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FRANK D. POND (Bar No. 126191)
RICHARD S. CHON (Bar No. 197541)
rchon@pondnorth.com ELECTRONICALLY
KELLEY T. MAHONEY (Bar No. 283296) FILED
kmahoney@pondnorth.com EC iy
POND NORTH LLP Seperer Court of California
350 South Grand Avenue, Suite 3300 - an OnAA
Los Angeles, CA 90071 MAY 14 2014
Telephone: (213) 617-6170 Clerk of the Court
Facsimile: (213) 623-3594 BY: ROMY RISK
Deputy Clerk
Attorneys for Defendant
NATIONAL AUTOMOTIVE PARTS ASSOCIATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
HAROLD KOEPKE and Case No: CGC-13-276217
NANCY KARDIS-KOEPKE,
SEPARATE STATEMENT OF UNDISPUTED
Plaintiffs, MATERIAL FACTS IN SUPPORT OF
DEFENDANT NATIONAL AUTOMOTIVE
vs. PARTS ASSOCIATION’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE
FORD MOTOR COMPANY; ef 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
Pursuant to Code of Civil Procedure section 437c, subdivisions (c) and (f), and California
Rules of Court, rule 3.1350, subdivision (d), Defendant National Automotive Parts Association
(“NAPA”) hereby respectfully submits this Separate Statement of Undisputed Material Facts and
supporting evidence in support of its Motion for Summary Judgment, or, in the Alternative,
Summary Adjudication of Issues directed to all causes of action and the claim for punitive damages
asserted against NAPA by Plaintiffs Harold Koepke (“Mr. Koepke”) and Nancy Kardis-Koepke
(collectively “Plaintiffs”).
1
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.viALL CAUSES OF ACTION
Issue 1: NAPA is entitled to summary judgment on all of Plaintiffs’ causes of action
because Mr. Koepke did not sustain’ exposure to any asbestos-containing product as a result of any
conduct for which NAPA is legally responsible, and, therefore, NAPA did not cause Mr. Koepke’s
injuries. NAPA never designed, manufactured, sold, supplied, formulated or distributed any
asbestos-containing products. Thus, Plaintiffs have failed to present any evidence that Mr. Koepke
was exposed to asbestos from any product designed, manufactured, sold, supplied, formulated or
distributed by NAPA.
NAPA’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE
PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE
1. Plaintiffs filed a First Amended Complaint
on May 1, 2014, naming numerous defendants,
including NAPA. Plaintiffs allege a number of
causes of action against NAPA, including
negligence, breach of implied warranty, strict
product liability, fraud/failure to warn,
conspiracy to defraud/failure to warn, loss of
consortium, and a prayer for punitive damages.
Supporting Evidence; Plaintiffs’ First
Amended Complaint for Personal Injuries;
Negligence; Breach of Warranties; Strict
Liability; Fraud; Conspiracy; Premises
Liability; Negligent Undertaking; And Loss of
Consortium, attached hereto as Exhibit A to the
Declaration of Kelley T. Mahoney (“Mahoney
Decl.”).
2. NAPA is a not-for-profit membership
corporation,
Supporting Evidence: Declaration of Gaylord
Spencer (“Spencer Decl.”), p. 2 at J 2.
3. Members of NAPA operate automotive
parts distribution centers.
Supporting Evidence: Spencer Decl., p. 2 at
42.
4. NAPA has never manufactured any
asbestos-containing automotive products or any
automotive product of any kind.
Supporting Evidence:. Spencer Decl., p. 2 at
94.
2
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.vENAPA’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE
PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE
5. NAPA has never designed any asbestos-
containing automotive product, or any
automotive product of any kind.
Supporting Evidence: Spencer Decl., p. 2 at
q5.
6. NAPA has never sold any asbestos-
containing automotive product, or any
automotive product of any kind.
Supporting Evidence: Spencer Decl., p. 2 at
q8.
7. NAPA has never supplied any asbestos-
containing automotive product, or any
automotive product of any kind.
Supporting Evidence: Spencer Decl., p. 2 at
q7.
8. NAPA has never distributed any asbestos-
containing automotive product, or any
automotive product of any kind.
Supporting Evidence: Spencer Decl., p. 2 at
q6.
9, NAPA does not receive any direct
financial payment from the sale of any
automotive product.
Supporting Evidence: Spencer Decl., p. 2 at
q9.
10. _ Itis the NAPA members, and not NAPA
itself, that operate automotive parts distribution
centers. :
Supporting Evidence: Spencer Decl., p. 2 at
49 2-3.
10.
11. Members of NAPA operating these
distribution centers have permission to use the
NAPA logo and trademark.
Supporting Evidence: Spencer Decl., p. 2 at
q2.
1h.
12. Manufacturers who supply products to
the NAPA member distribution centers are also
licensed to use the NAPA logo and trademark.
12.
3
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320 :4834-7786-1914 v1Ce ND Hh RB BN oe
Beet tt
od A A BY N = SO Be NY HA A BB NH S&S S
NAPA’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE
PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE
Supporting Evidence: Spencer Decl, p. 2 at §
2.
13. Retail outlets or locations that are
customers of the NAPA member distribution
centers, known as “NAPA jobbers,” may also
license the NAPA logo and trademark.
Supporting Evidence: Spencer Decl., p. 2 at
492.
13.
14. NAPA does not exercise any control or
dominion over its members’ or licensees”
business decisions, operations, or the
manufacturing, design, specifications, or
formulations of automotive products and related
packaging.
Supporting Evidence: Spencer Decl., p. 2 at
93.
14.
15. NAPA does not exercise any control over
its members’ or the NAPA jobbers’ distribution
or marketing of automotive products.
Supporting Evidence: Spencer Decl., p. 2 at
43.
15.
16. Plaintiffs claim that Mr. Koepke was
exposed to asbestos-containing automotive
brakes and clutches he purchased from
Burlingame Auto Supply, which he identified
as a NAPA retail store or “jobber,” for use at
his automotive repair shop, Harold’s
Automotive, from 1986 through 2001.
Supporting Evidence: NAPA’s Special
Interrogatories to Plaintiff Harold Koepke, Set
One, served March 20, 2014, Special
Interrogatory No. |, attached as Exhibit B to
the Mahoney Decl.;
Plaintiff Harold Koepke’s Responses to
NAPA’s Special Interrogatories, served April
11, 2014, verified April 15, 2014, Special
Interrogatory Response No. 1] at 1:21-4:25,.-
attached as Exhibit C to the Mahoney Decl.;
NAPA’s Special Interrogatories to Plaintiff
Nancy Karidis-Koepke, Set One, served March
20, 2014, Special Interrogatory No. 1, attached
as Exhibit D to the Mahoney Decl.;
Plaintiff Nancy Karidis-Koepke’s Responses to
16.
