Motion-Secondary: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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BRYDON

Huco & PARKER
135 MAIN STREGT

FLOOR
‘San Fransisco, CA 94105

Edward R. Hugo [Bar No. 124839]

ponna si Mau {Bar No. 191119]

iomas J. Moses [Bar No. 116002]

BRYDON HUGO & PARKER ELECTRONICALLY

135 Main Street, 20th Floor FILED

San Francisco, CA 94105 Superior Court of California,

‘Telephone: (415) 808-0300 County of San Francisco

Facsimile: (415) 808-0333 APR 18 2008
GORDON PARK-LI, Clerk

Attorney for Defendant : =e

DANA CORPORATION (now known as eae pepuly Clerk

DANA COMPANIES, LLC)

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

LOUIS CASTAGNA, [ASBESTOS]
Case No, 274230
Plaintiff,
vs. DEFENDANT DANA COMPANIES, LLC’S

MEMORANDUM OF POINTS AND
ASBESTOS DEFENDANTS (B“P), et al., AO ORITIES IN SUPPORT OF MOTION
TO STRIKE

Defendants.

[Filed Concurrently With Notice of Motion
and Motion to Strike; Declaration of Thomas

J. Moses]

Date: May 23, 2008

Time: 9:30 a.m.

Dept.: 302

Judge: Hon. Patrick J. Mahoney

Action Filed: June 6, 2007

L INTRODUCTION
This is a personal injury action brought by Louis Castagna, filed on June 6, 2007.
(A true and correct copy of Plaintiff Louis Castagna’s Complaint For Personal Injury —
Asbestos is attached to the accompanying Declaration of Thomas J. Moses [“Moses
Decl.”| as Exhibit A, and is incorporated herein by reference.) Eighty-eight defendants
were named in the First Amended Complaint (there were many more named in the
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‘DEFENDANT DANA COMPANIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO STRIKE

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‘San Fransisco, CA 94105

original pleading), and 8500 “Doe” defendants were also included.

Plaintiff Louis Castagna worked for many years (1967-1987) as a wiper, fireman,
maintenance mechanic, and steamfitter at various places in California, Arizona, and
Washington. (Exhibit A, at Exhibit A thereto, 5:4-12:9.) It is also alleged that Plaintiff
performed automobile maintenance, including changing the brakes, on at least nine
different vehicles over the years. (Exhibit A, at Exhibit A thereto, 12:13-13:12.)

Dana Companies, LLC is a manufacturer of automobile component parts, and
was not originally named as a party defendant. Other automobile-related defendants
(such as General Motors, Uniroyal, etc.) were named in the original complaint as
defendants (see Exhibit A, at Exhibit B thereto, 15:3-18), and “friction/automotive”
exposures were claimed in the accompanying Preliminary Fact Sheet. (A true and
correct copy of the Preliminary Fact Sheet filed with the original complaint in this action
on, November 29, 2005, is attached to the Moses Decl. as Exhibit B, at 2:16.)

Without prior leave of court, Plaintiff filed an “Amendment to Complaint” on
March 20, 2008, naming Dana as “Doe 7.” (A true and correct copy of this Doe
Amendment is attached to the Moses Decl. as Exhibit C.) On or around March 25, 2008,
Dana was served with a Summons and a copy of the Complaint, confirming its
designation as “Doe 7.” (Summons, Exhibit A, at page 2.) The unauthorized addition of
Dana as a “Doe” defendant is improper, and not done in conformity with the laws of
this state. Thus, the entire Complaint must be stricken with regard to Dana.

In addition, while Plaintiff makes broad, generic allegations of improper conduct
against defendants generally in support of his punitive damages claims in her
Complaint, they have pled no substantive facts to support that claim for punitive
damages against Dana as required under California law. Accordingly, Dana seeks an

order striking all references to Plaintiff's requests for punitive damages against it from

the Complaint.
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DEFENDANT DANA COMPANIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
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A Plaintiff Failed To Obtain Leave Of Court Prior To Filing The Doe
Amendment Naming Dana, So This Complaint Must Be Stricken,

While a party is normally entitled to amend their pleadings once as a matter of
right, this general rule is subject to several exceptions, in which prior leave of court is
required. Relevant to this case, the primary exception to the general rule is where, as
here, a plaintiff seeks to add a party as a Doe defendant. (See Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) {ff 6:611-6:612, p.
6-155; 4 Witkin, California Procedure (4 ed. 1997), Pleadings, sections 450-451, pages
548-550; see also Gutierrez v. Superior Court (1966) 243 Cal.App.2d 710, 723.)

