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

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CARROLL. BURPICK &

MeDoxoucn LU

Anioaws
San FRANCISCO,

Garrett Sanderson II, Bar No. 131026
gsanderson@cbmlaw.com

Peter H. Cruz, Bar No. 220850
peruz@cbmlaw.com

CARROLL, BURDICK & McDONOUGH Lip

Attorneys at Law

44 Montgomery Street, Suite 400

San Francisco, California 94104

Telephone: 415.989.5900

Facsimile: 415.989.0932

Attorneys for Defendant
Volkswagen Group of America, Inc.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JAN 06 2014

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO.

HAROLD KOEPKE and NANCY KARIDIS-
KOEPKE,

Plaintiffs,
v.
FORD MOTOR COMPANY, et al.,

Defendants.

CBM-PRODUCTS-SF61 1008-1

Case No. CGC-13-276217

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF VOLKSWAGEN GROUP OF
AMERICA, INC.’S DEMURRER TO PLAINTIFFS’
COMPLAINT

Date: FEBRUARY 4, 2014
Time: 9:30 A.M.

Dept.: 503
Action Filed: December 3, 2013
Trial Date: None Set

Case No. CGC-13-276217

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VOLKSWAGEN GROUP OF AMERICA, INC,’S DEMURRER TO
PLAINTIFFS’ COMPLAINT.1 TABLE OF CONTENTS

3If1. INTRODUCTION AND SUMMARY OF ARGUMENT...

4 |[IL THE FOURTH CAUSE OF ACTION FOR FRAUD/FAILURE TO WARN FAILS
TO SATISFY THE HEIGHTENED PLEADING © REQUIREMENT ‘TS TO STATEA

6 |i. PLAINTIFFS* SIXTH CAUSE OF ACTION ~ STYLED CONSPIRACY TO
DEFRAUD/FAILURE TO WARN ~IS AT BEST, A DEFICIENTLY PLED

7 FRAUD CLAIM SUBJECT TO THE SAME HEIGHTENED PLEADING
STANDARDS... seetteeeees sieteetetesteeeneassessesentssesstatsicersee 7

28 |] cay-ropucrs srst 008-1 vie Case No. CGC-13-276217

Mepeoadttp. || MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VOLKSWAGEN GROUP OF AMERICA, INC. S DEMURRER TO
Aniwaisiye ot Ls PLAINTIFFS’ COMPLAINT
Sas FRANCISCO28

CaRkOLL, BURDICK &

MeDoxoven LLP
Ategiys st Let
SAN FRaNcisca

TABLE OF AUTHORITIES
Page(s)
Cases
Alfaro v, Community Housing Imp. System & Planning Assn., Inc.
(2009) 171 Cal.App.4th 1356 3
Applied Equipment Corp. v. Litton Saudi Arabia Ltd.
(1994) 7 Cal.4th 503... sreseeeeastesseceeenersiesestanentsnsstscssenestesesitsee Dy 84 9

Berg & Berg Enterprises, LLC y. Sherwood Partner
(2005) 131 Cal. App.4th 802...

Blank v. Kirwan
(1985) 39 Cal.3d 311 asessssssssssesssssnnssnsstnsssnssicsssnpessesasesasensntasssisasissatusareesses?

Cooper v. Equity General Ins.
(1990) 219 Cal. App.3d 1252 Cal.App.3d 741 ..

Goodman vy. Kennedy
(1976) 18 Cal. 3d 335 ..occcccccessseesseeseeenssesssessssesssesseeeesssetsersssnsearacatseesseerssssssessasesssseeesnveceesseee 7

Jones v. Conoco-Phillips,
(2011) 198 Cal App.4th 1187. cccseieecsesssessecessssssccssssssnnnmtsnnteecsssssseeee 9 6

Kaldenbach v. Mutual of Omaha Life ins. Co.

(2009) 178 Cal. App.4th 830 .2,6,7

Kidron v. Movie Acquisition Corp.
(1995) 40 Cal App.4t 157 1 occccccscesccescesssecsseesecsstcssvessesssessscssssesasarsssessarsavessecsserssessarenneenee 7

Koehler v. Pulvers
(S.D.Cal. 1985) 606 F.Supp. 164 visccssssssssssssssesseesecseseesene

Lazar v. Superior Court

Nagy v. Nagy
(1989) 210 Cal.App.3d 1262...

Smail v. Fritz Companies, Inc.
(2003) 30 Cal.4th 167 (citation omitted)... ccc cecessescececeseessessesersssessersectseteseessnvesrenaee 2

Sonnenreich v. Philip Morris Inc.
(S.D.Fla, 1996) 929 F.Supp. 41 6.ccccccstessssecssecscsecssecssnvesesssscenseessseeasecssstsuvesssvesseesasesseee &

Tarmann vy. State Farm Mut. Auto. Ih
(1991) 2 Cal.App.4th 153.

Triplex Comm. v. Riley
(Tex.1995) 900 S.W.2d 716
CBM-PRODUCTS:S¥61 1003-4 di- Case No. CGC-13-276217

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VOLKSWAGEN GROLP OF AMERICA, INC."S DEMURRER TO
PLAINTIFFS’ COMPLAINT28

Cannone, BORBICK &

McDoNOCGH LLP
Aussi Let
SAN FRANCISCO

Statutes

CBM-PRODUCTS:SF61 1008-1

Code of Civil Procedure section {28.7 (b)(3)

TABLE OF AUTHORITIES

“tiie

Page(s)

Case No, CGC-13-276217

PLAINTIFFS’ COMPLAINT

MEMORANDUM OF POINTS AND AUTHORITIES iN SUPPORT OF VOLKSWAGEN GROUP OF AMERICA, INC,’S DEMURRER TOCARROLL, BURBICK &
McDoxovee

Arameys si fae
Saw FRANCISCO

L
INTRODUCTION AND SUMMARY OF ARGUMENT

Defendant Volkswagen Group of America, Inc. (*VWGoA”) seeks an order sustaining its
general and special demurters to the fourth and sixth causes of action for fraud/failure to warn and
conspiracy to defraud/failure to warn, respectively, alleged in the Complaint. The fraud and
conspiracy causes of action consist of conclusory catchphrases against approximately 32
defendants and 400 Doe Defendants, including VWGoA, that defendants misrepresented,
concealed, or conspired to hide information about asbestos allegedly contained in their respective
products.’