4
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.¥1Oo eC ND A BRB BW Dm
RN YN YM YR DW Dm a
on TD Hh BB YH BR! CS OC Oe ND DR HR BR DW Dm SD
NAPA’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE
PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE
NAPA’s Special Interrogatories, served April
11, 2014, verified April 15, 2014, Special
Interrogatory Response No. | at 1:21-4:25,
attached as Exhibit E to the Mahoney Deci.;
Deposition of Harold Koepke (“Harold Koepke
Depo.”) (January 30, 2014), Vol. 6, 1057:4-
1057:14, attached as Exhibit I to the Mahoney
Decl.
17. Inresponse to NAPA’s Réquest for
Production requesting that Mr. Koepke identify
all documents to support his contention that he
was exposed to asbestos from any act or
omission by NAPA, Mr. Koepke fails to
provide a single document to support this
contention and, instead, refers NAPA 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, as well as the deposition testimony of
Plaintiff Harold Koepke, James Nash,
Lawrence Krasnow, and Craig Clifton.
Supporting Evidence: NAPA’s Request for
Production of Documents and Tangible Items to
Plaintiff Harold Koepke, Set One, served March
20, 2014, Request for Production No. 1,
attached as Exhibit F to the Mahoney Decl.;
Plaintiff Harold Koepke’s Responses to
NAPA’s Request for Production, served April
11, 2014, verified April 15, 2014, Request for
Production Response No. | at 1:22-5:25,
attached as Exhibit G to the Mahoney Decl.
17.
-18. The only product identification witnesses
identified against NAPA are Plaintiff Harold
Koepke and the following three mechanics who
worked for Mr. Koepke at Harold’s
Automotive: James Nash, Lawrence Krasnow,
and Craig Clifton.
Supporting Evidence: NAPA’s Special
Interrogatories to Plaintiff Harold Koepke, Set
One, served March 20, 2014, Special
Interrogatory No. 2, attached as Exhibit B to
the Mahoney Decl.;
Plaintiff Harold Koepke’s Responses to
NAPA’s Special Interrogatories, served April
11, 2014, verified April 15, 2014, Special
18.
5
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.v1CO OC ND HW Re BW Ne
RYN YQ YW NY DY ND mkt
eo Wy DR Mh FF YBN |= SG 0D OB MN KH HA FS WY KF OS
NAPA’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE
PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE
Interrogatory Response No. 2 at 4:26-6:4,
attached as Exhibit C to the Mahoney Decl.;
NAPA’s Special Interrogatories to Plaintiff
Nancy Karidis-Koepke, Set One, served March
20, 2014, Special Interrogatory No. 2, attached
as Exhibit D to the Mahoney Decl.;
Plaintiff Nancy Karidis-Koepke’s Responses to
NAPA’s Special Interrogatories, served April
11, 2014, verified April 15, 2014, Special
Interrogatory Response No. 2 at 4:56-6:4,
attached as Exhibit E to the Mahoney Decl.
19. Mr. Koepke testified that Burlingame
Auto Supply supplied Harold’s Automotive
with Bendix-brand brakes, E1S-brand brakes,
Rebox-brand brakes, and Borg-Warner brand
clutches between 1986 through 2001.
Supporting Evidence: Harold Koepke Depo.
(January 29, 2014), Vol. 5, 885:1-3, 887:4-5,
attached as Exhibit H to the Mahoney Decl;
Harold Koepke Depo. (January 30, 2014), Vol.
6, 1047:23-1048:14, 1057:4-14, 1058:22-
1059:3, attached as Exhibit I to the Mahoney
Decl.; Harold Koepke Depo. (January 31,
2014), Vol. 7, 1408:7-13, attached as Exhibit J.
to the Mahoney Decl.
19.
20. James Nash, Mr. Koepke’s head
mechanic at Harold’s Automotive, testified that
Burlingame Auto Supply supplied “NAPA-
brand” brakes to Harold’s Automotive at some
point during the 1990 through 2000 time frame.
Supporting Evidence: Deposition of James
Nash (“James Nash Depo.”) (February 13, .
2014), Vol. 1, 86:21-24, attached as Exhibit K
to the Mahoney Decl.; James Nash Depo.
(March 10, 2014), Vol. 2, 496:20-497:5,
attached as Exhibit L to the Mahoney Decl.
20.
21. James Nash could not identify a specific
car by make model or year in which he or any
other mechanic from Harold’s Automotive
removed or installed “NAPA-brand” brakes
from Burlingame Auto Supply.
Supporting Evidence: James Nash Depo.
(March 10, 2014), Vol. 2, 499:22-500:3, 500:4-
15, attached as Exhibit L to the Mahoney Decl.
21.
6
. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.v1NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND
FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
22. James Nash could not identify a specific | 22.
instance in which Mr. Koepke worked with a
“NAPA-brand” brake product supplied to
Harold’s Automotive by Burlingame Auto
Supply.
Supporting Evidence: James Nash Depo.
(March 10, 2014), Vol. 2, 500:16-20, attached
as Exhibit L to the Mahoney Deci.
23. Lawrence Krasnow, one of Mr. Koepke’s | 23.
mechanics at Harold’s Automotive, identified
various local automotive supply houses and
dealerships as suppliers to Harold’s
Automotive, including Burlingame Auto
Supply.
Supporting Evidence: Deposition of Lawrence
Krasnow (“Lawrence Krasnow Depo.”)
(February 25, 2014), Vol. 2, 348:24-349:2,
369:22-370:2, 370:12-19, attached as Exhibit
M to the Mahoney Decl. :
24, Lawrence Krasnow never personally 24.
purchased. parts from Burlingame Auto Supply
for use at Harold’s Automotive.
Supporting Evidence: Deposition of Lawrence
Krasnow (“Lawrence Krasnow Depo.”)
(February 25, 2014), Vol. 2, 348:24-349:2,°
349:6-8, attached as Exhibit M to the Mahoney
Decl.
25. Lawrence Krasnow had no knowledge of | 25.
any particular types of automotive products
Harold’s Automotive may have purchased from
Burlingame Auto Supply.
Supporting Evidence: Deposition of Lawrence
Krasnow (“Lawrence Krasnow Depo.”)
(February 25, 2014), Vol. 2, 349:9-12, attached
as Exhibit M to the Mahoney Decl.
