing party “does not possess, and cannot reasonably obtain, needed evidence.” A party opposing a motion for summary judgment may not rely upon the allegations or denials of its pleadings to shoulder its burden.** If the opposing party fails to meet its burden, the court must grant summary judgment.* In asbestos actions, the plaintiff bears the burden of proof to establish each clement of his or her causes of action** The plaintiff, and not the defendant, has the burden of proving exposure toan asbestos-containing product for which a particular defendant is responsible and to which a plaintiff was exposed.°* B. Foreland Is Entitled to Summary Judgment Because Plaintiffs Cannot Establish That Mr. Koepke Was Exposed to Any Asbestos-Containing Product Sold or Supplied By Burlingame Auto Supply Although Plaintiffs named four product identification witnesses against Foreland, only Mr. Koepke and Mr. Nash were able to identify particular products Burlingame Auto Supply allegedly supplied to Harold’s Automotive*” Mr. Koepke testified that Harold’s Automotive purchased Code Civ. Proc., § 437e, subd. (a). 3° Code Civ. Proc., § 437c, subd. (c). 3! Code Civ. Proc., § 437c, subd. (p)(2). ® Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854. 33 Code Civ. Proc., § 437c, subd. (p)(2); Andrews v. Foster Wheeler (2006) 138 Cal.App.4th 96, 101. 4 Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 69. 35 Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968, 975-976. 36 Rutherford v, Owens-Illinois, Inc., supra, 16 Cal.4th at 958, 982; Lineaweaver v. Plant Insulation Co. (1995) 31 Cal App.4th 1409, 1415-1416; Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655; Whitmire v. Ingersoll-Rand (2010) 184 Cal.App.4th 1078, 1093 (stating that a plaintiff must have been “exposed to such asbestos with “enough frequency and regularity as to show a reasonable medical probability that this exposure was a factor in causing [his] injuries”); Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1438. 37 SSUMEF Nos. 11 and 16. 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-0071:4822-0669-3659.v1Bendix-brand brakes, EIS-brand brakes, and Borg Warner-brand clutches from any one of various automotive supply houses in the San Mateo area, including Federal Auto Parts, Don L. Morris, and Burlingame Auto Supply.* Mr. Koepke, however, could not expressly tie any one product specially to any one store. Further, Mr. Koepke testified that Harold’s Automotive may have purchased Rebox-brand brakes from Burlingame Auto Supply, although he was not sare.*® Mr. Nash testified that Burlingame Auto Supply sold so-called “NAPA-brand” brakes to Harold’s Automotive some time between 1990 and 2000.” 1 Plaintiffs Cannot Establish Mr. Koepke Was Exposed to Asbestos From a “NAPA-Brand” Brake Supplied by Burlingame Auto Supply According to the testimony of Mr. Nash, Burlingame Auto Supply sold “NAPA-brand” brakes to Harold’s Automotive some time between 1990 and 2000.“! During that time, Genuine Parts Company (“GPC”) was distributing both asbestos and non-asbestos containing drum brakes and disc brakes to NAPA “jobbers,”*? To ascertain whether any of the “NAPA-brand” drum brakes or disc brakes supplied by Burlingame Auto Supply to Harold’s Automotive contained asbestos, Plaintiffs would need to know more information as to the particular part numbers or model numbers of these particular “NAPA-brand” brakes. Mr. Nash was unable to provide any specific testimony regarding any work performed at Harold’s Automotive with these “NAPA-brand” brakes, let alone a specific part or model number for these brakes." Further, Plaintiffs have not provided any facts or ?8 SSUMF Nos. 5, 6, and 7. *° SSUMF No. 8. “° SSUMF No. 13. “' SSUMF No. 13. ® GPC is a member of NAPA. Through its Distribution Centers, GPC exclusively distributes automotive parts to retail outlets that are authorized through license to use the NAPA logo and trademark, otherwise known as NAPA “jobbers.” Declaration of Byron Frantz in support of Defendant Genuine Parts Company’s Motion for Summary Judgment or, in the alternative, Summary Adjudication of Issues, { 4, attached as Exhibit P to the Declaration of Kelley T. Mahoney “8 SSUMF Nos. 20 and 21. “4 SSUME Nos. 14 and 15. 8 MEMORANDUM OF POINTS AND AUTHORITIES [IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-007 1:4822-0669-3659.v1documents evidencing the parts numbers of the “NAPA-brand” brakes allegedly supplied to Harold’s Automotive through written discovery responses." Therefore, Plaintiffs cannot prove these “NAPA-brand” brakes contained asbestos. Accordingly, Plaintiffs cannot prove Mr. Koepke was exposed to asbestos from any “NAPA-brand” brakes supplied to Harold’s Automotive by Burlingame Auto Supply. 