Motion,Ex Parte: GODOFREDO PIQUE VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                BRAYTONSPURCELL LLP

ATTORNEYS ATLAW
222 RUSH LANDING ROAD

PO BOX 6169

NOVATO, CALIFORNIA 94948-6169

(415) 898-1555

nm

oC D BNI RH RW NH

ALAN R. BRAYTON, ESQ., S.B. #73685
DAVID R. DONADIO, ESQ.), 8.B. #154436

ANNE T. ACUNA, ESQ., 8.B. #245369 ELECTRONICALLY

BRAYTON®PURCELL LLP

Attorneys at Law FILED
222 Rush Landing Road Superior Court of California,
P.O. Box 6169 County of San Francisco

Novato, California 94948-6169 NOV 16 2011

(415) 898-1555
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com eclerk of the Court

Attorneys for Plaintiffs Deputy Cle:

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ROSITA PIQUE, as Wrongful Death Heir, ASBESTOS
and as Successor-in-Interest to No. CGC-08-274659

GODOFREDO PIQUE, Deceased; and
MARLENE SANCHEZ, GREGORY PLAINTIFFS' MEMORANDUM OF

PIQUE, FREDERICK PIQUE, as Legal POINTS AND AUTHORITIES IN
Heirs of GODOFREDO PIQUE, Deceased, OPPOSITION TO DEFENDANT
HONEYWELL INTERNATIONAL, INC.’S
Plaintiffs, MOTION FOR SUMMARY
ADJUDICATION

VS.

DANA COMPANIES, LLC (FKA DANA
CORPORATION); Defendants as
Reflected on Exhibit 1 attached to the
Summary Complaint herein; and DOES

Date: December 1, 2011

Time: 9:30 a.m.

Dept: 503, Hon. Teri L. Jackson
Trial Date: December 12, 2011
Action Filed: May 8, 2008

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HONEYWELL,
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TABLE OF CONTENTS

INTRODUCTION 1c entre tenner eee e nee 1
STATEMENT OF FACTS 20.0... c occ cence ce eect et eee nen ee 2
LEGAL ARGUMENT |. 2.0.02. oon cee ebb eee 6
A. THE SCOPE OF HONEYWELL’S MOTION IS LIMITED TO THE ISSUES

PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS 0000.00 o ccc eee cece eee e nets 6

B. HONEYWELL HAS FAILED TO DEMONSTRATE THAT PLAINTIFFS
LACK EVIDENCE REGARDING PUNITIVE DAMAGES AND HAS, THUS,
FAILED TO SHIFT THE BURDEN OF PRODUCING EVIDENCE TO
PLAINTIFFS oo cee enter eter e eter eee eae 7
C. THE 1966 E.A. MARTIN LETTER HAS BEEN AUTHENTICATED AND IS
ADMISSIBLE EVIDENCE «0.2.0... ence ee eee il
D. PLAINTIFFS HAVE PRESENTED A TRIABLE ISSUES OF MATERIAL
FACT AS TO HONEYWELL’S WILLFUL, MALICIOUS, AND
OUTRAGEOUS CONDUCT FOR THE TRIER OF FACT TO CONSIDER. 12
CONCLUSION 00006 cen een e nent beeen nebo erences 17
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES WH OPPOSITION TO DEFENDANT HONEYWELL
INTERNATIONAL, INC.’S MOTION FOR SUMMARY ADJUDICATIONOo SC BA DH NH RB WN me

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TABLE OF AUTHORITIES (Cont’d.)

CASES -

Aguilar v. Atlantic Richfield Company (2001) 25 Cal. 4th 826, 849 20.0.0... 0.02 7,8
Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App.4th 832, 839 200.2... 12
Bunzel v. Am. Academy of Orthopedic Surgeons (1980) 107 Cal. App.3d 165, 169 2.0.2... 9
Conn. vy. National Can Corp. (1981) 124 Cal.App.3d 630, 638.000.000.006 ‘Lecce eee ee 6
Fleet v. CBS, Inc. (1996) 50 Cal.App.4th 1911, 1916 2.0. e eee 7
Furla v, Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1076-77 2.00... eee eee ee 12
Hawkins v. Wilton (2006) 144 Cal. App.4th 936, 940 0.0... ce cee 8
Hayman y. Block (1986) 176 Cal.App.3d 629, 639 2.0... 060 cece eee cece een eee 9
Herber v. Yaeper (1967) 251 Cal. App.2d 258, 262 60.0.0 e neers 12
Hunter y. Pacific Mechanical Corp. (1995) 37 Cal App.4th 1282, 1288 00.0.0... cece 8
Inter Insurance Exchange v. Velji (1975) 44 Cal App.3d 310, 318 0000. 11
Joslin v. Marin Municipal Water District (1967) 67 Cal.2d 132, 147 ..........00..0005 2B
J.R. Norton Co. v. General Teamsters, Warehousemen & Helpers Union, Local $90 (1989,

Cal.App.6th Dist) 208 Cal. App.3d 430, review denied, cert denied (1989) 493 US 894, 110 S Ct