Heightened pieading requirements—alleging specific facts against each defendant accused
of fraud or misrepresentation—are required to properly state a fraud claim. The Complaint fails to
allege the date, speaker, manner, or contents of any representations to plaintiff by VWGoA. The
fourth cause of action fails to state a claim for fraud or misrepresentation.

The sixth canse of action for conspiracy is deficient on several grounds. First, there is not
a separate cause of action for civil conspiracy. Second, the complaint fails to allege three elements
against VWGoA that are necessary to hold it liable for a tort committed by another defendant
under a conspiracy theory, Third, a civil conspiracy cannot be predicated upon a negligence
claim. Fourth, the only intentional tort that could give rise to a conspiracy claim—fraud—is not
properly alleged against any defendant with which VWGoaA allegedly conspired.

i.

THE FOURTH CAUSE OF ACTION FOR FRAUD/FAILURE TO WARN FAILS TO
SATISFY THE HEIGHTENED PLEADING REQUIREMENTS TO STATE A CLAIM

“Fraud actions are subject to strict requirements of particularity in pleading.” (Nagy v.
Nagy (1989) 210 Cal.App.3d 1262, 1268.) “[T]he policy of liberal construction of pleadings will

not be invoked to sustain a defective fraud claim." (Cooper v. Equity General Ins, (1990) 219

'VWGoA is contemporaneously filing a motion to strike plaintiffs’ claims for punitive damages and

allegations in the fourth and sixth causes of action that fail to comply with California law for pleading fraud

or conspiracy and/or are improper, irrelevant, or false, in violation of Code of Civil Procedure section 436.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VOLKSWAGEN GROUP OF AMERICA, INC."§ DEMURRER TO
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CARROL. BURDICK &

McDoxovsn LLP
Aenanes iat

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Cal.App.3d 1252, 1262, modified on other grounds, 220 Cal-App.3d 741.) The Supreme Court
has reminded courts and lawyers that “what is needed is some device to separate meritorious and
nonmeritorious cases, if possible in advance of trial. The requirement for specific pleading in
fraud cases serves that purpose.” (Small v. Fritz Companies, Ine. (2003) 30 Cal.4th 167, 184
(citation omitted).)

“The elements of fraud. which give rise to the tort action for deceit, are (1)
misrepresentation (false representation, concealment, or nondisclosure), (2) knowledge of falsity
(or ‘scienter’), (3) intent to defraud (i.e., to induce reliance), (4) justifiable reliance, and (5)
resulting damage.” (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638.) As the California
Supreme Court instructs, these elements of “fraud must be pled specifically; general and
conclusory allegations do not suffice.” (/d. at 645.)

The Complaint also fails to state a cause of action for concealment against VWGoA.
Relevant here, the elements of concealment that must be specifically alleged include, “*(1) the
defendant must have concealed or suppressed a material fact, (2) the defendant must have been
under a duty to disclose the fact to plaintiff, (3) the defendant must have intentionally concealed or
suppressed the fact with intent to defraud plaintiff, [and] (4) the plaintiff must have been unaware
of the fact and would not have acted as he did if he had known of the concealed or suppressed fact
.. 2" (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850 (citation
omitted).) As against VWGoA, any concealment claim fails because the Complaint fails to

adequately allege that VWGoA concealed or suppressed a material fact and also fails to

adequately allege that plaintiff would not have acted as he did if he had known of the concealed or
suppressed fact.

The fourth cause of action alleges that all defendants owed plaintiffs a statutory duty—as
provided for in Civil Code sections 1708 and 1710---and that all defendants “[i]n violation of that
duty [owed to plaintiffs] ... did do the acts and omissions, when a duty to act was imposed, as set
forth herein...” (Compl. 2. at 12:08 — 09.) These Civil Code sections codify common law

actions for fraud and deceit. (Smal? v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 172.)

Accordingly, they are subject to the same heightened pleading standards described below: “In

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VOLKSWAGEN GROUP OF AMERICA, INC,’ DEMURRER TO
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CARROLL, BURDICK &

McDowowcor LLP
Seianty a Lt
San Frasoseo)

California, fraud must be plead specifically; general and conclusory allegations do not suffice.
This particularity requirement necessitates pleading facts which show how, when, where, to
whom, and by what means the representations were tendered .. .” (A/fare v. Community Housing
Imp. System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.)

Pursuant to this particularity requirement. plaintiffs must plead “facts” showing “how,
when, where, to whom and by what means” any alleged misrepresentation by VWGoA was made.
(Lazar v, Superior Court, supra, 12 Cal. 4th at 645.) Moreover, where, as here, allegations of
fraud are made against a corporation, “The requirement of specificity in a fraud action against a
corporation requires the plaintiff to allege the names of the persons who made the allegedly
fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote,
and when it was said or written.” (Tarmann v. State Farm Mut, Auto. Ins. Co. 1991) 2
Cal.App.4th 153, 157.)

Plaintiffs’ fourth cause of action is an example of boilerplate pleading against more than 30
named defendants and 400 fictitious defendants. As to VWGoA, the Compiaint fails to allege the
particulars of any representation by it—or anyone on its behalf—to either plaintiff, whether any
such representation was oral or written, when it was allegedly made, where it was made, and that it
was false.

Instead, the fourth cause of action for fraud consists of repeated legal conclusions.
Plaintiffs generaily allege, in paragraph II at page 12, that all defendants “did do the acts and
omissions, when a duty to act was imposed, as set forth herein, thereby proximately causing injury
to the plaintiff as is more fully set forth herein, Such acts and omissions . . . were suggestions of
fact which were not true and which the defendants did not believe to be true. . . which the
defendants had no reasonable ground for believing it to be true, and the suppression of facts... all
as are more fully set forth herein...” (Compl. € II, at 12:09-15.) Nowhere, however, does the
Complaint allege when, by what means, and through whom VWGoA allegedly made any such
representations.