26. Craig Clifton, one of Mr. Kocpke’s. | 26.
mechanics at Harold’s Automotive, did not
identify Burlingame Auto Supply as.a supplier
to Harold’s Automotive.
Supporting Evidence: Deposition of Craig
Clifton (“Craig Clifton Depo.”) (March 5,
2014), Vol. 1, 28:5-29:1, 248:14-24, 287:8-19,
attached as Exhibit N to the Mahoney Decl.
7
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786- 1914.1eo YD A FF YN
NAPA’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE
PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE
27. From 1960 through 2001, NAPA did not
license its trademark or logo to either Bendix or
its predecessors or successors. Accordingly,
neither the NAPA trademark nor its logo would
ever appear on the packaging for Bendix-brand
brakes or the Bendix-brand brakes themselves
from 1960 through 2001.
Supporting Evidence: Spencer Decl., p. 3 at
410.
27.
28. From 1960 through 2001, NAPA did not
license its trademark or logo to either EIS or its
predecessors or successors. Accordingly,
neither the NAPA trademark nor its logo would
ever appear on the packaging for E{S-brand
brakes or the EIS-brand brakes themselves from
1960 through 2001.
Supporting Evidence: Spencer Decl., p. 3 at
qil.
28.
29. . From 1960 through 2001, NAPA did not
license its trademark or logo to either Rebox or
its predecessors or successors, Accordingly, ©
neither the NAPA trademark nor its logo would
ever appear on the packaging for Rebox-brand
brakes or the Rebox-brand brakes themselves
from 1960 through 2001.
Supporting Evidence: Spencer Decl., p. 3 at
4/12.
29.
30. From 1960 through 2001, NAPA did not
license its trademark or logo to either
BorgWarner or its predecessors or successors.
Accordingly, neither the NAPA trademark nor
its logo would ever appear on the packaging for
Borg Warner-brand clutches or the Borg Wamer-
brand clutches themselves from 1960 through
2001.
Supporting Evidence: Spencer Deci., p. 3 at
q 3.
30.
31. By the year 1983, some of the drum
brakes distributed by Genuine Parts Company
were asbestos-free.
Supporting Evidence: Declaration of Byron
Frantz (“Frantz Decl.”) filed in support of '
Defendant Genuine Parts Company’s Motion
31.
8
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.v1NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND
FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
for Summary Judgment or, in the alternative,
Summary Adjudication of Issues, p, 3 at { 9,
attached as Exhibit O to the Mahoney Decl.
32. By the year 1983, some of the disc brakes | 32.
distributed by Genuine Parts Company were
asbestos-free.
Supporting Evidence: Frantz Decl., p. 3 at
| 10, attached as Exhibit O to the Mahoney
Deel.
PLAINTIFFS’ SECOND CAUSE OF ACTION
(Breach of Implied Warranty)
Issue 2: Plaintiffs’ Second Cause of Action for Breach of Implied Warranty fails as a matter
of law because Plaintiffs have not provided evidence regarding any warranties made by NAPA .
regarding any asbestos-containing product, or that Mr. Koepke detrimentally and justifiably relied on
any such representations.
NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND
FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
33. Inresponse to NAPA’s Special 33.
Interrogatory requesting Mr. Koepke to state
all facts to support his cause of action for
breach of implied warranty asserted against
NAPA, Mr. Koepke generally alleges
“Defendant’s failure to address asbestos
handling and hazards constitutes
communications to plaintiff Harold Koepke
and other users of defendant’s products that
they were safe to work with, which is
deceptive. This conduct breached the implied
warranty of merchantability and fitness for a
particular purpose.”
Supporting Evidence: NAPA’s Special
Interrogatories to Plaintiff Harold Koepke, Set
One, served March 20, 2014, Special
Interrogatory No. 13, attached as Exhibit B to
the Mahoney Decl.; Plaintiff Harold Koepke’s
Responses to NAPA’s Special Interrogatories,
served April 11, 2014, verified April 15, 2014,
Special Interrogatory Response No. 13 at
9
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.v1NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND
FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
11:25-26, attached as Exhibit C to the
Mahoney Decl.
34. In response to NAPA’s Request for 34.
Production requesting that Mr. Koepke
identify all documents to support his cause of
action for fraud/failure to warn asserted against
“NAPA, Mr. Koepke fails to provide a single
document to support this cause of action and,
instead, refers NAPA to unspecified medical
and scientific literature, unspecified trade,
medical, scientific, and legal journal and
magazine NAPA allegedly subscribed to,
among other documents.
Supporting Evidence: NAPA’s Request for
Production of Documents and Tangible Items
to Plaintiff Harold Koepke, Set One, served
March 20, 2014, Request for Production No. 9,
attached as Exhibit F to the Mahoney Decl.;
Plaintiff Harold Koepke’s Responses to
NAPA’s Request for Production, served April
11, 2014, verified April 15, 2014, Request for
Production Response No. 9 at 6:21-22,
attached as Exhibit G to the Mahoney Decl.
PLAINTIFFS’ FOURTH CAUSE OF ACTION
(Fraud/Failure te Warn)
Issue 3: Plaintiffs’ Fourth Cause of Action for fraud/failure to warn fails as a matter of law
because Plaintiffs have not provided evidence that NAPA made suggestions of fact which were not
true and which NAPA did not believe to be true, assertions of fact of that which were not true, which
NAPA had no reasonable ground for believing to be true, or suppressions of facts when a duty
existed to disclose them.
NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND
FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
35. In response to NAPA’s Special 35.
Interrogatory requesting Mr. Koepke to state
all facts to support his cause of action for
fraud/failure to warn asserted against NAPA,
Mr. Koepke generally alleges “Defendant
10
SEPARATE STATEMENT OF UNDISPUTED MATERIAL PACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.V10 OND OR BR YD ND om
NY NM BN YW DW DQ ND RQ mee
et DW FB WN B= SG Yb BY DH BF BW YN HK S
NAPA’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE
PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE
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.”
Supporting Evidence: NAPA’s Special
Interrogatories to Plaintiff Harold Koepke, Set
One, served March 20, 2014, Special
Interrogatory No. 16, attached as Exhibit B to
the Mahoney Decl.; Plaintiff Harold Koepke’s
Responses to NAPA’s Special Interrogatories,
served April 11, 2014, verified April 15, 2014,
Special Interrogatory Response No, 16 at 12:3-
4, attached as Exhibit C to the Mahoney Decl.