2. Plaintiffs Have No Admissible Evidence that Mr. Koepke Was Exposed to Asbestos From Any Bendix-brand Brakes, EIS-brand Brakes, Rebox- brand Brakes, or BorgWarner-brand Clutches Supplied by Burlingame Auto Supply Because Plaintiffs cannot establish that Mr. Koepke was exposed to asbestos from any so- called “NAPA-brand” brakes supplied to Harold’s Automotive by Burlingame Auto Supply, the only remaining products at issue in this case include the Bendix-brand brakes, EIS-brand brakes, Rebox- brand brakes, and Borg Warner-brand clutches Mr. Koepke claims Harold’s Automotive purchased from Burlingame Auto Supply at some point during the 1986 through 2001 time period. a Mr. Koepke Lacks Personal Knowledge to Establish That Any Bendix-brand Brakes, EIS-brand Brakes, Rebox-brand Brakes, or BorgWarner-brand Clutches Worked With At Harold’s Automotive Were Supplied By Burlingame Auto Supply and, Therefore, this Testimony Must Be Excluded As is well established under Evidence Code section 702, “the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.’*** In the case at hand, Mr. Koepke lacks personal knowledge to establish that any Bendix-brand brakes, EIS-brand brakes, Rebox-brand brakes, or Borg Warner-brand clutches worked with at Harold’s Automotive were supplied by Burlingame Auto Supply. Mr. Koepke never ‘personally purchased 4 SSUME Nos. 2 and 3. 4 Evid. Code, § 702, subd. (a); see also Civ. Proc. Code § 437c, subd. (d) (supporting declarations must be based on personal knowledge). MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-007 1:4822-0669-3659.v1products from Burlingame Auto Supply. In fact, he admitted that he only personally visited Burlingame Auto Supply on one single occasion over the fifteen year period he used it as a supplier. Otherwise, he was never at Burlingame Auto Supply to actually personally observe what products were purchased at that store. Further, Mr. Koepke conceded he could not identify a specific instance in which he was in the presence of someone removing or installing a brake or clutch he believed to be supplied by Burlingame Auto Supply, or a specific instance in which he ever handled a brake he believed to be supplied by Burlingame Auto Supply. Therefore, Plaintiffs cannot definitively establish that any one set of Bendix-brand brakes, EIS-brand brakes, Rebox-brand brakes, or BorgWarner-brand clutches actually came from Burlingame Auto Supply. Thus, in order for Plaintiffs to practically establish that any of the products at issue were definitively supplied by Burlingame Auto Supply, said products would either have to exhibit identifying marks indicating they came from Burlingame Auto Supply, Burlingame Auto Supply would have to be the exclusive supplier of said products to Burlingame Auto Supply, a product- identification witness would need to personally testify to purchasing said products, or Plaintiffs would need to submit invoices or documents to show Burlingame Auto Supply sold these particular products to Harold’s Automotive. Because Plaintiffs have not produced any of the preceding evidence at this stage in the litigation, one month before trial, it is clear they have no such evidence to set forth. b. None of the Bendix-brand brakes, EIS-brand brakes, Rebox-brand brakes, or BorgWarner-brand Clutches Possess Identifying Marks that Would Indicate the Products Were Supplied By Burlingame Auto Supply Although Burlingame Auto Supply was a NAPA “jobber” from 1986 through 2001, NAPA did not license it trademark or logo for use on Bendix, EIS, or Rebox-brand brakes or Borg Warner- brand clutches. Additionally, NAPA did not license its trademark or logo for use on the packaging of such products,’ Therefore, Plaintiffs cannot link any purchase of Bendix, EIS, or Rebox-brand brakes or BorgWarer-brand clutches to Burlingame Auto Supply by the presence of a NAPA logo on the packaging or products themselves, as no NAPA logo would ever have existed on these 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-0071 :4822-0669-3659.v1products or the packaging of these products. c Burlingame Auto Supply Was Not the Exclusive Supplier of Bendix-brand brakes, EIS-brand brakes, or BorgWarner-brand Clutches to Harold’s Automotive Throughout his deposition, Mr. Koepke testified that Harold’s Automotive purchased Bendix-brand brakes, EIS-brand brakes, and Borg Warner-brand clutches from various other local automotive suppliers in the San Mateo area, other than Burlingame Auto Supply, including Don L- Morris and Federal Auto Parts. Therefore, the Bendix-brand brakes, EIS-brand brakes, or Borg Warner-brand clutches at Harold’s Automotive could not have come from any of these stores. There is no evidence that ties any of these products to Burlingame Auto Supply. Therefore, Plaintiffs cannot definitively establish that any particular set of these brakes or clutch parts were supplied by Burlingame Auto Supply. da No Product Identification Witness Has Any Personal Knowledge of Any Purchase of Bendix-brand brakes, EIS- brand brakes, Rebox-brand brakes, or BorgWarner-brand clutches from Burlingame Auto Supply for Use at Hareld’s Automotive Other than Mr. Koepke, Mr. Nash was the only other product identification witness able to testify to