Paragraph ITI of the Complaint contains additional boilerplate fraud allegations attributed

to all defendants, collectively, in subparagraphs (a) ~ (k), including the following:

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MEMORANDUM OF POINTS AND AUTHORITIES iN SUPPORT OF VOLKSWAGEN GROUP OF AMERICA, INC,’S DEMURRER TO
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Cannoli. Beapick &

MeDoxovcH LL?
an 2b
Say FRanenco:

e “Did not label any of the [unspecified] aforementioned asbestos-containing
materials...” [13:01 — 02];

° “[S]uppressed information relating to the danger of use of the [unspecified]
aforementioned materials . . .” [13:11 ~ 12];

° “{S]old the [unspecified] aforementioned products and materials to plaintiff's
employers ... without advising such employers and others of the dangers of use of
such materials...” [13:18 — 20):

° “(Suppressed from everyone, including plaintiff . . . scientific data and knowledge
of the accurate results of [unspecified] studies . . .* [14:1 —03];

° “[A]ctively promoted the suppression of information of danger to users [via their
support of the Asbestos Textile Institute] of the [unspecified] aforementioned
products and materials . . .” [14:13 - 14];
(Compl. GUI, at 13:01 — 02, 11 ~ 12, 18 — 20; 14:01 - 03, 13 ~ 14.)

Not only does the Complaint fail to allege that VWGoA induced Dr. Lanza to change his
report in 1935 or was a member of the Asbestos Textile Institute between 1942 and 1950, these
allegations are false as to VWGoA because VWGoA did not exist then. (See Exs. A and B to
Request for Judicial Notice.)’ Said allegations clearly violate Code of Civil Procedure section
128.7(b)(3) (“[t]he allegations and other factual contentions [must] have evidentiary support”).
Plaintiffs and their counsel are statutorily required to determine if they have evidentiary grounds to
allege these claims against VWGoA. This clearly did not occur as to VWGoA because a simple
search of the States of California and New Jersey’s business entity websites would have indicated
to plaintiffs that they do not have any basis, now or even after a reasonable opportunity for further
investigation or discovery, for alleging such false facts against VWGoA because VWGoA did not
exist in the 1920s, 1930s, 1940s, or even 1950.

In paragraph IV and its rambling subparagraphs (a ~ k), the Complaint also alleges
knowledge purportedly possessed by all defendants “Since 1924... in 1935... from 1946...
Commencing in 1930... and Between 1942 and 1950...” (/d. at 12:19; 13:06; 14:06; 14:21;

14:23; and 15:01.) But again reference to these time periods as to VWGoA is clearly erroneous

* The Court may properly take judicial notice of such matters when considering a demurrer,
pursuant to Code of Civil Procedure, section 430.70.

CBM-PRODUCTS SFb1} 008-1 -4- Case No. CGC-13-276217

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VOLKSWAGEN GROUP OF AMERICA. INC.’S DEMURRER TO
PLAINTIFFS’ COMPLAINT1 |j since VWGoA did not exist until 1955. (Exs. A and B to Request for Judicial Notice.) The Court
2 || may properly take judicial notice of such matters when considering a demurrer, pursuant to Code
3 |] of Civil Procedure section 430.70. The exhibits to the Request for Judicial Notice also establish
4 |) that these are sham and false allegations as against VWGoA and that plaintiffs’ counsel has failed
5 jj to comply with their duties under Code of Civil Procedure section 128.7 (b)(3).

The Complaint then makes generic reference to plaintiff's “{r]eliance upon the said acts,

OD

suggestions, assertions and forebearances .. .” (Compl. § 5. at 16:21.) Again, these conclusory

8 || aliegations fall perilously short of the particularity requirement to state a claim for fraud. The
phrase, “fa]s is more fully set forth herein,” is used throughout this cause of action, but is rendered
10 || meaningless because plaintiffs never fully set forth any underlying facts. In other words, and

11 || despite plaintiffs’ affirmative representations, nothing is “more fully set forth” anywhere in the

12 |) Complaint.

13 The above-identified general allegations that all defendants concealed or suppressed facts

14 |) are based on events that precede VWGoA’s existence and thus are not relevant to VWGoA,

15 || Specifically, the Complaint alleges as the basis for the concealment of material facts certain events
16 | that occurred in 1924 (Compl., at 12:19), in 1935 (dd. at 14:5-6), in 1946 (/d. at 14:21), in 1930

17 || Gd. at 14:23), and “[bJetween 1942 and 1950 (Ud. at 15:1). Significantly, VWGoA did not exist in
18 || any of these years. Thus, VWGoA could not have participated in any of those alleged events.

19 |] VWGoA first came into existence in 1955. (Exs. A & B to Request for Judicial Notice.) Because

20 | VWGoA did not exist when the events occurred that allegedly serve as the basis for the allegations
21 || that alt defendants concealed facts, the Complaint fails to sufficiently allege concealment or

22 || suppression of material facts by VWGoA. Simply put, VWGoA could not conceal or suppress

23 || something that occurred years before it came into existence.

24 Thus, the case of Jones v, Conoco-Phillips, (2011) 198 Cal.App.4th 1187, does not salvage
25 || plaintiffs’ Complaint as against VWGoA's demurrer or motion to strike. Contrary to the

26 | allegations here, the complaint in Jones supplemented conclusory allegations about defendants‘

27 || prior knowledge about dangers in toxic chemicals “with respect to a single compound, DMF. The

28 || Joneses cite studies published as early as 1969 attesting to DMF’s tonicity, several years before he

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VOLKSWAGEN GROUP OF AMERICA, INC.’S DEMURRER TO
PLAINTIFFS’ COMPLAINT9

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began working at Goodyear where he was exposed to the Dow Product containing DMF.” (Jd. at
1200.) Contrary to what is shown by VWGoA’s Request for Judicial Notice, no defendant in
Jones demonstrated by judicial notice that it did not exist when the studies were done. This
distinction bars plaintiffs’ reliance on Jenes in opposition to VWGoA*s demurrer and motion to
strike the concealment allegations against it.