36. In response to NAPA’s Request for
Production requesting that Mr. Koepke
identify all documents to support his cause of
action for fraud/failure to warn asserted against
NAPA, Mr. Koepke fails to provide a single
document to support this cause of action and,
instead, refers NAPA to unspecified medical
and scientific literature, unspecified trade,
medical, scientific, and legal journal and
magazine NAPA allegedly subscribed to,
among other documents.
Supporting Evidence: NAPA’s Request for
Production of Documents and Tangible Items
to Plaintiff Harold Koepke, Set One, served
March 20, 2014, Request for Production No.
10, attached as Exhibit F to the Mahoney
Decl.; Plaintiff Harold Koepke’s Responses to
NAPA’s Request for Production, served April
11, 2014, verified April 15, 2014, Request for
Production Response No. 10 at 6:23-24,
attached as Exhibit G to the Mahoney Decl.
36.
PLAINTIFFS’ FIFTH CAUSE OF ACTION
(Conspiracy to Defraud/Failure to Warn)
Issue 4: Plaintiffs’ Fifth Cause of Action for conspiracy to defraud/failure to warn fails as a
matter of law because Plaintiffs have not provided evidence that NAPA conspired with others to
make suggestions of fact which were not true and which defendants did not believe to be true,
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.v1Oo OC DD WB BW He
RN RN NY NN KN DR RD ee a
ot KAW ROW NO & S OD DQ DH BW NH mm oS
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.
NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND
FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
37. Inresponse to NAPA’s Special 37.
Interrogatory requesting Mr. Koepke to state
all facts to support his cause of action for
conspiracy to fraud/failure to warn asserted
against NAPA, 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....Defendant placed its asbestos-
containing products in the stream of
commerce, and in concert with the
manufacturers and distributors who rebranded
and used its preducts.”
Supporting Evidence: NAPA’s Special
Interrogatories to Plaintiff Harold Koepke, Set
One, served March 20, 2014, Special
Interrogatory No. 19, attached as Exhibit B to
the Mahoney Decl.; Plaintiff Harold Koepke’s
Responses to NAPA’s Special Interrogatories,
served April 11, 2014, verified April 15, 2014,
Special Interrogatory Response No. 19 at 12:9-
10, attached as Exhibit C to the Mahoney
Decl.
38. In response to NAPA’s Request for 38...
Production requesting that Mr. Koepke
identify all documents to support his cause of
action for conspiracy to fraud/failure to warn
asserted against NAPA, Mr. Koepke fails to
provide a single document to support this
cause of action and, instead, refers NAPA to
unspecified medical and scientific literature,
unspecified trade, medical, scientific, and legal
journal and magazine NAPA allegedly
subscribed to, among other documents.
Supporting Evidence: NAPA’s Request for
Production of Documents and Tangible Items
to Plaintiff Harold Koepke, Set One, served
March 20, 2014, Request for Production No.
11, attached as Exhibit F to the Mahoney
Decl.; Plaintiff Harold Koepke’s Responses to
NAPA’s Request for Production, served April
R
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.V1Oo ce SW DN UH BR WN oe
RM RM wD DM ND NR RD DN eet et
eo RU KR A RF YU Mb B& SBS OD we ND HA BR BH De Oo
NAPA’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE
PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE
11, 2014, verified April 15, 2014, Request for
Production Response No. 11 at 6:25-26,
attached as Exhibit G to the Mahoney Decl.
PLAINTIFFS’ CLAIM FOR PUNITIVE DAMAGES
Issue 5: Plaintiffs’ claim for punitive damages fails as a matter of law because Plaintiffs
cannot establish by clear and convincing evidence that NAPA acted with malice, oppression, fraud,
or in conscious disregard for the rights or safety of others in the commission of a tort.
NAPA’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE
PLAINTIFFS’ RESPONSE AND
SUPPORTING EVIDENCE
39. In response to NAPA’s Special
Interrogatory requesting Mr. Koepke to state
all facts to support his claim of punitive
damages asserted against NAPA, 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.”
Supporting Evidence; NAPA’s Special
Interrogatories to Plaintiff Harold Koepke, Set
One, served March 20, 2014, Special
Interrogatory No. 22, attached as Exhibit B to
the Mahoney Decl.; Plaintiff Harold Koepke’s
Responses to NAPA’s Special Interrogatories,
served April 11, 2014, verified April 15, 2014,
Special Interrogatory Response No. 22 at
12:15-16, attached as Exhibit C to the
Mahoney Decl.
39.
40. In response to NAPA’s Request for
Production requesting that Mr. Koepke
identify all documents to support his cause of
action for fraud/failure to warn asserted against
NAPA, Mr. Koepke fails to provide a single
document to support this cause of action and,
instead, refers NAPA to unspecified medical
and scientific literature, unspecified trade,
medical, scientific, and legal journals and
magazines NAPA allegedly subscribed to,
among other documents.
40.
13
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.v12D OB BW DHA RB WBN me
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NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND.
FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
Supporting Evidence: NAPA’s Request for
Production of Documents and Tangible Items
to Plaintiff Harold Koepke, Set One, served
March 20, 2014, Request for Production No.
12, attached as Exhibit F to the Mahoney
Decl; Plaintiff Harold Koepke’s Responses to
NAPA’s Request for Production, served April
11, 2014, verified April 15, 2014, Request for
Production Response No. 12 at 7:1-2, attached
as Exhibit G to the Mahoney Decl.
Dated: May 14, 2014 POND NORTH LLP
reer.
LEY 1) MAHONEY =
Attornays fgr Defendant
NATI AUTOMO’ ARTS ASSOCIATION
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA'S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.v1PROOF 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.
On May 14, 2014, I served the following document(s): SEPARATE STATEMENT OF
UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT NATIONAL
AUTOMOTIVE PARTS ASSOCIATION'S MOTION FOR SUMMARY JUDGMENT OR,
IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES on the interested parties
in this action as follows:
Kazan, McClain, Satterley, Lyons, et al. DEFENSE COUNSEL
Jack London Market Listed on the Transaction Receipt located on
55 Harrison Street, Suite 400 the LexisNexis File & Serve website
Oakland, CA 94607
GC 1am readily familiar with the business’ practice for collection and processing of
correspondence for mailing with the United States Postal Service. I know that the
correspondence was deposited with the United States Postal Service on the same day this
declaration was executed in the ordinary course of business. I know that the envelope was
sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date
in the United States mail at, Los Angeles, California.
By Overnight Service: I caused the above-referenced document(s) to be deposited in a box or
other facility regularly maintained by the overnight courier, or I delivered the above-
referenced document(s) to an overnight courier service, for delivery to the above
addressee(s).
eK By E-Service: I electronically served the:above document(s) via File & ServeXpress on the
recipients designated on the Transaction Receipt located on the File & ServeXpress website.