actual purchases from Burlingame Auto Supply for use at Harold’s Automotive. Although Mr. Nash personally purchased “NAPA-brand” brakes from Burlingame Auto Supply, he did not : identify personally purchasing Bendix-brand brakes, ElS-brand brakes, Rebox-brand brakes, or Borg Warner-brand clutches from Burlingame Auto Supply on any occasion. In fact, when asked directly regarding products supplied by Burlingame Auto Supply to Harold’s, he did not identify either Bendix-brand brakes, EIS-brand brakes, Rebox-brand brakes, or Borg Warner-brand clutches. Therefore, Plaintiffs have not produced any witness who personally purchased these particular brake and clutch products from Burlingame Auto Supply. e Plaintiffs Have Not Produced Any Documents to Establish Burlingame Auto Supply Supplied Bendix-brand brakes, i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-007 1:4822-0669-3659.v1om YN DA BB YH NY me Ny RMN NR NN RD me BRRRRE BRE FE Se WADE HEE S EIS-brand brakes, Rebox-brand brakes, or BorgWarner- brand clutches to Harold’s Automotive Through written discovery, Foreland specifically asked Plaintiffs to produce all documents to show Mr. Koepke was exposed to asbestos from any product sold or supplied by Burlingame Auto Supply. In response, Plaintiffs have failed to provide a single invoice, receipt, or product package to show that any Bendix, EIS, or Rebox-brand brakes or BorgWarner-brand clutches were supplied to Harold’s Automotive by Burlingame Auto Supply. Because Plaintiffs have failed to produce such information by this stage of the litigation, it is unlikely they have such information. Accordingly, because Plaintiffs have failed to establish that Mr. Koepke was exposed to asbestos from any product sold or supplied by Burlingame Auto Supply, Foreland is entitled to summary judgment in this case. Cc. If the Court Is Unwilling to Grant Summary Judgment, Foreland is Entitled to Summary Adjudication of Plaintiffs’ Fourth Cause of Action for Fraud/Failure to Warn Because Plaintiffs Have Not and Cannot Prodace Any Evidence to Support this Cause of Action. Plaintiffs contend that Foreland is liable for fraud/failure to warn. A commercial seller or distributor may only be liable for harm caused by a product if the product is “defective because of inadequate instructions or warnings.”"” A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe."® Plaintiffs claim that all defendants, including Foreland, made “suggestions of fact which were not true and which the defendants did not believe to be true, assertions of fact of that which was not true, which the defendants had no reasonable ground for 47 Restatement (Third) of Torts §§ 1, 2 (2013). 48 Restatement (Third) of Torts § 2(c) (2013). 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-0071 :4822-0669-3659.v1Oo Oe NY DW BR WN RON NR BR Dat believing it to be true, [or] suppression[s] of facts when a duty existed to disclose it."” Plaintiffs have not produced a single shred of evidence that Foreland either by act or omission, made assertions of fact that it knew or should have known were not true, and upon which. Mr. Koepke relied. In response to Foreland’s request that he state all facts to support his cause of action for fraud/failure to. warn asserted against Foreland, Mr. Koepke generally alleges “Defendant knew or should have known from scientific and medical literature no later than the 1930s that exposure to asbestos was harmful and caused disease, yet failed to warn its customers and the users of its asbestos-containing products of the known hazard.”*’ Through this response, Plaintiffs fail to state a single fact regarding the absence of warning related to any specific product supplied by Foreland that Mr. Koepke allegedly used. Further, Plaintiffs fail to identify a single document to show any absence of warning relating to any specific product supplied by Foreland that Mr. Koepke allegedly used.*! Accordingly, summary adjudication should be granted as to Plaintiffs’ Fourth Cause of Action. D. If the Court Is Unwilling to Grant Summary Judgment, Foreland is Entitled te Summary Adjudication of Plaintiffs’ Fifth Cause of Action for Conspiracy to Defraud/Failure to Warn Because Plaintiffs Have Not and Cannot Produce Any Evidence to Show Foreland Conspired With Others. Plaintiffs claim that all “Product Defendants,” including Foreland, knowingly and willfully conspired to make suggestions of fact which were not true and which defendants did not believe to be true, assertions of fact of that which were not true, which the defendants had no reasonable ground for believing to be true, or suppressions of facts when a duty existed to disclose them. To support a claim for conspiracy, Plaintiffs must show that, even if Foreland is not actually committing a tort itself, it shares with the immediate tortfeasors a common plan or design in its perpetration.* In S Plaintifis’ First Amended Complaint for Personal. Injuries, attached as Exh. A to the Mahoney CCk. 5° SSUMF No. 27. 