Plaintiffs’ Complaint fails to state a concealment claim as against all defendants, including
VWGoA, for a reason highlighted by the Jones opinion. Namely, one of the requirements of
pleading a concealment claim in a toxic tort case is alleging the defendants “ ‘alone had
knowledge of the material facts, to wit the toxic properties of their products, which were not
available to (plaintiff].°” (Jones v. Conoco-Phillips, supra, at 1199-1200.) Thus, it is not enough
simply to allege ignorance of the true facts. which plaintiffs circuitously allege at 16:15-16
(“knowing plaintiff did not have such knowledge ...”). Pertinent to the Jones decision, plaintiffs’
Complaint is bereft of any allegation that Mr. Koepke did not have access to information about the

alleged dangerous properties of asbestos in products at any time before or when he allegedly

worked with such products. Significantly, allegations in plaintiffs’ own Complaint preclude
plaintiffs from alleging that he did not have access to such information. For example, the
Complaint alleges that “[dJefendants ... did not label any of the aforementioned asbestos-
containing materials and products as to the hazards of such materials ... until 1964, when certain
of such materials were labeled by some, but not all, of the defendants ....” (Compl. at 13:1-5.)
Yet the Complaint also alleges that Mr. Koepke was first exposed to asbestos in 1971 — at least 7

years after warnings about alleged hazards were first placed on some products, according to

plaintiffs’ Complaint. (/d. at 5:19-24.) The allegation that plaintiff was not exposed to asbestos in

products until 1971, coupled with the allegation that such products first contained asbestos

warnings in 1964, precludes plaintiffs from stating a concealment claim not only against VWWGoA

but also against all defendants.
Plaintiffs’ Complaint is insufficient to state a concealment claim for a third reason. Under
Kaldenbach, the complaint must allege specifically that plaintiff would not have acted as he did if

he had known of the allegedly concealed or suppressed facts. (Kaldenbach v. Mutual of Omaha

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VOLKSWAGEN GROUP OF AMERICA, INC,"S DEMURRER TO.
PLAINTIFFS’ COMPLAINT28

CARROLL, BLRDICK &

MeDoxoran LEP
At
SAN FRANCISCO

jysarbe

Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.) Here. the Complaint alleges only that “plaintiff
would not have continued to work in the said environment” if he had known of the allegedly
suppressed facts. (Compl. at 16:22.) This is a conclusion. Because fraud claims must be plead
with specificity, the Complaint must allege specifically what Mr. Koepke would have done. It
must allege specifically what he would have done to avoid working “in the said environment.
This requirement exists because fraud claims must be plead with specificity and, moreover, this
type of allegation is peculiarly within Mr. Koepke’s knowledge.

VWGoA’'s demurrer to this cause of action should be sustained without leave to amend. In
order to avoid an order sustaining this demurrer without leave to amend, plaintiffs must
demonstrate the manner in which the fourth cause of action can be amended to properly plead
fraud against VWGoA. The California Supreme Court has prescribed that, in determining

“whether there is a reasonable possibility that a defect can be cured by amendment... , [t]he

burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan

(1985) 39 Cal.3d 311, 318.) “Plaintiff must show in what manner he can amend his complaint and
how that amendment will change the legal effect of his pleading.” (Goodman vy. Kennedy (1976)
18 Cal. 3d 335, 349.)

Ti.

PLAINTIFFS’ SIXTH CAUSE OF ACTION - STYLED CONSPIRACY TO
DEFRAUD/FAILURE TO WARN -IS AT BEST, A DEFICIENTLY PLED FRAUD CLAIM
SUBJECT TO THE SAME HEIGHTENED PLEADING STANDARDS
To the extent plaintiffs intend to pursue the sixth cause of action as an independent

conspiracy claim, this is improper. Civil conspiracy is not an independent tort. (Applied
Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510 — 511.) Rather, it is a
“legal doctrine that imposes liability on persons who, although not actually committing a tort
themselves, share with the immediate tortfeasors a common plan or design in its perpetration.”
(Kidron v, Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581 [citations omitted].) In the
absence of a viable cause of action, plaintiffs’ conspiracy allegations fail. (Berg & Berg

Enterprises, LLC v. Sherwood Partners (2005) 131 Cal.App.4th 802, 803.)

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To state a viable claim for civil conspiracy requires that a plaintiff plead and prove three
elements: (1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance
of the conspiracy, and (3) damages arising from the wrongful conduct. (Applied Equipment Corp.
v, Litton Saudi Arabia Lid., supra, 7 CalAth at 510 - 511)

As set forth below, plaintiffs fail to base their purported conspiracy claim on a viable cause
of action and also fail to properly plead the elements of an alleged conspiracy. Both defects are
independently fatal to this claim.

The sixth cause of action incorporates by reference allegations in the first cause of action
for negligence, as well as allegations contained in the fourth (fraud) and fifth (conspiracy as to
Met Life Insurance only) causes of action, respectively. (Compl. @ I, at 31:10-12.) Buta
conspiracy by definition requires intentional agreement to commit or achieve a specific outcome.
Accordingly, parties cannot intentionally agree to fail to exercise due care (i.c., to act negligently).
(Koehler vy. Pulvers (S.D.Cal. 1985) 606 F.Supp. 164, 173 [*This court is unaware of California
decisional law imposing liability for conspiring to commit negligence. The allegation of civil
conspiracy appears inherently inconsistent with the allegations of an underlying act of
negligence]; Sonnenreich v. Philip Morris Inc. (S.D.Fla. 1996) 929 F.Supp. 416, 419 — 420
[because “it is impossible to conspire to act negligently . . . [[ogic and case law dictate that a
conspiracy to commit negligence is a non sequitur” |: Triplex Comm v. Riley (Tex.1995) 900
S.W.2d 716, 719, fin. 2 (“Given the requirement of specific intent, parties cannot engage in a civil
conspiracy to be negligent’].) To the extent plaintiffs rely upon allegations of negligence to
support their conspiracy claim, said reliance is improper. Although plaintiffs “except allegations
pertaining to negligence” in their incorporation of allegations contained in the first cause of action
for negligence, the remaining allegations in that cause of action state no intentional tort or any
other wrong.