By Personal Service: I caused to be delivered by courier Nationwide Legal Express, such
envelope by hand to the offices of the above addressee(s).
By Personal Service: I delivered such envelope by hand to the offices of the addressee(s).
O By Facsimile Machine: The document was transmitted by facsimile transmission to the
number(s) indicated and was reported as complete and without error.
Executed: May 14, 2014
& (State) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
Tues We M Aow
4649.0320
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT NAPA’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
4649-0320:4834-7786-1914.v1
Preview
Nn a o FRANK D. POND (Bar No. 126191) RICHARD S. CHON (Bar No. 197541) rchon@pondnorth.com ELECTRONICALLY KELLEY T. MAHONEY (Bar No. 283296) FILED kmahoney@pondnorth.com EC iy POND NORTH LLP Seperer Court of California 350 South Grand Avenue, Suite 3300 - an OnAA Los Angeles, CA 90071 MAY 14 2014 Telephone: (213) 617-6170 Clerk of the Court Facsimile: (213) 623-3594 BY: ROMY RISK Deputy Clerk Attorneys for Defendant NATIONAL AUTOMOTIVE PARTS ASSOCIATION SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO HAROLD KOEPKE and Case No: CGC-13-276217 NANCY KARDIS-KOEPKE, SEPARATE STATEMENT OF UNDISPUTED Plaintiffs, MATERIAL FACTS IN SUPPORT OF DEFENDANT NATIONAL AUTOMOTIVE vs. PARTS ASSOCIATION’S MOTION FOR SUMMARY JUDGMENT OR, IN THE FORD MOTOR COMPANY; ef 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 Pursuant to Code of Civil Procedure section 437c, subdivisions (c) and (f), and California Rules of Court, rule 3.1350, subdivision (d), Defendant National Automotive Parts Association (“NAPA”) hereby respectfully submits this Separate Statement of Undisputed Material Facts and supporting evidence in support of its Motion for Summary Judgment, or, in the Alternative, Summary Adjudication of Issues directed to all causes of action and the claim for punitive damages asserted against NAPA by Plaintiffs Harold Koepke (“Mr. Koepke”) and Nancy Kardis-Koepke (collectively “Plaintiffs”). 1 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.viALL CAUSES OF ACTION Issue 1: NAPA is entitled to summary judgment on all of Plaintiffs’ causes of action because Mr. Koepke did not sustain’ exposure to any asbestos-containing product as a result of any conduct for which NAPA is legally responsible, and, therefore, NAPA did not cause Mr. Koepke’s injuries. NAPA never designed, manufactured, sold, supplied, formulated or distributed any asbestos-containing products. Thus, Plaintiffs have failed to present any evidence that Mr. Koepke was exposed to asbestos from any product designed, manufactured, sold, supplied, formulated or distributed by NAPA. NAPA’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE AND SUPPORTING EVIDENCE 1. Plaintiffs filed a First Amended Complaint on May 1, 2014, naming numerous defendants, including NAPA. Plaintiffs allege a number of causes of action against NAPA, including negligence, breach of implied warranty, strict product liability, fraud/failure to warn, conspiracy to defraud/failure to warn, loss of consortium, and a prayer for punitive damages. Supporting Evidence; Plaintiffs’ First Amended Complaint for Personal Injuries; Negligence; Breach of Warranties; Strict Liability; Fraud; Conspiracy; Premises Liability; Negligent Undertaking; And Loss of Consortium, attached hereto as Exhibit A to the Declaration of Kelley T. Mahoney (“Mahoney Decl.”). 2. NAPA is a not-for-profit membership corporation, Supporting Evidence: Declaration of Gaylord Spencer (“Spencer Decl.”), p. 2 at J 2. 3. Members of NAPA operate automotive parts distribution centers. Supporting Evidence: Spencer Decl., p. 2 at 42. 4. NAPA has never manufactured any asbestos-containing automotive products or any automotive product of any kind. Supporting Evidence:. Spencer Decl., p. 2 at 94. 2 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.vENAPA’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE AND SUPPORTING EVIDENCE 5. NAPA has never designed any asbestos- containing automotive product, or any automotive product of any kind. Supporting Evidence: Spencer Decl., p. 2 at q5. 6. NAPA has never sold any asbestos- containing automotive product, or any automotive product of any kind. Supporting Evidence: Spencer Decl., p. 2 at q8. 7. NAPA has never supplied any asbestos- containing automotive product, or any automotive product of any kind. Supporting Evidence: Spencer Decl., p. 2 at q7. 8. NAPA has never distributed any asbestos- containing automotive product, or any automotive product of any kind. Supporting Evidence: Spencer Decl., p. 2 at q6. 9, NAPA does not receive any direct financial payment from the sale of any automotive product. Supporting Evidence: Spencer Decl., p. 2 at q9. 10. _ Itis the NAPA members, and not NAPA itself, that operate automotive parts distribution centers. : Supporting Evidence: Spencer Decl., p. 2 at 49 2-3. 10. 11. Members of NAPA operating these distribution centers have permission to use the NAPA logo and trademark. Supporting Evidence: Spencer Decl., p. 2 at q2. 1h. 12. Manufacturers who supply products to the NAPA member distribution centers are also licensed to use the NAPA logo and trademark. 12. 3 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320 :4834-7786-1914 v1Ce ND Hh RB BN oe Beet tt od A A BY N = SO Be NY HA A BB NH S&S S NAPA’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE AND SUPPORTING EVIDENCE Supporting Evidence: Spencer Decl, p. 2 at § 2. 13. Retail outlets or locations that are customers of the NAPA member distribution centers, known as “NAPA jobbers,” may also license the NAPA logo and trademark. Supporting Evidence: Spencer Decl., p. 2 at 492. 13. 14. NAPA does not exercise any control or dominion over its members’ or licensees” business decisions, operations, or the manufacturing, design, specifications, or formulations of automotive products and related packaging. Supporting Evidence: Spencer Decl., p. 2 at 93. 14. 15. NAPA does not exercise any control over its members’ or the NAPA jobbers’ distribution or marketing of automotive products. Supporting Evidence: Spencer Decl., p. 2 at 43. 15. 16. Plaintiffs claim that Mr. Koepke was exposed to asbestos-containing automotive brakes and clutches he purchased from Burlingame Auto Supply, which he identified as a NAPA retail store or “jobber,” for use at his automotive repair shop, Harold’s Automotive, from 1986 through 2001. Supporting Evidence: NAPA’s Special Interrogatories to Plaintiff Harold Koepke, Set One, served March 20, 2014, Special Interrogatory No. |, attached as Exhibit B to the Mahoney Decl.; Plaintiff Harold Koepke’s Responses to NAPA’s Special Interrogatories, served April 11, 2014, verified April 15, 2014, Special Interrogatory Response No. 1] at 1:21-4:25,.