51 SSUME No. 28. 52 Applied Equipment Corp. v. Litton Saudi Arabia Lid. (1994) 7 Cal 4th 503, 510-111. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES. 4561-007 } :4822-0669-3659.v1this way, a co-conspirator incurs tort liability co-equal with the immediate tortfeasors. Plaintiffs have not and cannot produce evidence of Foreland’s involvement in a conspiracy, let alone evidence to support Plaintiffs’ cause of action for fraud/failure to warn, as was previously established. In response to Foreland’s request that Mr. Koepke state all facts to support his cause of action for conspiracy to defraud/failure to warn, Mr. Koepke again broadly states “Defendant placed its asbestos-containing products in the stream of commerce, and in concert with the manufacturers and distributors who rebranded and used its products.” Once again, Mr. Koepke does not provide a single fact regarding a product supplied by Foreland at issue, or facts regarding the identities of the manufacturers or distributors who allegedly rebranded and used said unspecified product. Further, Mr. Koepke fails to identify a single document specific to Foreland to support his conspiracy theory.** Accordingly, summary adjudication should be granted as to Plaintiffs’ Fifth Cause of Action. E. If the Court Is Unwilling to Grant Summary Judgment, Foreland is Entitled to Summary Adjudication of Plaintiffs’ Claim for Punitive Damages Because Plaintiffs Have Failed to Establish By Clear and Convincing Evidence that Foreland Acted with Malice, Oppression, Fraud, Or In Conscious Disregard For the Rights or Safety Of Others. To prevail on a claim for punitive damages, a plaintiff has the burden of establishing by clear and convincing evidence that the defendant acted with malice, oppression, fraud, or in conscious distegard for the rights or safety of others.** Additionally, in order to justify an award of punitive damages against a corporation, a plaintiff must not merely allege, but actually prove that a corporate officer, director, or “managing agent” either committed, approved, or ratified malicious, despicable 53 SSUMF No. 29. 54 SSUMF No. 30. 55 Weber v. John Crane (2006) 143 Cal.App.4th 1433, 1440. 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-007 1:4822-0669-3659.v1Oo em NY DW RB BN N NM BW NY WN Dm me ea BRR ESHER FF SF BUWRBDEGCHK AS conduct.* Here, however, Plaintiffs have failed to meet their burden, such that an award of punitive damages is appropriate. For instance, in response to Foreland’s Special Interrogatory expressly seeking all facts upon which he bases his punitive damages claim, Mr. Koepke provides absolutely no facts as to Foreland’s specific conduct towards him and, instead, provides a broad, conclusory statement, without any supporting facts, that “Defendant knew or should have known from scientific and medical literature no later than the 1930s that exposure to asbestos was harmful and caused disease, yet failed to warn its customers and the users of its asbestos-containing products of the known hazard.”*” Here, Mr. Koepke produces no facts to show how Foreland specifically acted with malice, oppression, fraud, or in conscious disregard for the safety of others. Moreover, Mr. Koepke has produced no facts to show how such conduct, if it occurred at all, was ratified by a corporate officer of Foreland.*® : Additionally, in response to Foreland’s Request for Production of Documents seeking all documents and tangible items that support his claims for punitive damages against Foreland, Mr. Koepke does not identify a single document specific to Foreland’s conduct towards him.” Therefore, Plaintiffs have failed to meet their burden to prevail on their claim for punitive damages. I. CONCLUSION Foreland is entitled to summary judgment in this case because Plaintiffs cannot establish that Mr. Koepke was exposed to any asbestos-containing product sold or supplied by Burlingame Auto Supply. In the alternative, if the Court is not willing to grant summary judgment, Foreland seeks summary adjudication as to Plaintiffs’ second cause of action for breach of implied warranty, third cause of action for fraud/failure to warn, fifth cause of action for conspiracy to defraud/failure to °5 White y. Ultramar, Inc, (1999) 21 Cal.4th 563, 570, 576; Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 168. 57 SSUME No. 31. 58 SSUMF No. 31. 5° SSUMF No. 32. . 15 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4561-007 1:4822-0669-3659.v1Co Oe ND HR BR BY NN NY NR NY NY NY DB Dm meme o UW DR A BF YBN | SHO OB IM HD HW BF WN | SF warn, and as to their claim for punitive damages, Dated: May 14, 2014 POND NORTH LLP By: ” KELLEY F MAHO 16 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FORELAND PARTS, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 456 1-0071:4822-0669-3659.¥1wa Oo DO DD 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 100 Spear Street, Suite 1200, San Francisco, CA 94105. 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