242, 107 L Ed 2d 193, 1989 US LEXIS 4774 22.0 c cence ee 14
Juge v. County of Sacramento (1993) 12 Cal-App.4th 59, 66 0... cece eee cee cerns eee 6
Kids’ Universe v. In2Labs (2002) 95 Cal. App.4th 870, 880.0000... 000. e cee eee ee eee 12
Lackner v. North (2006) 135 Cal.App.4th 1188 00.00.0000 00000 ccc cece ees eee ee ene 14
North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal. App.4th 22 ........ 7
San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316... 7
Scheiding v. Dinwiddie Construction Co, (1999) 69 Cal.App.4th 64, 71-72, 81 1.0.2... 8,10
Taylor v. Superior Court (1979) 24 Cal.3d 890, 894 600. cece tenes 14
Union Bank v. Super. Ct. (Demetry) (1995) 31 Cal. App.4th 573, 580-81 2.6.6.6... eee 9
Villa v. McFerren (1995) 35 Cal App.4th 733 0.02 nes 8
Y.K.A. Industries, Inc. v. Redevelopment Agency of the City of San Jose (2009) 174

Cal.App.4th 339, 352 000.0 ccc n ccc cee eee ener e ee 13
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HONEYWELL,
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TABLE OF AUTHORITIES (Cont'd.

STATUTES

Califormia Civil Code § 3294{a) vo. eee eet een e tence 13
California Civil Code § 3294(e)1) 00 cece ce cee ree n eens 13
California Civil Code § 3294(0)(3) 0.000000 cece cece cece cc eeueteecseeeee 13
California Code of Civil Procedure § 4376 002... c ccc cece nce eee ee etates 1,6
California Code of Civil Procedure § 437c(b)(1) . 60 eeeceeee eee e nes 7
California Code of Civil Procedure. § 437c(a) ..... 200.00 o cece ene eee 7
California Code of Civil Procedure § 437c(c) 2... eee Lecce rece eenees 7,17
California Code of Civil Procedure § 437c(nX(o) 6... ccc eee eee 13
California Code of Civil Procedure § 437c(0)(2) 62... occ cece eee cece tenet eee 7
California Code of Civil Procedure § 437¢(p)(2) .. 0... ccc e cece eee eee eee 17
California Code of Civil Procedure § 437(0)(2) 2-0. 6-0 ccc cnn 8
California Evidence Code $1220 ©0200... ccc cece : wee. 12
California Evidence Code §1221 2.0.0... cece cence een eens 12
California Evidence Code § 1222 . Pte eee enter ee 12
California Evidence Code § 1230 0.0... ere tere eee nent 12
California Evidence Code § 1271 0.0... 0.20 c cece cece ence ence 12
California Evidence Code $1400 2.0.0... 00 ccc eceeee ete r teen tne 11
Califomia Evidence Code § 1414 00. cece eee teens 12
California Evidence Code § 152] 2.2... ccc cere een eee eee 12
California Evidence Code § 1550(a) .... eee ec cece eect e eee 12
California Rules of Court, Rule 342(d) .. 0... ee eee teeter eee 7
Jefferson, Cal. Evidence Handbook, pp. 535-536 2.22.0... cece eevee eect ee i
OTHER AUTHORITY

Restatement of Torts § 908 2.6.6.6 ect eee tenet eee 13
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I
INTRODUCTION

Defendant HONEY WELL INTERNATIONAL, INC.!’s, Motion for Summary
Adjudication of plaintiffs’ punitive damages claim must be denied. Defendant has not met its
initial burden of proof under C.C.P. § 437¢ because (1) plaintiffs’ discovery responses are not
factually devoid, and (2) defendant failed to present sufficient facts or affirmative evidence
precluding plaintiffs from establishing an element of their claim for punitive damages. In
support of its argument that plaintiffs have no evidence of malice, oppression, or fraud,
defendant makes a cursory argument about admissibility and then concludes without supporting
evidence that the 1966 E.A. Martin letter, cited in plaintiffs’ discovery responses, does not
demonstrate that an officer or agent of BENDIX made the following statement: “If you have
enjoyed a good life while working with asbestos products why not die from it. There’s got to be
some cause.” such that it can be imputed to BENDIX. Without presenting any admissible
evidence to negate an essential element of plaintiffs’ claims for punitive damages, defendant
failed to demonstrate that plaintiffs do not have or cannot reasonably obtain evidence sufficient
for the trier of fact to consider and find that HONEYWELL acted with “malice, oppression, or
fraud.”

As stated in plaintiffs’ discovery responses and which defendant failed to refute with
any evidence, E.A. Martin was the Director of Purchases at BENDIX. E.A. Martin was not just
any employee of BENDIX but someone in an executive role as the Director of Purchasing—
someone who during the course of his regular duties interfaced with other high-level employees
tike Noei Hendry, a high-level sales representative of Canadian Johns Manville Co. Ltd.. Mr.
Martin’s statement above is a reflection of BENDIX’s reckless disregard for the health of safety
of its customers.

Mt

' This defendant was formerly known as AlliedSignal, Inc., successor-in-interest to The Bendix
Corporation (thus, in this opposition, HONEYWELL INTERNATIONAL, INC. is referred to as “defendant,”
“HONEY WELL,” “AlliedSignal,” or “BENDIX”). Successor liability is not at issue.

