Motion-Secondary: CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

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BRYDON
HUGO & PARKER
135 Maw Srkeer
20 FLOOR
San Francisco, CA 94105

John R. Brydon [Bar No. 083365]
George A. Otstott [Bar No. 184671]

Thomas J. Moses [Bar No. 116002]

Jann M. Noddin [Bar No. 196445] ELECTRONICALLY

BRYDON HUGO & PARKER FILED

135 Main Street, 20th Floor Superior Court of California,

San Francisco, CA 94105 County of San Francisco

Telephone: (415) 808-0300

Facsimile: (415) 808-0333 con AN, 14.2010.
BY: ANNIE PASCUAL

Attorneys for Defendant Deputy Clerk

BAYER CROPSCIENCE, INC., successor to
AMCHEM PRODUCTS, INC.

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

CHARLES TOBEY, (ASBESTOS)
Case No, CGC-07-274226
Plaintiff,
vs. MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
ASBESTOS DEFENDANTS (BP) BY DEFENDANT BAYER CROPSCIENCE,
INC., SUCCESSOR TO AMCHEM
Defendants. PRODUCTS, INC., FOR SUMMARY
ADJUDICATION

[Filed with Defendant's Notice of Motion
and Supporting Separate Statement of
Undisputed Material Facts, and Declaration
of Thomas J. Moses]

Date: April 8, 2010
Time: 9:30 a.m.

Dept: 220

Judge: Hon. Harold Kahn

Complaint Filed: June 6, 2007; First
Amended Complaint: December 12, 2008
Trial Date: May 10, 2010

L INTRODUCTION

‘This is a personal injury-asbestos action in which Plaintiff CHARLES TOBEY
(“Plaintiff”) seeks compensatory and punitive damages against various defendants,
including BAYER CROPSCIENCE, INC. successor to AMCHEM PRODUCTS, INC.

(“BAYER”), arising allegedly from exposure to asbestos-containing products. Plaintiff
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
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BRYDON

Huco & PARKER
135 MAIN STREET
20" FLooR
San Francisco, Ca 94105

claims causes of action for Negligence, Strict Liability and False Representation against
BAYER. (See Plaintiff's Complaint, Exhibit A) This summary adjudication motion
addresses only Plaintiff’s claim for punitive damages and his Third Cause of Action for the
intentional tort of False Representation.

From 1958 to 1968, Plaintiff worked as an Insulator and claims to have worked
throughout his career with mastics and fibrous adhesives manufactured by Bayer.
However, Plaintiff was specifically requested, through special discovery, to present
evidence to support his “false representation” cause of action, as well as evidence
supporting his claim for punitive damages. Plaintiff has not offered any admissible
evidence whatsoever to support his causes of action for false representation nor for his
claim for punitive damages. Therefore, this Court should grant this motion for summary
adjudication to Plaintiff's Third cause of action for False Representation and claim for
punitive damages against BAYER.

I. STATEMENT OF FACTS

Plaintiff claims that he was exposed to asbestos-containing mastics and fibrous
adhesives manufactured by BAYER throughout his career as an Insulator. Relevant to the
herein motion, Plaintiff alleges a cause of action for False Representation, and a claim for
punitive damages, in addition to his causes of action for Negligence and Strict Liability

against BAYER. (See Plaintiff's Complaint, Exhibit A)!

it. ARGUMENT

A. SUMMARY ADJUDICATION IS PROPER BECAUSE PLAINTIFF
CANNOT ESTABLISH THE EXISTENCE OF A TRIABLE ISSUE OF
MATERIAL FACT ON EACH OF HIS CAUSES OF ACTION AGAINST
BAYER

1 PLAINTIFF’S CAUSE OF ACTION FOR FALSE REPRESENTATION (THIRD) IS
WITHOUT Merit SINCE PLAINTIFF CANNOT PROVE THAT BAYER MADE
A MISREPRESENTATION TO PLAINTIFF.

| This motion does not address Plaintiff's causes of action for Negligence or Strict Liability.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION For SUMMARY ADJUDICATION
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BRYDON

Huco & PARKER
185 MANN STREET.
20" FLOOR
San Francisco, CA 94105

Plaintiff's cause of action for false representation fails as a matter of law because
there is no evidence of a misrepresentation made by BAYER that Plaintiff relied on to his
detriment, nor intentional conduct on BAYER’s part. [UMF Nos. 1-2).