The conspiracy claim fails based on incorporation of the fraud claim too. The fourth cause
of action is defectively pled for the above-stated reasons and is therefore not a viable cause of
action. Accordingly, to the extent plaintiffs rely upon the allegations contained in the Fourth

Cause of Action, plaintiffs’ conspiracy claim also fails.

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MeDoxovun LLP

Sas Fraxessco

Further, the sixth cause of action is bereft of any underlying allegations that could support
a conspiracy claim. It references defectively plead causes of action in conclusory terms,
“[D]efendants, and each of them, knowingly and willfully conspired ... and agreed among
themselves to perpetrate upon plaintiff the acts complained of as set forth in the First and Fourth
Causes of Action herein.” (Compl. at 31:14 — 17.) The Complaint also states, “said acts and
forbearances to act were caused by false, fraudulent and malicious motives of defendants ... The
foregoing conduct . .. was done wantonly, willfully, oppressively and in conscious disregard of
the safety of plaintiff...” (/d. at 31:24 27.) There is no allegation concerning the date, method,
location, or participants in an agreement to form and operate the purported conspiracy, nor any
facts concerning the wrongful conduct purportedly perpetuated in furtherance of any conspiracy.
(Applied Equipment Corp., supra, 7 Cal. 4th at 510-511.)

Finally, plaintiffs reliance on their Fifth Cause of Action to support a conspiracy claim is
also misplaced as that cause of action expressly states that it pertains only to defendant
Metropolitan Life Insurance Company and is therefore inapplicable as to VWGoA. (See Compl.
at 17:18 ~ 31:02.)

Accordingly, VWGoA’s demurrer to the sixth cause of action should be sustained without
leave to amend should be stricken.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF VOLKSWAGEN GROUP OF AMERICA, INC.’S DEMURRER TO
PLAINTIFFS’ COMPLAINT1 IV.
2 CONCLUSION
3 The Complaint fails to state causes of action for fraud under a common law or statutory
4 || theory against any defendant, let alone against VWGoA. The conspiracy claim fails for several
5 || reasons, including the failure to allege the specific elements of a conspiracy involving VWGoA
6 |] and proper allegations of an intentional tort committed by one of the alleged co-conspirators. The
7 || demurrers to the fourth and sixth causes of action should be sustained without leave to amend.
8 | Dated: January G, 2014 CARROLL, BYRDICK & MeDONOUGH LLP
9
0 By _)
i ae
Attorneys for Defendant ao
12 Volkswagen Group’of America, Ine.
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PLAINTIFFS’ COMPLAINTCourtesy Copies of Out-of
State Cases CitedWestlaw

929 F Supp. 416, Prod.Liab.Rep. (CCH) P 14,647
{Cite as: 929 F.Supp. 416)

pe
United States District Court,
S.D. Florida.

Beatrice SONNENREICH, Plaintiff,

v.
PHILIP MORRIS INCORPORATED, et al.,
Defendants.

No. 96-0686-CIV-KING.
May 29, 1996.

Smoker brought products liability action
against tobacco manufacturer, claiming to have
suffered injuries as result of smoking cigarettes.
Piaintiff asserted claims for negligence and civil
racy, Defendants moved to dismiss. The
ct Court, James Lawrence King, J. held that:
(i) Cigarette Labeling and Advertising Act
preempted claim that defendants had duty to
employ “nonpromotienal communications” to
inform public of dangers of cigarette smoking, and
(2) plaintiff failed to adequately plead civil
conspiracy under fraud theory.

Motion granted.
West Headnotes
[1] Federal Civil Procedure 170A ©1773

170A Federal Civil Procedure
170AXI Dismissal
17OAX1(B) Involuntary Dismissal
I70AX1(B)3 Pleading, Defects In. in
General
}70AK1773 k. Clear or certain nature
of insufficiency. Most Cited Cases
Motion to dismiss for failure io state claim will
be granted where it is clear that no relief could be
granted under any set of facts that could be proven
consistent with allegations.

[2] Federal Civil Procedure 170A © 1829

Page 2 of 8

Page |

170A Federal Civil Procedure
170AXI Dismissal
I70AX1(B) laveluntary Dismissal
I70AX1(B)S Proceedings
170Ak1827 Determination
170AK1829 k. Construction of
pleadings. Most Cited Cases

Federal Civil Procedure 170A €=2 1835

170A Federal Civil Procedure
170AX1 Dismissal
170AX1(B) Involuntary Dismissal
170AX1(B)5 Proceedings
(704K 1827 Determination
(7GAK1835  k. Matters deemed
admitted: acceptance as true of allegations in
complaint. Most Cited Cases
For purposes of motion to dismiss for failure to
state claim, complaint is construed in light most
favorable to plaintiff, and all facts alleged by
plaintiff are accepted as true.

[3] Federal Civil Procedure 170A €201771

170A Federal Civil Procedure
I7OAXI Dismissal
170AXI1(B) Involuntary Dismissal
I70AXI{B)3 Pleading, Defects ln, in
General
170AKi771 k. In general. Most Cited
Cases
issue on motion to dismiss for failure to state
claim is not whether plaintiff will ultimately
prevail, but whether claimant is entitled to offer
evidence to support claims.

[4] Products Liability 313A €-2263

313A Products Liability
SESALE Particular Products
313Ak263 k. Tobacco products. Mest Cited
Cases
(Formerly 313Ak599

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States 360 C= 18.65

360 States
360] Political Status and Relations
3601(B) Federal Supremacy; Preemption
360K 18.65 k, Product safety; food and
drug laws. Most Cited Cases
Cigarette Labeling and Advertising Act
preempts tort claim premised on state law duties to
warn or provide information relating to smoking
and health after July 1, 1969. Federal Cigarette
Labeling and Advertising Act, § 5(b), IS USCA.
$ 1334(b).