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Moreover, plaintiffs have ample evidence separate from and in addition to the E.A.
Martin documents showing that BENDIX was well aware of the hazards associated with
asbestos exposure from its products since the 1960s and early 1970s but, nevertheless,
continued to manufacture, distribute, sell and market its asbestos-containing brake products
until the early 1980s. The evidence shows that BENDIX chose not to take immediate and
necessary actions to protect end-users of its asbestos-containing products, such as decedent,
GODOFREDO PIQUE, who worked with BENDIX friction products from the 1960s up to the
1990s. There is clear and convincing evidence demonstrating that BENDIX’s actions and
omissions were driven by costs over consumer safety. It is for the trier of fact, not judge, to
determine whether the facts herein sufficiently establishes that BENDIX’s continuing to sell a
product it knew to be dangerous and not immediately warning its customers or ceasing the sale
of such product constitutes malice, oppression and a conscious and reckless disregard for the

health and safety of the consumers, Thus, HONEY WELL’s motion must be denied.

I.
STATEMENT OF FACTS

Defendant does not dispute that, as stated in plaintiffs’ discovery responses, decedent,
GODOFREDO PIQUE worked with BENDIX brakes at several jobsites from the early 1960s,
throughout the 1970s and 1980s, and even into the 1990s. (Plaintiffs’ Response to
interrogatories, Gorezyca Decl., Exhibit C at p. 2:10-4:11 )

BENDIX admits that it manufactured asbestos-containing friction products well into the
early 1980s. (PSSF No. 45.) Yet, BENDIX has known about the dangers of asbestos since the
1960s and early 1970s. BENDIX acknowledges that its raw asbestos suppliers, including Johns
Manville, its major supplier of raw asbestos fiber from 1944 to 1989, began placing warnings
on its asbestos-containing products in 1969. (PSSF Nos. 1 and 2.)

BENDIX was a member of the Friction Materials Standards Instimite (hereafter “FMSI”)
since its founding shortly after World War II. (PSSF No. 3.) Throughout the years, the FMST

collected information about the hazards of asbestas, which it disseminated it to its members.

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HONEYWELL
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(PSSF No. 10.) BENDIX regularly received information from the FMSL (PSSF No. 6.)
BENDIX representatives attended regularly-scheduled FMSI meetings. (PSSF No. 7.) Among
the issues FMSI members discussed was the dangers of asbestos released during brake work.
(PSSF No. 11.) The FMSI prepared a 10 to 12 page booklet that it distributed to all of its
members sometime in the 1970s concerning the “asbestos problem.” (PSSF No. 29.) The
booklet cautioned that asbestos was hazardous and was favorably received by those in favor of
asbestos regulation. (Id.) Approximately 10,000 copies of this booklet were distributed to its
members and others. (Id.) Mr. Drislane wrote the booklet and assembled the information based
on input from committee members, (Id.)

In an authenticated letter dated November 28, 1972, from FMSI Executive Director,
Edward Drislane, to BENDIX employee, J.H. Kelly, Mr. Drislane advised that drilling, cutting
and grinding brake linings may cause the asbestos concentrations in the atmosphere above the
OSHA standard. (PSSF No. 14.} Mr. Drislane writes that members of the AIA have indicated
that if BENDIX customers drill and/or grind asbestos-containing brakes without proper dust
collectors, they would likely be in violation of OSHA standards. (Id.) The letter states, “It
therefore becomes your responsibility as the supplier of the brake lining to warn the customer of
this possibility.” (Id.) Mr. Kelly was the Sales Manager during the late 1960s and early 1970s
for the BENDIX Friction Materials Division and former plant manager at the BENDIX Plant in
Cleveland, Tennessee. (PSSF No. 8.) Additionally, Mr. Kelly, in his capacity of Sales Manager,
conducted classes to train individuals in proper use of brake equipment manufactured by
BENDIX. (Id.) John (“Jack”) Kelly was a big sales manager, in charge of aftermarket sales at
BENDIX. (PSSF Nos. 15, 16.) From 1963 to 1965, John H. Kelly of BENDIX was vice
president of the FMSI. (PSSF No. 17.) Mr. Kelly of BENIDIX then served as the president of the
FMSI from 1967 to 1969. (PSSF No. 18.) Mr. Drislane wrote the November 28, 1972 letter to
Mr. Kelly because Mr. Kelly, in his executive capacity as being in charge of aftermarket sales at
BENDIX, had asked Mr. Drislane for his input on what BENDIX could do about OSHA
requirements on labeling shipments of asbestos-containing products. (PSSF No. 19.) The
November 28, 1972 letter also notes that BENDIX’s safety director, Mr. Armstrong, who has

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attended several AIA meetings regarding labeling requirements for asbestos-containing
products was already aware of some of the controversy concerning labeling and that a recent
survey indicated that no FMSI members were currently labeling shipments of asbestos-
containing products. (PSSF No. 14.)