The tort of “False Representation” requires proof of a misrepresentation of material fact
upon which plaintiff relied, causing damages. (Cf Hauter v. Zogarts (1975) 14 Cal.3d 104, 111
{elements of false representation] with City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith,
Ine. (1998) 80 Cal. App.4th 445, 481 [elements of deceit].) Under Civil Code sections 1709 and
1710, relied upon by Plaintiff herein to support his fraud claim, evidence of “willful deceit”
is necessary; that is, Plaintiff must show that BAYER either made a “suggestion, as a fact, of
that which is not true, by one who [did] not believe it to be true,” or an “assertion, as a fact,
of that which is not true, by one who [had] no reasonable ground for believing it to be
true,” or suppressed a fact “which [is] likely to mislead for want of communication of that
fact,” or, finally, made a promise without intending to perform that promise. (Civ. Code, §
1710.)

Thus, for Plaintiff to prevail with regard to this theory, they must prove actual
reliance on his part on some specific misrepresentation. (Mirkin v. Wasserman (1993) 5 Cal.4
1082, 1088-1089.) Plaintiff's lawsuit generally alleges that he relied on misrepresentations
made by all defendants regarding their asbestos-containing products. However, Plaintiff

has no evidence to prove that he actually relied on any representations regarding such

products.

To prove that any reliance on a misrepresentation resulted in damages, Plaintiff
must prove that he was, first, actually exposed to a product for which BAYER is liable and
then, second, that representations were made to him in some form or fashion regarding that
product, reliance on which caused exposure to the asbestos-containing product, and which
later proved to be untrue. Plaintiff's responses to BAYER’s case-specific interrogatories

regarding the bases for Plaintiffs’ false representation claim show no conduct towards

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
OF DEFENDANT BAYER CROPSCIENCE, INC,ow Se NSN DBD FT PR WO NH

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BRYDON

Huco & PARKER
135 Main Sracer
20" FLCOR
San Trancisco, CA $4105

Plaintiff sufficient enough to support a claim for fraud or false representation. [UMF No.
25.] Accordingly, summary judgment and/or adjudication is appropriate.

Nor can Plaintiff proceed on the theory that BAYER failed to disclose material
information to him about the dangers of asbestos. The elements of a claim for fraudulent
concealment are: (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 the intent to
defraud plaintiff, (4) 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, and (5) as a result of
the concealment or suppression of the fact, plaintiff must have sustained damages. (Lovejoy
v. AT&T Corp. (2001) 92 Cal. App.4th 85, 95, quoting Marketing West, Inc. v. Sanyo Fisher
(USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.) The second element, a duty to disclose,
generally exists only if there is a “special relationship” between the parties. (Shin v. Kong
(2000) 80 Cal. App.4th 498, 509; accord Wilkins v. NBC, Inc. (1999) 71 Cal.App.4th 1066;
Gawara v. United States Brass Corporation (1998) 63 Cal.App.4th 1341; LiMandri v. Judkins
(1997) 52 Cal.App.4th 326, 337; Lingsch v. Savage (1963) 213 Cal App.2d 729, 735.)

Failure to disclose “is not actionable fraud unless there is a fiduciary or confidential
relationship giving rise to a duty to disclose.” (La Jolla Village Homeowner's Assoc. Inc. v.
Superior Court (1989) 212 Cal. App.3d 1131, 1151.) Plaintiff’s Complaint generally alleges
that he relied upon false representations made by BAYER regarding the safety of BAYER’S
products. But, BAYER served Special Interrogatories on Plaintiff regarding this cause of
action, and Special Interrogatory No. 17 requested that Plaintiff state whether or not he had
ever received any communication from BAYER, to which he responded that he had no
information regarding any such communication. [UMF Nos. 1, 2.]

In addition, BAYER requested in its Special Interrogatory, No. 23 that Plaintiff state
all facts to support his false representation cause of action related to BAYER. [UMF No. 3.]
Plaintiff's response to BAYER Special Interrogatory, No. 23 merely referred to his response

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BRYDON

Huco & PARKER
135 MAIN STREET
20™ FLOOR
‘San Francisco, CA 94105

to No. 2, which did not include any facts regarding a misrepresentation, nor include any
facts supporting Plaintiff's cause of action for false representation. [UMF No. 4.]