- attached as Exhibit C to the Mahoney Decl.; NAPA’s Special Interrogatories to Plaintiff Nancy Karidis-Koepke, Set One, served March 20, 2014, Special Interrogatory No. 1, attached as Exhibit D to the Mahoney Decl.; Plaintiff Nancy Karidis-Koepke’s Responses to 16. 4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.¥1Oo eC ND A BRB BW Dm RN YN YM YR DW Dm a on TD Hh BB YH BR! CS OC Oe ND DR HR BR DW Dm SD NAPA’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE AND SUPPORTING EVIDENCE NAPA’s Special Interrogatories, served April 11, 2014, verified April 15, 2014, Special Interrogatory Response No. | at 1:21-4:25, attached as Exhibit E to the Mahoney Deci.; Deposition of Harold Koepke (“Harold Koepke Depo.”) (January 30, 2014), Vol. 6, 1057:4- 1057:14, attached as Exhibit I to the Mahoney Decl. 17. Inresponse to NAPA’s Réquest for Production requesting that Mr. Koepke identify all documents to support his contention that he was exposed to asbestos from any act or omission by NAPA, Mr. Koepke fails to provide a single document to support this contention and, instead, refers NAPA 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, as well as the deposition testimony of Plaintiff Harold Koepke, James Nash, Lawrence Krasnow, and Craig Clifton. Supporting Evidence: NAPA’s Request for Production of Documents and Tangible Items to Plaintiff Harold Koepke, Set One, served March 20, 2014, Request for Production No. 1, attached as Exhibit F to the Mahoney Decl.; Plaintiff Harold Koepke’s Responses to NAPA’s Request for Production, served April 11, 2014, verified April 15, 2014, Request for Production Response No. | at 1:22-5:25, attached as Exhibit G to the Mahoney Decl. 17. -18. The only product identification witnesses identified against NAPA are Plaintiff Harold Koepke and the following three mechanics who worked for Mr. Koepke at Harold’s Automotive: James Nash, Lawrence Krasnow, and Craig Clifton. Supporting Evidence: NAPA’s Special Interrogatories to Plaintiff Harold Koepke, Set One, served March 20, 2014, Special Interrogatory No. 2, attached as Exhibit B to the Mahoney Decl.; Plaintiff Harold Koepke’s Responses to NAPA’s Special Interrogatories, served April 11, 2014, verified April 15, 2014, Special 18. 5 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.v1CO OC ND HW Re BW Ne RYN YQ YW NY DY ND mkt eo Wy DR Mh FF YBN |= SG 0D OB MN KH HA FS WY KF OS NAPA’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE AND SUPPORTING EVIDENCE Interrogatory Response No. 2 at 4:26-6:4, attached as Exhibit C to the Mahoney Decl.; NAPA’s Special Interrogatories to Plaintiff Nancy Karidis-Koepke, Set One, served March 20, 2014, Special Interrogatory No. 2, attached as Exhibit D to the Mahoney Decl.; Plaintiff Nancy Karidis-Koepke’s Responses to NAPA’s Special Interrogatories, served April 11, 2014, verified April 15, 2014, Special Interrogatory Response No. 2 at 4:56-6:4, attached as Exhibit E to the Mahoney Decl. 19. Mr. Koepke testified that Burlingame Auto Supply supplied Harold’s Automotive with Bendix-brand brakes, E1S-brand brakes, Rebox-brand brakes, and Borg-Warner brand clutches between 1986 through 2001. Supporting Evidence: Harold Koepke Depo. (January 29, 2014), Vol. 5, 885:1-3, 887:4-5, attached as Exhibit H to the Mahoney Decl; Harold Koepke Depo. (January 30, 2014), Vol. 6, 1047:23-1048:14, 1057:4-14, 1058:22- 1059:3, attached as Exhibit I to the Mahoney Decl.; Harold Koepke Depo. (January 31, 2014), Vol. 7, 1408:7-13, attached as Exhibit J. to the Mahoney Decl. 19. 20. James Nash, Mr. Koepke’s head mechanic at Harold’s Automotive, testified that Burlingame Auto Supply supplied “NAPA- brand” brakes to Harold’s Automotive at some point during the 1990 through 2000 time frame. Supporting Evidence: Deposition of James Nash (“James Nash Depo.”) (February 13, . 2014), Vol. 1, 86:21-24, attached as Exhibit K to the Mahoney Decl.; James Nash Depo. (March 10, 2014), Vol. 2, 496:20-497:5, attached as Exhibit L to the Mahoney Decl. 20. 21. James Nash could not identify a specific car by make model or year in which he or any other mechanic from Harold’s Automotive removed or installed “NAPA-brand” brakes from Burlingame Auto Supply. Supporting Evidence: James Nash Depo. (March 10, 2014), Vol. 2, 499:22-500:3, 500:4- 15, attached as Exhibit L to the Mahoney Decl. 21. 6 . SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.v1NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 22. James Nash could not identify a specific | 22. instance in which Mr. Koepke worked with a “NAPA-brand” brake product supplied to Harold’s Automotive by Burlingame Auto Supply. Supporting Evidence: James Nash Depo. (March 10, 2014), Vol. 2, 500:16-20, attached as Exhibit L to the Mahoney Deci. 23. Lawrence Krasnow, one of Mr. Koepke’s | 23. mechanics at Harold’s Automotive, identified various local automotive supply houses and dealerships as suppliers to Harold’s Automotive, including Burlingame Auto Supply. Supporting Evidence: Deposition of Lawrence Krasnow (“Lawrence Krasnow Depo.”) (February 25, 2014), Vol. 2, 348:24-349:2, 369:22-370:2, 370:12-19, attached as Exhibit M to the Mahoney Decl. : 24, Lawrence Krasnow never personally 24. purchased. parts from Burlingame Auto Supply for use at Harold’s Automotive. Supporting Evidence: Deposition of Lawrence Krasnow (“Lawrence Krasnow Depo.”) (February 25, 2014), Vol. 2, 348:24-349:2,° 349:6-8, attached as Exhibit M to the Mahoney Decl. 25. Lawrence Krasnow had no knowledge of | 25. any particular types of automotive products Harold’s Automotive may have purchased from Burlingame Auto Supply. Supporting Evidence: Deposition of Lawrence Krasnow (“Lawrence Krasnow Depo.”) (February 25, 2014), Vol. 2, 349:9-12, attached as Exhibit M to the Mahoney Decl. 26. Craig Clifton, one of Mr. Kocpke’s. | 26. mechanics at Harold’s Automotive, did not identify Burlingame Auto Supply as.a supplier to Harold’s Automotive. Supporting Evidence: Deposition of Craig Clifton (“Craig Clifton Depo.”) (March 5, 2014), Vol. 1, 28:5-29:1, 248:14-24, 287:8-19, attached as Exhibit N to the Mahoney Decl. 7 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786- 1914.1eo YD A FF YN NAPA’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE AND SUPPORTING EVIDENCE 27. From 1960 through 2001, NAPA did not license its trademark or logo to either Bendix or its predecessors or successors. Accordingly, neither the NAPA trademark nor its logo would ever appear on the packaging for Bendix-brand brakes or the Bendix-brand brakes themselves from 1960 through 2001. Supporting Evidence: Spencer Decl., p. 3 at 410. 