Mr. Drislane also conveyed the dangers of asbestos in friction products to other
BENDIX officers. Mr. Drislane wrote to Francis Messier, Assistant Sales Manager of
Aftermarket Sales at BENDIX, dated August 2, 1971, titled “Asbestos Study Committee
(Friction Materials),” Mr. Drislane asked BENDIX to participate in the formation of the
Asbestos Study Committee. (PSSF No. 12.) The letter states that the concern is based in part on
a proposed Illinois regulation that would prohibit the use of asbestos in brake lining after
January 1, 1975, OSHA regulations, and concerns regarding airborne asbestos. (Id.) The letter
further states that Mr. Drislane was aware that BENDIX studied the effects of asbestos in the air
and that some of its plants have people responsible for monitoring asbestos in the factory area.
(id.} At an Asbestos Study Committee meeting in 1972, BENDIX representatives Dr. William
Spurgeon and D.E. Stone were present. (PSSF No. 13.) The meeting covered certain topics
such as the interpretation of OSHA regulations concerning asbestos, labeling practices,
sampling for asbestos fiber counting, and consideration of substitutes materials-for use in brakes
as opposed to asbestos, among other topics. (Id.) The meeting minutes taken by Mr. Drislane
concluded by stating that “[i]t was requested that those individuals responsible for corporate
decisions in the hygiene environment area be listed...” That list included James Armstrong,
BENDIX Safety Director. (Id.) Mr. Drislane discussed the Asbestos Information Association
with Mr. Armstrong at various times. (Id.) Mr. Armstrong, in his capacity as BENDIX safety
supervisor, was a member of the AIA. (Id.)

The Asbestos Study Committee was a subgroup of FMSI members that was created in
1971 in response to OSHA concerns about asbestos. (PSSF No. 25.) The Committee comprised
of six people and met two to three times a year. (Id.} In a letter dated October 10, 1972, titled
“Asbestos Publicity — Dr. Selikoff” and attached articles, including one titled “Wider Link to

Cancer Found in Asbestos Workers”, Mr. Drislane wrote to all the members of the Asbestos

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Study Committee. (PSSF No. 26.) He attached a New York Times article that stated that the
‘wearing away of asbestos brake linings in automobiles and trucks is a significant source of
airborne asbestos. (Id.) The letter also references the lead article concerning the incidence
different forms of cancer to workers exposed to asbestos. (Id.) Finally, the letter indicates that
there will be an article of this type in the Times approximately once per month with Dr. Selikoff
serving as the source of the information. (Id.) Mr. Drislane verified that he sent this letter to the
Committee members. (Id.) In a letter dated August 30, 1972, titled “‘Health Hazards of
Asbestos’, by J.C. Gilson” Mr. Drislane wrote to all the members of the Asbestos Study
Committee and forwarded an article based on the recommendation of LH. Weaver, Chairman of
the Committee summarizing “the entire asbestos health situation as it now stands.” (PSSF No.
27.) Mr. Drislane verified that he did send this letter, along with the article, to the Asbestos
Study Committee members, to Matt Swetonic of the Asbestos Information Association, and to
the British Council. (Id.) In 1977, the FMSI’s Asbestos Study Committee discussed the
possibility of product recalls as a result of banning asbestos in friction materials. (PSSF No. 28.)

Furthermore, various BENDIX interoftice memoranda show that the topic of health
hazards related to asbestos was discussed among BENDIX officers in the mid-1960s. (PSSF
Nos. 40-43.) In September of 1966, BENDLX’s Director of Purchases, E.A. Martin wrote to
Noel Hendry, a high-level asbestos-fiber sales representative of Canadian Johns-Manville: "If
you have enjoyed a good life while working with asbestos products, why not die from it.
There’s got to be some cause.” (PSSF Nos. 31-36.) There is no evidence that BENDIX ever
reprimanded Mr. Martin for making such an outrageous comment about individuals dying from
exposure to asbestos. (PSSF No. 39.)

The FMSI and its members, including, BENDIX, expressed concerns about the increase
in costs associated with labeling their asbestos-containing products and the increase in costs of
materials and manufacturing associated with switching to non-asbestos brake linings. (PSSF
No. 21.) The FMS] and its members discussed how even though the actual cost of labeling
their products pursuant to the requirements OSHA was relatively low, their bigger concern was

scaring off customers from buying their product. (PSSF No. 22.) Selling their asbestos-

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HONEYWELL
INTERNATIONAL, INC.’S MOTION FOR SUMMARY ADJUDICATIONcontaining products in Mexico and Canada where OSHA was not in effect was discussed
among the members. (Id.)

Even though BENDIX eventually began placing warning labels regarding the hazards of
asbestos in its products in 1973, that warning label did not instruct users to wear proper
breathing protection when working with BENDIX’s asbestos-containing products. (PSSF No.
44.) Non-asbestos brakes have existed since the 1960s or even earlier. (PSSF No. 27.)
BENDIX admits that it was making an effort to develop non-asbestos containing brake parts as
a substitute for ashestos-containing brake parts in approximately 1963 or 1964 but it did not
actually begin manufacturing these non-asbestos-containing brakes until approximately 1983

for the 1984 model vehicles. (PSSF No. 45.)

OL
LEGAL ARGUMENT
A. THE SCOPE OF HONEYWELL’S MOTION IS LIMITED TO THE ISSUES

PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS

California Code of Civil Procedure § 437c imposes “on the moving party both a
pleading requirement and a substantive burden in order to prevail on a motion for summary

judgment.” (Juge v. County of Sacramento (1993) 12 Cal_App.4th 59, 66.) “[The initial duty

to define the issues presented by the complaint and to challenge them factually is on the

defendant who seeks a summary judgment.” (Conn. v. National Can Corp, (1981) 124

| Cal-App.3d 630, 638.) This duty requires a defendant seeking summary judgment to set forth in

its moving papers “with specificity (1) the issues tendered by the complaint or answer which are
pertinent to the summary judgment motion and (2) each of the grounds of law upon which the
moving party is relying in asserting that the action has no merit or there is no defense to the
action.” (Juge, 12 Cal-App.4th at 67.)