“Doe” defendants are allowed in situations where a plaintiff is ignorant of the
true name of a defendant; a complaint may be filed naming Doe defendants, subject to
later amendment if and when the defendant's true name is discovered. When seeking to
amend a complaint to replace a Doe defendant with an identified entity, Code of Civil
Procedure section 474 provides that once the “true name [of the Doe defendant] is
discovered, the pleading. ..must be amended accordingly...” (Emphasis added.)

Under California Rules of Court, Rule 3.1324(b), a declaration must accompany
any motion to amend, which would specify, among other things, “[w]hy the amendment
is necessary and proper;...[w]hen the facts giving rise to the amended allegations were
discovered; and the reasons why the request for amendment was not made earlier.”
(Cal. Rules of Court, Rule 3.1324(b).) To satisfy a court that the amendment is proper,
the plaintiff must provide evidence that his ignorance of the defendant's true identity
was “real and not feigned.” (Wallis v. Southern Pac. Transp. Co. (1976) 61 Cal.App.3d 782,
786.)

In addition, delay in offering an amendment may result in denial of that right, if
the defendant shows that the plaintiff was dilatory, and that the defendant has suffered
prejudice from the delay. (4 Witkin, California Procedure (4th ed. 1997), Pleadings,
section 451, pages 548-550; Smelizley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 939;
Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 9.) A motion to strike the

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DEFENDANT DANA COMPANIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO STRIKEoO Ne

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pleadings is appropriate where a plaintiffs burden under Code of Civil Procedure
Section 474 has not been satisfied, or when a defendant's prejudice is manifest. (Wallis,
supra, at 785-787.)

Decedent, in his original personal injury action, claimed to have done
maintenance work on at least seven vehicles, and claimed asbestos exposure as a result
of his “friction/automotive” work; these claims were continued in the wrongful death
action. (Exhibit A, at Exhibit A thereto, 12;13-13:12; Exhibit C, at 2:16.) Dana isa
manufacturer of automobile component parts. Plaintiff's counsel cannot, with a straight
face, claim ignorance of Dana and its products, particularly as Dana has been sued by
them in literally hundreds of other cases.

However, in this case, no motion for leave to amend was ever filed, so we will
now never know what facts Plaintiff's counsel “discovered” that they claim now--many
months after the filing of this suit—would support a claim against Dana. Without such a
motion having been filed and granted by this Court, Plaintiff's belated “Doe”
amendment bringing Dana into this case is facially inadequate and defective, and was
improperly filed without leave of Court.

For all of the above reasons, Plaintiff's entire complaint, with regard to Dana,
must be stricken.

B. Plaintiff Has Failed to Set Forth Specific Facts Supporting Their
Punitive Damage Claim.

Besides the general impropriety of Plaintiff's failure to seek leave of court to bring
Dana belatedly into this action, Plaintiff's Complaint is improper, as it asserts a
generalized claim for punitive damages, despite the fact that Plaintiff's has failed to
plead any actual facts to support that request. California Civil Code Section 3294
establishes the guidelines by which punitive damages may be awarded, and provides, in
pertinent part:
(a) | Inanaction for the breach of an obligation not arising

from contract, where the defendant has been guilty of
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DEFENDANT DANA COMPANIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
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BRYDON
Huco & PARKER
13S Maw Smeer
20" FLOOR,

San Franciseu, CA 94105,

oppression, fraud, or malice, express or implied, the plaintiff,
in addition to the actual damages, may recover damages for
the sake of example and by way of punishing the defendant

{c) As used in this section, the following definitions shall
apply:

(1) “Malice” means conduct which is intended by
the defendant to cause injury to the plaintiff or
despicable conduct which is carried on by the
defendant with a willful and conscious disregard of the
rights or safety of others.

(2) “Oppression” means despicable conduct that
subjects a person to cruel and unjust hardship in
conscious disregard of that person’s rights.