27. 28. From 1960 through 2001, NAPA did not license its trademark or logo to either EIS or its predecessors or successors. Accordingly, neither the NAPA trademark nor its logo would ever appear on the packaging for E{S-brand brakes or the EIS-brand brakes themselves from 1960 through 2001. Supporting Evidence: Spencer Decl., p. 3 at qil. 28. 29. . From 1960 through 2001, NAPA did not license its trademark or logo to either Rebox or its predecessors or successors, Accordingly, © neither the NAPA trademark nor its logo would ever appear on the packaging for Rebox-brand brakes or the Rebox-brand brakes themselves from 1960 through 2001. Supporting Evidence: Spencer Decl., p. 3 at 4/12. 29. 30. From 1960 through 2001, NAPA did not license its trademark or logo to either BorgWarner or its predecessors or successors. Accordingly, neither the NAPA trademark nor its logo would ever appear on the packaging for Borg Warner-brand clutches or the Borg Wamer- brand clutches themselves from 1960 through 2001. Supporting Evidence: Spencer Deci., p. 3 at q 3. 30. 31. By the year 1983, some of the drum brakes distributed by Genuine Parts Company were asbestos-free. Supporting Evidence: Declaration of Byron Frantz (“Frantz Decl.”) filed in support of ' Defendant Genuine Parts Company’s Motion 31. 8 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.v1NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE for Summary Judgment or, in the alternative, Summary Adjudication of Issues, p, 3 at { 9, attached as Exhibit O to the Mahoney Decl. 32. By the year 1983, some of the disc brakes | 32. distributed by Genuine Parts Company were asbestos-free. Supporting Evidence: Frantz Decl., p. 3 at | 10, attached as Exhibit O to the Mahoney Deel. PLAINTIFFS’ SECOND CAUSE OF ACTION (Breach of Implied Warranty) Issue 2: Plaintiffs’ Second Cause of Action for Breach of Implied Warranty fails as a matter of law because Plaintiffs have not provided evidence regarding any warranties made by NAPA . regarding any asbestos-containing product, or that Mr. Koepke detrimentally and justifiably relied on any such representations. NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 33. Inresponse to NAPA’s Special 33. Interrogatory requesting Mr. Koepke to state all facts to support his cause of action for breach of implied warranty asserted against NAPA, Mr. Koepke generally alleges “Defendant’s failure to address asbestos handling and hazards constitutes communications to plaintiff Harold Koepke and other users of defendant’s products that they were safe to work with, which is deceptive. This conduct breached the implied warranty of merchantability and fitness for a particular purpose.” Supporting Evidence: NAPA’s Special Interrogatories to Plaintiff Harold Koepke, Set One, served March 20, 2014, Special Interrogatory No. 13, attached as Exhibit B to the Mahoney Decl.; Plaintiff Harold Koepke’s Responses to NAPA’s Special Interrogatories, served April 11, 2014, verified April 15, 2014, Special Interrogatory Response No. 13 at 9 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.v1NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 11:25-26, attached as Exhibit C to the Mahoney Decl. 34. In response to NAPA’s Request for 34. Production requesting that Mr. Koepke identify all documents to support his cause of action for fraud/failure to warn asserted against “NAPA, Mr. Koepke fails to provide a single document to support this cause of action and, instead, refers NAPA to unspecified medical and scientific literature, unspecified trade, medical, scientific, and legal journal and magazine NAPA allegedly subscribed to, among other documents. Supporting Evidence: NAPA’s Request for Production of Documents and Tangible Items to Plaintiff Harold Koepke, Set One, served March 20, 2014, Request for Production No. 9, attached as Exhibit F to the Mahoney Decl.; Plaintiff Harold Koepke’s Responses to NAPA’s Request for Production, served April 11, 2014, verified April 15, 2014, Request for Production Response No. 9 at 6:21-22, attached as Exhibit G to the Mahoney Decl. PLAINTIFFS’ FOURTH CAUSE OF ACTION (Fraud/Failure te Warn) Issue 3: Plaintiffs’ Fourth Cause of Action for fraud/failure to warn fails as a matter of law because Plaintiffs have not provided evidence that NAPA made suggestions of fact which were not true and which NAPA did not believe to be true, assertions of fact of that which were not true, which NAPA had no reasonable ground for believing to be true, or suppressions of facts when a duty existed to disclose them. NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 35. In response to NAPA’s Special 35. Interrogatory requesting Mr. Koepke to state all facts to support his cause of action for fraud/failure to warn asserted against NAPA, Mr. Koepke generally alleges “Defendant 10 SEPARATE STATEMENT OF UNDISPUTED MATERIAL PACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.V10 OND OR BR YD ND om NY NM BN YW DW DQ ND RQ mee et DW FB WN B= SG Yb BY DH BF BW YN HK S NAPA’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE AND SUPPORTING EVIDENCE 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.” Supporting Evidence: NAPA’s Special Interrogatories to Plaintiff Harold Koepke, Set One, served March 20, 2014, Special Interrogatory No. 16, attached as Exhibit B to the Mahoney Decl.; Plaintiff Harold Koepke’s Responses to NAPA’s Special Interrogatories, served April 11, 2014, verified April 15, 2014, Special Interrogatory Response No, 16 at 12:3- 4, attached as Exhibit C to the Mahoney Decl. 36. In response to NAPA’s Request for Production requesting that Mr. Koepke identify all documents to support his cause of action for fraud/failure to warn asserted against NAPA, Mr. Koepke fails to provide a single document to support this cause of action and, instead, refers NAPA to unspecified medical and scientific literature, unspecified trade, medical, scientific, and legal journal and magazine NAPA allegedly subscribed to, among other documents. Supporting Evidence: NAPA’s Request for Production of Documents and Tangible Items to Plaintiff Harold Koepke, Set One, served March 20, 2014, Request for Production No. 10, attached as Exhibit F to the Mahoney Decl.; Plaintiff Harold Koepke’s Responses to NAPA’s Request for Production, served April 11, 2014, verified April 15, 2014, Request for Production Response No. 10 at 6:23-24, attached as Exhibit G to the Mahoney Decl. 36. PLAINTIFFS’ FIFTH CAUSE OF ACTION (Conspiracy to Defraud/Failure to Warn) Issue 4: Plaintiffs’ Fifth Cause of Action for conspiracy to