Specifically, “[tjhe Separate Statement of Undisputed Material Facts in support of a

motion must separately identify each cause of action, claim, issue of duty or affirmative

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10

defense, and each supporting material fact claimed to be without dispute with respect to the
cause of action, claim, issue of duty, or affirmative defense.” (Cal. Rules of Court, Rule 342(d),
emphasis added.) “The due process aspect of the separate statement requirement is self-evident,
to inform the opposing party of the evidence to be disputed to defeat the motion.” (San Diego
Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) “Failure to

comply with this requirement of a separate statement may in the court’s discretion constitute a
sufficient ground for denial of the motion.” (C.C.P. § 437c(b)(1)) “Facts stated elsewhere
[other than in the separate statement] need not be considered by the court.” (Fleet v. CBS, Inc.
(1996) 50 Cal.App.4th 1911, 1916.) Due process further requires the Court to exclude any
evidence which was not timely served in accordance with C.C.P. § 437c(a). (San Diego
Watercrafis, Inc., 102 Cal.App.4th at 316.) “Thus, when the ‘fact’ is not mentioned in the
separate statement, it is irrelevant that such fact might be buried in the mound of paperwork

filed with the court, because the statutory purposes are not furthered by unhighlighted facts.”

North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22.

Here, the only issue raised in HONEY WELL’s Separate Statement is whether plaintiffs
have sufficient evidence to support a prima facie showing that punitive damages are warranted
against HONEYWELL. There are no other issues before the Court to decide.

B. HONEYWELL HAS FAILED TO DEMONSTRATE THAT PLAINTIFFS

LACK EVIDENCE REGARDING PUNITIVE DAMAGES AND HAS, THUS,

FAILED TO SHIFT THE BURDEN OF PRODUCING EVIDENCE TO
PLAINTIFFS

For a motion for summary judgment/adjudication to be granted in California, the
moving party must show that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. C.C.P. § 437c(c). The initial burden lies with
the moving party, and only after the burden has been shifted is the responding party required to
make a showing that there is a triable issue of material fact. “A defendant bears the burden of
persuasion that ‘one or more elements of” the ‘cause of action’ in question ‘cannot be
established,’ or that ‘there is a complete defense’ thereto.” (Aguilar v. Atlantic Richfield

Company (2001) 25 Cal.4th 826, 849, quoting C.C.P. § 437c(0)(2).) Specifically, Aguilar ends

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any notion that defendants may somehow obtain summary judgment simply by asserting,
without proof, that plaintiff has no evidence to support his cause of action. "Language in
certain decisions purportedly allowing a defendant moving for summary judgment simply to
‘point[]’ out, through argument, ‘an absence of evidence to support’ an element of the

plaintiff's cause of action (e.g., Hunter v. Pacific Mechanical Corp. (1995) 37 Cal. App.4th

1282, 1288, italics in original) does not reflect summary judgment law as it has ever stood, and
is accordingly disapproved." (Id., fn 23.)

in order to shift the burden, the defendant cannot simply assert lack of evidence. Rather,
the defendant must produce evidence that one or more elements of plaintiff's causes of action
“cannot be established.” (C.C.P. § 437 (0)(2); Scheiding v. Dinwiddie Construction Co. (1999)
69 Cal.App.4th 64, 71-72; Villa v. McFerren (1995) 35 Cal.App.4th 733.) Here, defendant

HONEYWELL must satisfy its burden of production that plaintiffs do not possess and cannot
reasonably obtain evidence to prove their prima facie case for punitive damages to invoke the
factually devoid prong of Aguilar.

If the moving party can make a prima facie showing of the nonexistence of any triable
issue of material fact, the opposing party is then “subjected to a burden of production of his own
to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar at
850.) The corollary to this is that if the defendant cannot establish that the plaintiffs cannot
prove their case, the motion must be denied before plaintiffs’ evidence of material facts even
needs to be considered, “Where the evidence submitted by a moving defendant does not
support judgment in his favor, the court must deny the motion without looking at the opposing
evidence, if any, submitted by the plaintiff. (Internal citation omitted.)” (Hawkins v. Wilton
(2006) 144 Cal. App.4th 936, 940.)

Here, HONEYWELL failed to meet its burden of showing plaintiffs’ punitive damages
claims have no merit. Specifically, defendant has failed to demonstrate plaintiffs have no
evidence that HONEYWELL, a/k/a AlliedSignal, Inc., successor-in-interest to The Bendix
Corp., acted with malice, and in conscious or reckless disregard and indifference to the safety,

health, and rights of consumers and end-users of its products like Mr. PIQUE. Defendant

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PLAINTIFFS! MEMORANOUM OP POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HONEYWELL
INTERNATIONAL, INC.’S MOTION FOR SUMMARY ADJUDICATIONoD HM YAH FY

presented no evidence whatsoever that E.A. Martin’s statement was not authorized or ratified by
BENDIX and/or it did not reflect the malicious and reprehensible attitude and conduct of
defendant. Defendant simply has presented no evidence that Mr Martin was not and officer,
director or someone who was in the position to speak and make key decisions on behalf of
BENDIX. If HONEYWELL is relying upon the argument that plaintiffs cannot establish an
essential element of their punitive damages claim, it must produce evidence to establish
plaintiffs’ inability. It is not enough for defendant to merely point out that plaintiffs do not
possess or cannot obtain the necessary evidence but rather must present evidence to establish
this fact.