G3) = “Fraud” means an intentional
misrepresentation, deceit, or concealment of a material
fact known to defendant with the intention on the part
of the defendant of thereby depriving a person of ~
property or legal rights or otherwise causing injury.

California case law interpreting Civil Code Section 3294 makes it clear that absent
a specific intent on the part of a specific defendant to injure Decedent herein (which has
not been pled here), Plaintiffs must plead and prove “despicable conduct” as an element
of malice. For example, in Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th
306, the trial court in a bad faith insurance case provided the jury with a punitive

damage instruction regarding “malice” which stated:

“Malice’ means conduct which is carried on by the Defendant
with a willful and conscious disregard for the rights of others.
[A defendant] acts with conscious disregard of the rights of
others when it is aware of the probable harmful consequences
of its conduct and willfully and deliberately fails to avoid
those consequences.” (Mock, supra, at 330-331.)

Based on the foregoing instruction, the jury awarded punitive damages to

plaintiff, The carrier appealed, arguing that the instruction was erroneous because it

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DEFENDANT DANA COMPANIES, LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

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BRYDON

Huco & PARKER
135 Mann STREET

San Francisco, CA 94105

failed to include language that the insurance carrier had engaged in “despicable
conduct” carried on with a willful and conscious disregard of the plaintiff's rights. (d.)
‘The appellate court agreed and reversed the punitive damage award, holding that while
the Legislature made no effort to define the term “despicable conduct,” that did not
mean it was “without significant meaning or that the evidentiary burden necessary to
obtain punitive damages is not substantially heavier. Not only must despicable conduct
be established, it must be proved by clear and convincing evidence. In our view, the
Legislature clearly intended, by these changes, to impose a new statutory limitation on
the award of punitive damages.” (Mock, supra, at 331.

In attempting to define “despicable conduct,” the Judicial Council of California, in
its CACT instructions, has suggested that “despicable conduct” be defined as “conduct
which is so vile, base, or contemptible that it would be looked down on. and despised by
reasonable people.” (CACI Nos. 3940, 3947.)

Following Mock, the California Supreme Court has held that the 1987 amendment
to Civil Code section 3294, requiring a showing of “despicable conduct,” represented “a
new substantive limitation on punitive damage awards.” (College Hospital, Inc. 0.
Superior Court (1994) 8 Cal.4th 704, 725.) This limitation is based on the grounds that
allegations of fraud and malice are disfavored, and awarding punitive damages “should
be done with the greatest of caution.” (Gombos v. Ashe (1958) 158 Cal.App.2d 517, 526
(disapproved on other grounds by Taylor v. Superior Court (1979) 24 Cal.3d 890, 900).)
Accordingly, conclusory pleadings of fraud, oppression or malice are not permitted.

For example, in G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, the

court held, at page 29:
When non-deliberate injury is charged, allegations that the
defendant’s conduct was wrongful, willful, wanton, reckless
or unlawful do not support a claim for exemplary damages:
such allegations do not charge malice. When a defendant
must produce evidence in defense of an exemplary damage
claim; fairness demands that he receive adequate notice of the kind
of conduct charged against him. (Emphasis added.)

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DEFENDANT DANA COMPANIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO STRIKEBrypon

HuGO & PARKER
15 Mame STREET

" FLOOR
‘San Francisee, CA 95108

Here, Plaintiff's “check the box” Master Complaint seeks punitive damages, but :
fails to set forth any specific allegations which describe Dana’s conduct in general, or how
it acted with regard to the Decedent in particular. Plaintiff's Complaint merely makes
general, conclusory statements which are relied upon to support the punitive damages
claim, but there is nothing alleged specifically against Dana. There are no facts to show
that Dana, in particular, did any of the things which Plaintiff claims allegedly occurred.
Simply put, there are no facts alleged which particularize Plaintiff's theories of recovery
of punitive damages against Dana, much less give it the “adequate notice of the kind of
conduct charged” against it so that it can prepare its defense.