defraud/failure to warn fails as a matter of law because Plaintiffs have not provided evidence that NAPA conspired with others to make suggestions of fact which were not true and which defendants did not believe to be true, SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.v1Oo OC DD WB BW He RN RN NY NN KN DR RD ee a ot KAW ROW NO & S OD DQ DH BW NH mm oS 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. NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 37. Inresponse to NAPA’s Special 37. Interrogatory requesting Mr. Koepke to state all facts to support his cause of action for conspiracy to fraud/failure to warn asserted against NAPA, 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....Defendant placed its asbestos- containing products in the stream of commerce, and in concert with the manufacturers and distributors who rebranded and used its preducts.” Supporting Evidence: NAPA’s Special Interrogatories to Plaintiff Harold Koepke, Set One, served March 20, 2014, Special Interrogatory No. 19, attached as Exhibit B to the Mahoney Decl.; Plaintiff Harold Koepke’s Responses to NAPA’s Special Interrogatories, served April 11, 2014, verified April 15, 2014, Special Interrogatory Response No. 19 at 12:9- 10, attached as Exhibit C to the Mahoney Decl. 38. In response to NAPA’s Request for 38... Production requesting that Mr. Koepke identify all documents to support his cause of action for conspiracy to fraud/failure to warn asserted against NAPA, Mr. Koepke fails to provide a single document to support this cause of action and, instead, refers NAPA to unspecified medical and scientific literature, unspecified trade, medical, scientific, and legal journal and magazine NAPA allegedly subscribed to, among other documents. Supporting Evidence: NAPA’s Request for Production of Documents and Tangible Items to Plaintiff Harold Koepke, Set One, served March 20, 2014, Request for Production No. 11, attached as Exhibit F to the Mahoney Decl.; Plaintiff Harold Koepke’s Responses to NAPA’s Request for Production, served April R SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.V1Oo ce SW DN UH BR WN oe RM RM wD DM ND NR RD DN eet et eo RU KR A RF YU Mb B& SBS OD we ND HA BR BH De Oo NAPA’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE AND SUPPORTING EVIDENCE 11, 2014, verified April 15, 2014, Request for Production Response No. 11 at 6:25-26, attached as Exhibit G to the Mahoney Decl. PLAINTIFFS’ CLAIM FOR PUNITIVE DAMAGES Issue 5: Plaintiffs’ claim for punitive damages fails as a matter of law because Plaintiffs cannot establish by clear and convincing evidence that NAPA acted with malice, oppression, fraud, or in conscious disregard for the rights or safety of others in the commission of a tort. NAPA’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE AND SUPPORTING EVIDENCE 39. In response to NAPA’s Special Interrogatory requesting Mr. Koepke to state all facts to support his claim of punitive damages asserted against NAPA, 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.” Supporting Evidence; NAPA’s Special Interrogatories to Plaintiff Harold Koepke, Set One, served March 20, 2014, Special Interrogatory No. 22, attached as Exhibit B to the Mahoney Decl.; Plaintiff Harold Koepke’s Responses to NAPA’s Special Interrogatories, served April 11, 2014, verified April 15, 2014, Special Interrogatory Response No. 22 at 12:15-16, attached as Exhibit C to the Mahoney Decl. 39. 40. In response to NAPA’s Request for Production requesting that Mr. Koepke identify all documents to support his cause of action for fraud/failure to warn asserted against NAPA, Mr. Koepke fails to provide a single document to support this cause of action and, instead, refers NAPA to unspecified medical and scientific literature, unspecified trade, medical, scientific, and legal journals and magazines NAPA allegedly subscribed to, among other documents. 40. 13 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.v12D OB BW DHA RB WBN me = Ss me WN wa NAPA’S UNDISPUTED MATERIAL PLAINTIFFS’ RESPONSE AND. FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE Supporting Evidence: NAPA’s Request for Production of Documents and Tangible Items to Plaintiff Harold Koepke, Set One, served March 20, 2014, Request for Production No. 12, attached as Exhibit F to the Mahoney Decl; Plaintiff Harold Koepke’s Responses to NAPA’s Request for Production, served April 11, 2014, verified April 15, 2014, Request for Production Response No. 12 at 7:1-2, attached as Exhibit G to the Mahoney Decl. Dated: May 14, 2014 POND NORTH LLP reer. LEY 1) MAHONEY = Attornays fgr Defendant NATI AUTOMO’ ARTS ASSOCIATION i4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO DEFENDANT NAPA'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.v1PROOF 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. On May 14, 2014, I served the following document(s): SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT NATIONAL AUTOMOTIVE PARTS ASSOCIATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES on the interested parties in this action as follows: Kazan, McClain, Satterley, Lyons, et al. DEFENSE COUNSEL Jack London Market Listed on the Transaction Receipt located on 55 Harrison Street, Suite 400 the LexisNexis File & Serve website Oakland, CA 94607 GC 1am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. I know that the correspondence was deposited with the United States Postal Service on the same day this declaration was executed in the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States mail at, Los Angeles, California. By Overnight Service: I caused the above-referenced document(s) to be deposited in a box or other facility regularly maintained by the overnight courier, or I delivered the above- referenced document(s) to an overnight courier service, for delivery to the above addressee(s). eK By E-Service: I electronically served the:above document(s) via File & ServeXpress on the recipients designated on the Transaction Receipt located on the File & ServeXpress website. By Personal Service: I caused to be delivered by courier Nationwide Legal Express, such envelope by hand to the offices of the above addressee(s). By Personal Service: I delivered such envelope by hand to the offices of the addressee(s). O By Facsimile Machine: The document was transmitted by facsimile transmission to the number(s) indicated and was reported as complete and without error. Executed: May 14, 2014 & (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Tues We M Aow 4649.0320 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT NAPA’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 4649-0320:4834-7786-1914.v1