A motion for summary judgment/adjudication is a drastic measure which deprives the
losing party of a trial on the merits, and should, therefore, be used only with caution. (Bunzel v.
Am. Academy of Orthopedic Surgeons (1980) 107 Cal.App.3d 165, 169.) Because of the
drastic nature of summary judgment procedure, any doubts as to whether summary judgment is
proper must be resolved against the moving party. (Hayman v, Block (1986) 176 Cal. App.3d
629, 639.)

A defendant moving for summary judgment may rely on a nonmoving party’s factually
devoid written discovery responses to shift the burden of proof to the nonmoving party. (Union
Bank v. Super. Ct, (Demetry) (1995) 31 Cal App 4th 573, 580-81.) Here, however, defendant
cannot successfully argue that plaintiffs’ discovery responses as to their punitive damages
claims are factually devoid. Plaintiffs’s discovery responses provided very detailed facts that
are presently not controverted with any admissible evidence:

HONEY WELL INTERNATIONAL INC. fka AlliedSignal,Inc., Successor-in-_
thatthe ollowing Bendix roduc wore asbestoscontgring, Be Blocks’ "Benain’

1948 to 1985; Brake Linings: "Bendix" 1939 to 1985, "Marshall" 1939 to 1985, “Bulls-

eye" 1939 to 1948, “SL” 1939 to 1971, "WM" 1939 to 1971, “Eclipse” 1939 to 1985,

"Master" 1945 to 1985, "EDF" 1946 to 1985, "FK” 1955 to 1985; "Friction King" 1960

to 1985; Dise brake pads: "Bendix" 1963 to 1985, "Friction King II" 1979 to 1985

(asbestos-free wearing surface); Clutch facings: "Bendix" 1975 to 1978 (sold only to
the Chicago, Illinois plant of Borg and Beck).

Plaintiff identifies an authenticated letter from Bendix Director of
Purchases Ernest A. Martin to Noel Hendry of Canadian Johns Manville Co. Ltd

KNinjvros 109505ipldiopp-HONEYW wd 9 ATA
PLAINTIFFS‘ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEPENDANT HONEYWELL
INTERNATIONAL, INC,’S MOTION FOR SUMMARY ADJUDICATIONdated September 12, 1966. In the letter, Mr. Martin references an article that
appeared in Chemical Week Magazine concerning the health hazards associated
with asbestos. Mr. Martin further states that his answer to the “problem” of
asbestos hazards is: “If you have enjoyed a good life while working with
asbestos roducts why not die from it. There’s got to be some cause.”
Plaintiff also identifies the deposition testimony of HONEYWELL
INTERNATIONAL, INC. Person Most Knowledgeable and/or Custodian of
Records Eugene L, Rogers, and all exhibits attached thereto, in the matter
Fassler v. Fibreboard Corporation, et al., in the District Court of Travis County,
Texas, 261st Judicial District, Cause No. 92-01061, before CSR Amanda J.
beigh. Plaintiff believes defendant is in possession of these documents.
Defendant admits in its G.O. 129 Responses that it did not place warnings
regarding asbestos on its products until the 1970s. By withholding this
information about the hazards of asbestos from the end users of its product,
defendant’s reprehensible conduct amounts to malice, oppression, and fraud as
defendant was aware of the probable consequences of its acts and willfully and
deliberately failed to avoid those consequences. (Plaintiffs’ Response to
Interrogatories, Gorezyca Decl., Exhibit C at p. 7:11-20.)

“No California case has concluded that a moving party for summary judgment can
simply argue there is an absence of facts to support the opposing party’s case.” (Scheiding v.
Dinwiddie Construction Co. (1999) 69 Cal App.4th 64, 81.) A defendant who cannot negate an
element of the plaintiff's case is required to produce direct or circumstantial evidence that the
plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case.” (Id.
at 83.) Here, defendant does not deny that E.A. Martin made the above statement to Mr.
Hendry. Nevertheless, defendant has not presented any affirmative evidence that Mr. Martin,
Director of Purchases for the Friction Materials Division of the Bendix Corporation, was acting
in a personal capacity, not acting on behalf of his employer, when he made the above statement
to an asbestos fiber salesman- the type of individual he regularly interacted with as part of his
duties. Defendant also has not set forth any affirmative evidence that the Bendix
Corporation/Allied-Signal ever reprimanded Mr. Martin for making such an outrageous
comment about individuals dying from exposure to asbestos.

Defendant HONEY WELL failed to produce any evidence allowing an inference that
plaintiffs do not possess, or cannot reasonably obtain, any evidence to support their punitive
damages claims. Defendant HONEYWELL simply does not support its motion with evidence
that plaintiffs failed to provide meaningful responses to interrogatories. Since defendant failed

to shift its burden, plaintiffs respectfully request the Court to deny HONEYWELL’s Motion for

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PLAINT! MEMORANDUM CF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HONEYWELL
INTERNATIONAL, INC.’S MOTION FOR SUMMARY ADIUBICATION +co Pm YN DH BW Ne

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Summary Adjudication as it is unnecessary for the Court to even consider whether triable issues

of material fact exist.