[5] Produets Liability 313A ©2263

313A Products Liability
SI3AII Particular Products,
313AK263 k. Tobacco products. Most Cited
Cases
{Formerly 313Ak59)

States 360 €=718.65

360 States

3601 Political Status and Relations

360i(B) Federal Supremacy; Preemption
360K18.65 k. Product safety: food and

drug laws. Most Cited Cases

Cigarette Labeling and Advertising Act
preempted claim that ~~ defendant —_ cigarette
manufacturers had duty to employ “nonpromotional
communications” to inform public of dangers of
cigarette smoking, such as service messages,
seminars on smoking cessation and harmful
smoking habits, direct mail-outs of — critical
information for former users of product, public
advocacy, and lobbying. Federal Cigarette Labeling
and Advertising Act, § 5(b), 15 U.S.C.A. § 1334(b).

[6] Conspiracy 91 C=o1.1

91 Conspiracy
S11 Civil Liability
9IMA) Acts Constituting Conspiracy and
Liability Therefor
91k} Nature and Elements in General

Page 3 of 8

Page 2

9IKI1.1 k. In general. Most Cited Cases
Claim for civil conspiracy must consist of
conspiracy between two or more parties, doing of
unlawful act or lawful act by unlawful means,
doing of some overt act in pursuance of conspiracy.
and damage to plaintiff as result of acts done under
conspiracy.

[7] Conspiracy 91 Cae 1.1

OF Conspiracy
911 Civil Liability
GUCA) Acts Constituting Conspiracy and
Liability Therefor
SIkI Nature and Elements in General
9IKI.I kK. in general, Most Cited Cases
Essential elements of civil conspiracy claim are
malicious motive and coercion through numbers or
economic influence,

[8] Conspiracy 91 C23

91 Conspiracy
OIL Civil Liability
9IWA) Acts Constituting Conspiracy and
Liability Therefor
91k] Nature and Elements in General
91k3 k. Object. Most Cited Cases
Given requirement of specific intent, parties
cannot engage in civil conspiracy to be negligent.

|9| Conspiracy 91 C018

91 Conspiracy
91} Civil Liability
91ICB) Actions.
9IKI8 k. Pleading. Most Cited Cases

Federal Civil Procedure 170A €=>636

170A Federal Civil Procedure
I7OAVII Pleadings
I7QAVH(A) Pleadings in General
S70AK633 Certainty. Definiteness and
Particularity
V7OAK636 kk. Fraud. mistake and
condition of mind. Most Cited Cases

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Products Liability 313A C=>263

3I3A Products Liability
313AH] Particular Products,
313AK263 k. Tobacco products. Most Cited
Cases
(Formerly 313Ak73)

Products Liability 313A 22315

313A Products Liability
313ATV Actions
Si3ATV(B) Pleading
SI3AK315 k. Representations or
concealment; fraud. Most Cited Cases
(Formerly 313Ak73)

Cigarette smoker's allegations that defendant
cigarette manufacturers suppressed and refused to
publish various research studies revealing that
cigarette smoking was harmful and addicting, and
that defendants affirmatively published false
statements, were insufficient to plead civil
conspiracy claim under fraud theory; although
plaintiff referred to publication sent to over 200,000
physicians claiming that cigarette smoking dangers
were not real, plaintiff failed to allege date of such
publication, form of such publication, and_ its
impact on her individual injuries, Fed.Rules
Civ.Proc.Rule 9(b), 28 U.S.C.A,

“417 Greg M, Gaebe, Gaebe Murphy Mullen &
Antonelli, Coral Gables, Florida, for the Retailer
Defendants.

David L. Ross, Larry D. Silverman, Greenberg
Traurig, Miami, Florida, for Lorillard/LOR.

Amy Furness. R. Benjamine Reid, Popham Haik
Schnobrich & Kaufman, Lid.. Miami, Florida, for
RJ. Reynolds/RIR,

Tracy E. Tomlin, Michael T. Tomlin, Otero Mailin
& Tonilin, P.A., Coral Gabies, Florida, for the
Plaintiffs.

Norman A. Coll, Barry R. Davidson, Coll Davidson
Carter Smith Salter & Barkett, Miami, Florida, for

Page 4 of 8

Page 3

Philip Morris/PMI.

Robert Kk. Burlington, Kevin Kaplan, Aragon
Martin Burlington & Crockett, P.A.. Miami,
Florida, for Brown & Williamson as successor by
merger to The American Tobacco Co/ATC.

Mercer Bud” Clarke, Clarke Silverglate Williams
& Montgomery, P.A., Miami, Florida, for Liggett
Group/LIG.

Brian Joslyn, Boose Casey Ciklin Lubitz Martens
McBane & O'Connell, West Palm Beach, Florida.
for American Tobacco Co/ATC.

Edward A. Moss, Anderson Moss Sherouse &
Petros, Miami, Florida, for Brown & Williamson
Tobacco Corporation/BNW.

ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS
JAMES LAWRENCE KING, District Judge.

THIS CAUSE comes before the Court upon
Defendants’ Motion to Dismiss, filed April 1, 1996,
Afier requesting and receiving an extension of time,
Plaintiff filed a response on April 29, 1996.
Defendants filed a reply on May 7, 1996,

1. Factual Background

Plaintiff has browght this products Hability suit
against four tobaeco manufacturers, claiming to
have suffered injuries as a result of smoking
cigarettes. Her complaint, in two counts, alleges
negligence and civil conspiracy. Defendants have
moved to dismiss pertions of the Complaint on
grounds that the majority of her negligence claims
are preempted by federal law, and that Plaintiff has
failed to state a valid claim for conspiracy under
state law. Specifically, Defendants seek to dismiss
§{ 2.3.1 through 2.3.5, 2.3.9, and 2.3.10 of Count I,
as well as all of Count HI.