The same is true for Plaintiff's response to Special Interrogatory, No. 24, which
sought the identification of witnesses, and Special Interrogatory No. 25, which sought the
identification of relevant supporting documents, wherein Plaintiff again merely referred to
earlier responses, which did not include any information relevant to his claim against
BAYER for false representation. [UMF Nos. 5-8.]

Plaintiff's claim of false representation relies on section 402B of the Restatement

Second of Torts, which states:

One engaged in the business of selling chattels who, by advertising, labels, or
otherwise, makes to the public a misrepresentation of a material fact
concerning the character or quality of a chattel sold by him is subject to liability
for physical harm to a consumer of the chattel caused by justifiable reliance upon
the misrepresentation ... . (Emphasis added.)

As there are absolutely no facts stated regarding any misrepresentation made by
BAYER to Plaintiff regarding any of its products, and as Plaintiff has failed to offer any
evidence of any false representation by BAYER or of any intentional conduct by BAYER,
Plaintiff’s Third Cause of Action for False Representation is without merit as a matter of
law. Accordingly, BAYER requests that the court grant summary adjudication as to
Plaintiff’s Third Cause of Action for False Representation.

2. PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES Is WITHOUT MERIT SINCE
PLAINTIFF CANNOT PROVE DEFENDANT ACTED INTENTIONALLY, OR
WITH OPPRESSION, FRAUD OR MALICE

Plaintiff's claim for punitive damages fails for at least two reasons: there is no
evidence of fraud, malice or oppression by BAYER, much less by clear and convincing
evidence, and there is no evidence of corporate ratification or approval of any misconduct
by BAYER. Under Civil Code section 3294(a), Plaintiff can recover punitive damages only
if they proves by “clear and convincing evidence” that BAYER was guilty of “oppression,

fraud or malice.”? Proof by clear and convincing evidence has been defined in other

? "Malice" means either (1) conduct that is intended by the defendant to cause injury to the plaintiff, or (2)
despicable conduct that is carried on by the defendant with a willful and conscious disregard of the rights or
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
OF DEFENDANT BAYER CROPSCIENCE, INC,we ON DR oO PF WN

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BRYDON

HUGO & PARKER,
135 MAIN STREET
20": FLOOR

‘San Francisco, CA 90105 |

contexts as "clear, explicit, and unequivocal” proof, "so clear as to leave no substantial
doubt," and "sufficiently strong to demand the unhesitating assent of every reasonable
mind." (People v. Martin (1970) 2 Cal.3d 822, 833, fn. 14; see Mock v. Michigan Millers Mutual
Ins. Co. (1992) 4 Cal.App.4th 306, 332, In re Marriage of Weaver (1990) 224 Cal.App.3d 478,
487, {. 8.8

While "despicable conduct" is not defined by Section 3294(a), the Judicial Council of
California, in its CACI instructions, has suggested the following definition:

Despicable conduct which so vile, base, or contemptible that it
would be looked down on and despised by reasonable people.
(CACI Nos. 3940, 3947.)

Here, Plaintiff has proffered no evidence that BAYER acted with oppression, malice
or fraud such as to warrant damages for the sake of example, and by way of punishing
BAYER. Plaintiff alleges generally in his Complaint that BAYER acted intentionally and
therefore he should be awarded punitive damages. However, this vaguely alleged claim of
intentional conduct is unsupported by any evidence whatsoever, let alone clear and
convincing evidence, that BAYER acted towards Plaintiff with the requisite degree of
oppression, malice or fraud.

BAYER requested, in its Special Interrogatory No. 19, that Plaintiff state all facts to

safety of others. (Civ. Code § 3294(c)(1).) "Oppression" means despicable conduct that subjects a person to
cruel and unjust hardship in conscious disregard of that person's rights. (Civ. Code § 3294(c)(2).) "Fraud"
means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant
with the intention on the part of the defendant of thereby depriving a person of property or legal rights or
otherwise causing injury. (Civ. Code, § 3294(c)(3).)