Cc. THE 1966 E.A. MARTIN LETTER HAS BEEN AUTHENTICATED AND IS
ADMISSIBLE EVIDENCE

Section 1400 of the California Evidence Code provides that “[ajuthentication of a
writing means (a) the introduction of evidence sufficient to sustain a finding that it is the
writing that the proponent of evidence claims it is or (b) the establishment of such facts by any
other means provided by law. Authentication requires only that a party establish as a
preliminary fact the genuineness and authenticity of the writing. (Inter Insurance Exchange y,
Velji (1975) 44 Cal. App.3d 310, 318 [118 Cal. Rptr. 596, 601].) It can be established by any
one of the variety of means and requires proof only of "the preliminary fact of ‘authenticity' of a
writing" under the California Evidence Code. Jefferson, Cal. Evidence Handbook, pp. 535-536.

The trial judge determines only the sufficiency of the evidence to
make a writing admissible in evidence as an authentic writing of
the maker. Authentication of a writing for admissibility purposes
does not require that the judge be convinced or satisfied that the
writing is authentic. (Jefferson, supra, at p. 536.)

Here, Eugene L. Rogers, whose consulting agreement with AlliedSignal, Inc. involves
research and defending against asbestos claims testified in deposition that he has access to
AlliedSignal’s old records from Bendix Friction Materials Division, which was headquartered.
in Troy, New York. Prior to his consulting role, Mr. Rogers worked for Bendix/Allied-Signal
at the Troy facility. At the Troy facility, Mr. Rogers worked personally knew the author of the
letter at issue, E.A Martin, Director of Purchases for the Friction Materials Division of the
Bendix Corporation. According to Mr. Rogers, E. A. Martin regularly interacted with asbestas-
fiber salesmen as part of his duties as a purchasing agent and that Noel “N.W.” Hendry was a
high-level sales representative of Canadian Johns-Manville’s asbestos-fiber division.

The “1966 E.A. Martin letter” at issue was found by Mr. Rogers in a file entitled,
“Asbestos:Johns Manville.” That file was maintained by E.A. Martin in his job in the
purchasing department with the Friction Materials Division of the Bendix Corporation in Troy,

New York. Even though only a copy of the original letter was found in Mr. Martin’s own files,

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES §N OPPOSITION TO DEFENDANT HONEY WELL,
INTERNATIONAL, INC.’S MOTION FOR SUMMARY ADJUDICATIONCOD me I KA RB we Bw

Mr. Rogers testified that he has no reason to believe that the copy is any different from the
original.

These facts demonstrate that the 1966 E.A Martin letter, a copy of that which was
attached to the deposition record as Exhibit BX 3 and attached herein as Exhibit C to the
Declaration of Anne T. Acufia, is authentic and admissible under Evid. Code §§ 1414, 1521,
1550(a). More importantly, defendant cannot successfully argue that the 1966 E.A. Martin
leiter is unauthenticated when in its moving papers, defendant relies on articles, letters,
and documents found in the very same file. Moreover, although the content of that letter is
hearsay, it is nevertheless admissible under the exceptions to hearsay under Evid. Code § 1220
(party admission); § 1221 (party adoption); § 1222 (authorized statement); § 1230 (declaration
against interest); § 1271 (business record).

D. PLAINTIFFS HAVE PRESENTED A TRIABLE ISSUES OF MATERIAL

FACT AS TO HONEY WELL’S. WILLFUL, MALICIOUS, AND
OUTRAGEOUS CONDUCT FOR THE TRIER OF FACT TO CONSIDER.

A motion for summary judgment is not an opening te judge the case on the merits. If
defendant shifts the burden and plaintiff then shows that he has or can reasonably obtain
admissible evidence, he has met the burden necessary to deny summary judgment. “The
function of the trial court in ruling on a motion for summary judgment is merely to determine
whether such issues of fact exist, not to decide the merits of the issues themselves.” (Furla v.
Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1076-77.) Doubts about the credibility of the
evidence go to its weight, not to its admissibility, and therefore do not suffice as a reason to
grant summary judgment. The court’s “primary function [in evaluating a summary judgment
motion] is to identify issues rather than to determine [them]. [Citation.] . . . If the evidence is in
conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75
Cal.App.4th 832, 839.) “There is to be no weighing of the evidence.” (Kids’ Universe v.
In2Labs (2002) 95 Cal. App.4th 870, 880.)

Granting a motion for summary judgment denies plaintiff of a trial on the merits, and

therefore must not be done lightly. “The procedure is drastic and should be used with caution in

order that it not become a substitute for existing methods in the determination of issues of fact.

Anju 09505ipld\opp-HONEYW.wed 12 ATA
PLAINTIFES' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HONEYWELL
INTERNATIONAL, INC.’S MOTION FOR SUMMARY ADJUDICATIONDP Oo BM DA BR EF RB NY

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(Citation.)” (Y.K.A. Industries. Inc. v. Redevelopment Agency of the City of San Jose (2009)

174 Cal_App.4th 339, 352.) The motion must not be granted unless the evidence brought forth
by the moving party establishes that there is no triable issue of material fact to be decided and
that the moving party is entitled to judgment as a matter of law. (C.C.P. § 437c(n)(o).) Absent
this narrow finding, summary judgment is not warranted. ,

“The aim of the [summary judgment] procedure is to discover, through the media of
affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.”
(Joslin v. Marin Municipal Water District (1967) 67 Cal.2d 132, 147.) “In examining the
sufficiency of affidavits filed in connection with th motion, the affidavits of the moving party

are strictly construed and those of his opponent liberally construed, and doubts as to the
propriety of granting the motion should be resolved in favor of the party opposing the
motion. (id., emphasis added.) Additionally, the facts alleged in the affidavits of the party
opposing the motion must be accepted as true.” (Herber v. Yaeger (1967) 251 Cal.App.2d
258, 262, emphasis added.)