HW. Legal Standard
{1][2]|3] A motion to dismiss wilt be granted
where it is clear that no relief could be granted
under any set of facts that could be proven

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consistent with the allegations. “{Djismissal is
justified only when the allegations of the complaint
itself clearly demonstrate that plaintiff does not
have a claim.” 5A Wright & Miller, Federal
Practice and Procedure § 1357; see also Bradherry
v. Pinellas County, 789 F.2d 1513, 1515 (ith
Cir.1986). For the purposes of a motion to dismiss,
the complaint is construed in the *418 light most
favorable to the plaintiff, and all facts alleged by
the plaintiff are accepted as true. Hishon v. King &
Spalding, 467 U.S. 69, 73. 104 S.Ct. 2229,
2232-33, 81 L.Ed.2d 59 (1984). The issue is not
whether the plaintiff will ultimately prevail. bet
“whether the claimant is entitled to offer evidence
to support the claims.” Scherer v. Rhodes, 416 U.S
232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974),

HI. Analysis

A, Negligence

Defendants urge the Court to dismiss those
portions of the Complaini alleging that Defendants
negligently faiied to warn or to adequately warn of
the various il] effects of cigarette smoking. Of
these, Defendants challenge only those claims that
question the adequacy of the information provided
after July 1, 1969, the effective date of the
Cigarette Labeling and Advertising Act, 15 U.S.C.
§§ 1331 ef seg. (Labeling Act”). Defendants do
not challenge PlaintifPs negligence and _ strict
liability claims as they relate to an alleged defect in
Detendants' products. (See Compl. ff 2.3.6-2.3.8.)

{4] The Labeling Act preempts tort claims
premised on state law duties to warn or provide
information relating to smoking and health after
July 1, 1969. Cipollone v. Liggett Group, Inc., 505
US. 304, 524, 112 S.Ct. 2608, 2621-22, 120
L.Ed.2d 407 (1992); 18 U.S.C. § 1334(b). The
Court's Order therefore addresses only Plaintiff's
post-1969 claims, The Labeling Act is familiar to
Americans primarily in its mandate that cigarette
manufacturers include on their packages the
Surgeon General's warning about the adverse health
effects of cigarette smoking.

Page 5 of 8

Page 4

[5] Cipollone confirms that claims related to
the “advertising or promotion” of cigarettes are
preempted by the Labeling Act. Cipollone, 305
US, at 323. 112 S.Ct. at 2621: 15 US. 1334(b),
Plaintiff contends that the tortious activities of
which she complains are not based on cigarette
“advertising and promotion.” She suggests instead
that Defendants could have employed
“nan-promotional communications” to inform the
public of the dangers of cigarette smoking.
{PLLResp. at 7.) These could have included public
service messages, seminars on smoking cessation
and harmful smoking habits. direct mail-outs of
critical information for former users of the product,
public advocacy, and lobbying, (PLResp. at 7, 8-9.)

This Court must make a “straightforward”
inquiry: “whether the legai duty that is the predicate
of the common law damages action constitutes a
“requirement or prohibition based on smoking and
health ... with respect to advertising or
promotion.’ ” Cipollone, S05 U.S. at 523-24, 112
S.Ct. at 2621. This inquiry must be answered in the
affirmative.

Under the Labeling Act, cigarette packages
must contain the following statement: “Warning:
The Surgeon General Has Determined That
Cigarette Smoking is Dangerous to Your Health.”
IS U.S.C. § 1333. Plaintiff suggests that at the
same time Defendants were providing — the
Congressionally-mandated warnings, they were
exposing themselves to state law tort liability by
failing to use “non-promotional communications”
to disseminate material essentially duplicative of
the Surgeon General's warning.

Plaintiff's argument, if accepted by this Court,
would render the Labeling Act meaningless. The
existence of federal regulation of the health
concerns surrounding cigarette smoking necessarily
entails a relinquishment by the states of their
ordinary regulatory power. This Court must be
cautious in exploring the [legislative balance struck
by Congress,

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In reaching its conclusion that the predicate of
Plaintiffs claim constitutes a “requirement or
prohibition” based on smoking's ill effects, this
Court has considered the avenues left open by
Cipollone, The Supreme Court noted that a “state
Jaw duty to disclose material facts through channels
of communication other than advertising and
promotions” would escape the preemptive reach of
the Labeling Act. Cipodfone, $03 U.S. at 506, 112
S.Ct. at 2612. It is instructive that the Supreme
Court gave as an example not a common law duty,
but rather a state law obligation to disclose material
facts about the dangers of smoking to an
administrative*419 agency, Cipollone, 505 U.S. at
528, 112 S.Ct. at 2623-24,

The Cipollone Court also contemplated an
exception for “claims that rely solely on [cigarette
manufacturers'} testing or research practices or
other actions unrelated to advertising or
promotion.” Cipollone, 505 U.S. at 524-25, 112
S.Ct. at 2622, The Court's statement has been
subsequently interpreted by the lower courts,
Defendants rely in part on one such recent case,
which holds that the preemptive effects of the
Labeling Act are broad enough ta encompass “mass
notification” to consumers. Griesenbeck —y.
American Tobacco Co, 897 F.Supp. 815, 823
(D.N.3.1995).

The Griesenbeck Court considered Plaintift's
claim that Defendant cigarette manufacturer had a
duty to warn of the threats of self-immolation in
light of the Labeling Act and of Cipotione. It
concluded that “fa] company’s attempt to notify its
mass market of anything, whether a danger warning
or a marketing effort, is considered ‘advertising or
promotion’ under the general usage of those terms,
and a state cannot impose requirements on such
activites without running afoul of the clear
language of Cipollone. * Griesenbeck, 897 F.Supp.
at 823.

This Court agrees. Any attempt by Defendants
to notify its customers of the dangers of smoking
would employ the same techniques as a@ traditional

Page 6 of 8

Page 5

advertising or promotional campaign, save with the
goal of discouraging smoking. Lobbying, seminars,
and public service announcements are ali
undertaken with the effect of promoting and
fostering a product or an ideology.

Plaintiff attempts to distinguish Griesenbeck on
grounds that it did not involve a heaith claim, but
rather the risk of smoking in bed or while drowsy.
That Court explicitly rejected the argument that the
phrase “health risk.” as used in the Labeling Act,
applies only to internal risks such as cancer. The
implication, of course, is that the Griesenbeck
Court would have reached the same conclusion on
the instant facts. See Griesenbeck, 897 F.Supp. at
$23. Moreover, Plaintiffs argument that
Griesenbeck was decided under the substantive law
of New Jersey is belied by that Court's analysis of
federal preemption law, the Labeling Act, and
Cipollone.

Having reviewed the pleadings as well as the
controlling case law, the Court concludes that
Plaintiffs claim is preempted by the Labeling Act.
Her post-1969 claims, as set forth in (Y 2.3.1
through 2.3.5, 2.3.9, and 2.3.10 of Count 1, should
therefore be dismissed with prejudice.