3 ‘The addition of this requirement is part of a broader design to require a higher quantum of proof, and to
limit punitive damage awards to those cases in which the defendant's conduct is clearly blameworthy.
(Mock, supra, 4 Cal. App. 4th at pp. 332-333; emphasis added.)

4 "The California Supreme Court has noted that in choosing the phrase "despicable conduct," the Legislature
intended to "impose a new substantive limitation on punitive damage awards." (College Hospital, Inc. 0.
Superior Court (1994) 8 Cal.4th 704, 725.) ln College Hospital, Inc., the California Supreme Court noted that the
adjective "despicable" is a powerful term that refers to circumstances that are "base, vile or contemptible."
(Ibid.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
OF DEFENDANT BAYER CROPSCIENCE, INC.we ON Do BF YW N

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BRYDON

Huco & PARKER
135 MAIN STREET
20" FLOOR
San Franeisco, CA 94105

support his claim for punitive damages related to BAYER. [UMF No. 9.] Plaintiff’s
response merely referred back to his response to No. 2, which did not set forth any specific
facts whatsoever regarding oppression, fraud, or malice, or provide any evidence that
BAYER acted intentionally to harm Plaintiff. [UMF No. 10.]

Plaintiff’s responses to BAYER’s case-specific interrogatories inquiring into the basis
of their claim for punitive damages only re-stated ‘Plaintiff's information in support of his
claims of exposure, and also rely upon various matters outside of the record of this case,
refer to documents that Plaintiff admits he does not possess, and shows no direct conduct
towards Plaintiff sufficient enough to support a claim for punitive damages based upon
such conduct. [See UMF Nos. 9 & 10,] Without any facts to support it, a generic claim for
punitive damages has no merit, and must be summarily adjudicated in BAYER’s favor.

In addition, the lack of any evidence of intentional conduct also establishes a
separate ground for summary adjudication of Plaintiffs punitive damages claim herein.
All of the elements supporting a punitive claim—i.e., oppression, fraud and malice—
incorporate the requirement that the improper conduct of the defendant be “intentional,”
or “willful and conscious,” or with “conscious disregard.” Evidence of any of this kind of
conduct does not exist in this case. In any event, ordinary negligence (i.e., mere
carelessness or simple failure to exercise due care for a plaintiff’s safety does not amount to
“malice” or “oppression” or “fraud,” and thus does not support an award of punitive
damages. (Bell v. Sharp Cabrillo Hosptal (1989) 212 Cal.App.3d 1034, 1044; Flyer’s Body Shop
Profit Sharing Plan v. Ticor Title Insurance Co. (1986) 185 Cal.App.3d 1149, 1155.)

In addition, Plaintiff has failed to satisfy the evidentiary requirements of Civil Code
section 3294(b). In 1980, this section was amended to require as an element of proof for
punitive damages 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.) Plaintiff has not alleged, and do not have any

evidence to show, that managerial agents at BAYER had knowledge of the hazards of

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
OF DEFENDANT BAYER CROPSCIENCE, INC.wo oN DTD oO FF Ob NY

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BRYDON

Huco & PARKER
435Matn STREET
20m FLOOR
San Francisco, CA 94105

asbestos, or were those who exercised “substantial discretionary authority over decisions
that ultimately determined corporate policy.” (Romo v. Ford Motor Corporation (1999) 99
Cal. App.4th 1115, 1140.)

For all of the above reasons, Plaintiff’s punitive damages claims against BAYER

must be summarily adjudicated. (Grieve v. Superior Court (1984) 157 Cal. App.3d 159, 167-
168; Scannall v. County of Riverside (1984) 152 Cal. App.3d 596, 614.)

Iv. CONCLUSION

Discovery in this matter is devoid of any admissible evidence intentional conduct, a
misrepresentation or that punitive damages are warranted. For the reasons set forth above,
Defendant BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC.,

respectfully requests that this Court grant its motion for summary adjudication.

Dated: January 14, 2010 BRYDON HUGO & PARKER

By: /s/ Thomas ]. Moses
John R. Brydon
George A. Otstott
Thomas J. Moses
Jann M. Noddin
Attorneys for Defendant
BAYER CROPSCIENCE, INC. successor to
AMCHEM PRODUCTS, INC.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
Or DEFENDANT BAYER CROPSCIENCE, INC.