Even viewed in the best possible light and ignoring the pleading specificity
requirements, Plaintiff's allegations cannot be construed as establishing despicable
conduct because they fail to notify Dana of the kind of conduct that it engaged in that
rises to the level of malice, as mandated by Mock and College Hospital. As the court held
in Taylor v. Superior Court (1979) 24 Cal.3d 890:

In order to justify an award of punitive damages....the
plaintiff must establish that the defendant was aware of the
probable dangerous consequences of his conduct, and that
they willfully and deliberately failed to avoid those
consequences.

Plaintiff has pled no actual facts to demonstrate that Dana, individually and not
just as part of the collective “defendants,” had knowledge of the alleged dangerous
potential of asbestos or any (unnamed) asbestos-containing product. (See Perkins 0.
Superior Court (1981) 117 Cal.App.3d 1, 6.) Plaintiff has failed to properly set forth any
facts to demonstrate that Dana acted “despicably” towards anyone. Accordingly,

Plaintiff's punitive damage claim must be stricken in its entirety.

Cc Plaintiff Has Failed to Allege Facts Identifying the Person(s) Whose
Malicious Conduct Gave Rise to Plaintiffs Injuries.

Finally, Plaintiff has failed to satisfy the requirements of Civil Code section

3294(b). That section requires as an element of proof for punitive damages, and, thus, as

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DEFENDANT DANA COMPANIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
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a pleading requirement to support such a theory, that “the advance knowledge and
conscious disregard, authorization, ratification or act of oppression, fraud, or malice must
be on the part of an officer, director or managing agent. of the corporation.” (Id.) In Romo
v. Ford Motor Corporation (1999) 99 Cal.App.4th 1115, 1140, the court stated that “a
plaintiff may satisfy the ‘managing agent requirement’ of Civil Code § 3294(b) through
evidence showing the information in the possession of the corporation and the structure
of management decision-making to permit an inference that the information in fact
moved tpward to a point where corporate policy was formulated.”

Plaintiff herein does not have any evidence to show that managerial agents at
Dana with knowledge of the hazards of asbestos were those who exercised “substantial
discretionary authority over decisions that ultimately determined corporate policy.”
(Romo, supra, at 1141.) Plaintiff does not plead that Decedent was injured by any
despicable act of an officer, director, or managing agent of Dana. Failure to strike a
damage claim absent these facts is reversible error. (See Scannell v. County of Riverside
(1984) 152 Cal. App.3d 596, 614 [claim for punitive damages must be stricken if Plaintiff
fails to plead that the despicable acts were done with knowledge or at the direction of
one of Defendant’s officers, directors, or managing agents].)

Accordingly, Plaintiffs claims for punitive damages fail pursuant to Civil Code
Section 3294(b), and. should be stricken.
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DEFENDANT DANA COMPANIES, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO STRIKE|} 0. CONCLUSION
2 For each of the several separate and independent reasons discussed above,
3 || Plaintiffs Complaint, or, at a minimum, all of the punitive damages allegations as against
4 || Defendant Dana Companies, LLC, must be stricken.
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6 || Dated: April 18, 2008 BRYDON HUGO & PARKER
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10 Attorneys for Defendant
DANA CORPORATION (now known as
11 DANA COMPANIES, LLC)
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Castagna, Louis
San Francisco County Superior Court Case No, CGC-07-274230

LexisNexis Transaction No, 19473645
PROOF OF SERVICE

lam a resident of the State of California, over the age of 18 years, and nota
party to the within action. My electronic notification address is
gervice@bhplaw.com and my business address is 135 Main Street, 20% Floor, San
Francisco, California 94105, On the date below, I served the following:

DEFENDANT DANA COMPANIES, LLC'S NOTICE OF MOTION AND
MOTION TO STRIKE

DEFENDANT DANA COMPANIES, LLC’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION TO STRIKE

DECLARATION OF THOMAS J. MOSES IN SUPPORT OF DEFENDANT DANA
COMPANIES, LLC’S MOTION TO STRIKE

on the following:

BRAYTON PURCELL LLP (Novato)

222 Rush Landing Road LEXISNEXIS SERVICE LIST
Novato, CA 9494!

Fax: (415) 898-1247

x By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

I declare under penalty of perjury that the above is truefand correct.
Executed on April 18, 2008, at San Francisco, California.

@

c ps NEYMARR

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PROOF OF SERVICE