B. Civil Conspir
f6][7] A claim for civil conspiracy must consist
of the following allegations: 1} a conspiracy
between two or more parties; 2) the doing of an
unlawful act or a lawful act by unlawful means; 3)
the doing of some overt act in pursuance of the
conspiracy; and 4) damage to the plaintiff as a
result of the acts done under the conspiracy.
Florida Fern Growers Ass'n v. Concerned Citiz
of Putnam Count, 616 $0.2d 562,
(Fla.Dist-.CtApp.1993), The essential elements of
such a claim are “a malicious motive and coercion
through numbers or economic influence.” Peoples
Nat'l Bank of Commerce v. First Union Nat'l Bank
of Florida. NA, 667 So.2d 876, 879
(Fla.Dist.Ct App. 1996) (citations omitted).

The Court finds at the outset that Plaintiff has

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properly pled the first, third, and fourth elements of
the Fern Growers test. She has alleged that
Defendants and others participated in a civil
conspiracy (Compl. § 3.1), that Defendants acted in
furtherance of that conspiracy (Compl. § 3.10), and
that she was injured as a result (Compl. 4 4.1).

[8] Less evident is whether the Comptaint
properly alleges that Defendants conspired to
commit an unlawful act or to commit a lawful act
by unlawful means. Defendants emphasize that the
bulk of Plaintiffs Complaint is grounded in
negligence. They reason that because it is
impossible to conspire to act negligently, Plaintiff's
allegation of civil conspiracy fails. The Court
agrees with Defendants only in part. Logic and case
law dictate that a conspiracy to commit negligence
is a non sequitur. E.g., Triplex Coma. v. Riley, 900
S.W.2d 716. 719 n, 2 (Tex.1995) (Given the
requirement of specific intent. parties *420 cannot
engage in a civil conspiracy to be negligent.”):
Holland y. Sanfix Corp, 106 GaApp. 1, 126
S.E.2d 442, 446 (1962).

[9] The Court cannot agree, however, with
Defendants’ contention that the Complaint fails to
set forth an underlying tort on which a conspiracy
claim can be based. Having carefully reviewed
Count I] of the Complaint, the Court concludes that
it meets the low threshold over which the non-
movant must cross. For example. Plaintiff alleges
that elements of the conspiracy included “f{i}he
suppression and refusal to publish of, various and
sundry research studies carried out by coconspirator
[sic] which revealed that cigarette smoking was
harmful and addicting.” (Compl. {| 3.10.8). Other
allegations concern the affirmative publishing of
false statements. These include the claim that
conspirator RJ. Reynolds Tobacco Company
authored a publication entitled “Of Cigarettes and
Science.” which falsely claimed that cigarettes did
not cause heart disease. (Compl. § 3.10.15).

Drawing all inferences in favor of Plaintiff, as
the Court must do in resolving a motion to dismiss,
the Court can glean that Plaintiff may be asserting a

Page 7 of 8

Page 6

claim for fraud. The Court cannot, however, infer
the buik of Plaintiff's claim. If Plaintiff intends to
allege fraud or conspiracy to commit fraud, she
must do so with particularity, as required by the
Federal Rules of Civil Procedure. Ped.R.Civ.P. 9(b)
3 Cooper v. Blue Cross & Blue Shield of FL, lic.,
19 F.3d 562, 568 (1 1th Cir.1994).

Plaintiff states that the purported congpirators’
concealment of their acts precludes her from
pleading all the relevant acts. (Compl. § 3.10.)
Regardless, many of the statements in the
Complaint are vague and would require speculation
on the part of Defendants and the Court. For
example, Plaintiff refers to “[a] publication sent to
over 200,000 physicians in the United States
claiming that cigarette smoking dangers were not
real, when in fact the conspirators knew that such
dangers were real.” (Compl. 9) 3.10.5.) Plaintiff has
failed to ailege the datefs) of such publication, the
form of such publication, and its impact on her
individual injuries.

Plaintiff is “entitled to one chance to amend the
complaint and bring it into compliance” with
Federai Rule of Civil Procedure 9(b). Cooper, 19
F.3d at 569. The second count of her Complaint is
therefore dismissed without prejudice to amend
within twenty days.

IV. Conclusion
Accordingly, after a careful review of the
record, and the Court being otherwise fully advised,
itis

ORDERED and ADJUDGED that Defendants’
Motion to Dismiss be, and the same is hereby,
GRANTED. As to the claims set forth in
Paragraphs 2.3.1, 2.3.2, 2.3.3, 2.3.4, 2.3.5, 2.3.9,
and 2.3.10 of Count I, they are DISMISSED WITH
PREJUDICE to the extent that they directly or by
necessary implication challenge the adequacy of the
information provided by Defendants after July 1,
1969. As to the claims set forth in Count Il, they
are DISMISSED WITHOUT PREJUDICE to
amend by no later than 20 days from the date of this

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Page 7
929 F.Supp. 416, Prod.Liab.Rep. (CCH) P 14,647
(Cite as: 929 F.Supp. 416)
Order.
DONE and ORDERED.
5.D.Fla.,1996.
Sonnenreich v. Philip Morris Inc.

929 F.Supp. 416, Prod.Liab.Rep. (CCH) P 14,647

END OF DOCUMENT

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900 S.W.2d 716, 38 Tex. Sup. Ct. J. 765
(Cite as: 900 S.W.2d 716)

Pe
Supreme Court of Texas
TRIPLEX COMMUNICATIONS, INC, d/b/a Radio
Station KZZB-95 FM, Petitioner,

Vv.
James R. RILEY, Mary Gray, and Deep East Texas
Self Insurance Fund, Respondents,

No. 94-0567.
Argued Jan. 5, 1995.
Decided June 8, 1995
Rehearing Overruled July 21, 1995.

Police officers hurt in accident involving drunk
driving sued nightclub where driver had been
drinking, bartender and radio station promoting
“Tadies night” at bar. The 136th District Court,
Jefferson County, Jack R. King, J., refused to
submit questions regarding radio station's joint
enterprise liabil