The Court cannot conclude that, as a matter of law, based upon the evidence before it,
triable issues of material fact do not exist. Since this action includes survival claims of
decedent's products liability action, plaintiffs’ punitive damages claims are proper. California
Civil Code § 3294(a) states that, where “defendant has been guilty of oppression, fraud, or
malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of
example and by way of punishing the defendant.” Fraud is defined as “an intentional
misrepresentation, deceit or concealment of a material fact known to the defendant . . . causing
injury.” See Cal.Civ. Code § 3294(c)(3). California Civil Code § 3294(c)(1) goes on to define
malice as “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.” (Emphasis added.) Further, California Civil Code §
3294(c)(1) defines oppression as “despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person’s rights. The Restatement of Torts § 908

provides:

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PLAINTIFES' MEMORANDUM OF POINTS AND AUTHORITIES FN OPPOSITION TO DEFENDANT HONEYWELL
INTERNATIONAL, INC."S MOTION FOR SUMMARY ADJUDICATIONoD eB UN DH RF WN

Q) Punitive damages are damages, other than compensatory or nominal
amages, awarded against a person to punish him for his outrageous conduct and
to deter him and others like him from similar conduct in the future.
(2) Punitive damages may be awarded for conduct that is outrageous, because of
the defendant's evil motive or his reckless indifference to the rights of others. In
assessing punitive damages, the trier of fact can properly consider the character
of the defendant's act, the nature and extent of the harm'to the plaintiff that the
defendant caused or intended to cause and the wealth of the defendant.
Evidence establishing conscious disregard of another's rights is evidence indicating that the
defendant was aware of the probable consequences of his or her acts and willfully and
deliberately failed to avoid those consequences. (J_R. Norton Co, v. General Teamsters,
Warehousemen & Helpers Union, Local 890 (1989, Cal.App.6th Dist) 208 Cal.App.3d 430,
review denied, cert denied (1989) 493 US 894, 110 S Ct 242, 107 L Ed 2d 193, 1989 US
LEXIS 4774. As J. R. Norton Co. makes clear, plaintiffs are not required to demonstrate

evidence of “an affirmative act,” but plaintiffs must show that defendant failed to act or “avoid

consequences” while defendant was “aware of the probable consequences.”

A key factor in this case-by-case analysis is the defendant’s knowledge or awareness of
the harm its conduct is causing. In Lackner v. North (2006) 135 Cal.App.4th 1188, the
defendant collided with plaintiffs while snow-boarding through a rest area at a high speed;

however, his conduct was found to be reckless, but not “despicable,” and therefore there was no

“malice” sufficient to impose punitive damages. Nevertheless, the court in Lackner did suggest
that reckless, yet unintentional, conduct could arise to the level of malice under the current
standard. Lackner, supra, at 1212, The Lackner court referred to Taylor v. Superior Court
(1979) 24 Cal.3d 890, 894, where the defendant injured plaintiffs while driving under the

influence. Although despicable conduct was not required when Taylor was decided, the Court
of Appeals in Lackner suggested it would have been satisfied had it been required. The
defendant in Taylor had been an alecholic for a substantial period of time, was well aware of
the serious nature of his alcoholism, had been convicted numerous times of driving under the
influence, and had previously caused an automobile accident while driving under the influence.
Therefore, the defendant in Taylor had the awareness or knowledge necessary to meet the

current requirement of malice.

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HONEYWELL
INTERNATIONAL, INC,’S MOTION FOR SUMMARY ADJUDICATIONoO Bt Dw RB YO He

It is impossible to read the facts submitted herewith as anything other than solid and
definitive proof that BENDIX was well aware of the hazards associated with asbestos exposure
since the 1960s from information obtained from sources. In addition to and independent from
the E.A. Martin documents, plaintiffs have presented ample evidence demonstrating
HONEY WELL’s reprehensible conduct. Edward Drislane, Executive Director of the Friction
Materials Standards Institute, who collected information about the hazards of asbestos
disseminated such information to its members, including BENDIX. The dangers of asbestos
released during brake work was discussed among FMSI members since the early 1970s. In an
authenticated letter dated November 28, 1972, from Mr. Drislane to BENDIX employee, J.H.
Kelly, Mr. Drislane advised that drilling, cutting and grinding brake linings may cause the
asbestos concentrations in the atmosphere above the OSHA standard. Mr. Drislane writes that
members of the AIA have indicated that if BENDIX customers drill and/or grind asbestos-
containing brakes without proper dust collectors, they would likely be in violation of OSHA
standards. The letter states, “It therefore becomes your responsibility as the supplier of the
brake lining to warn the customer of this possibility.” The November 28, 1972 letter also notes
that BENDIX’s safety director, Mr. Armstrong, who has attended several ALA meetings
regarding labeling requirements for asbestos-containing products was already aware of some of
the controversy concerning labeling and that a recent survey indicated that no FMSI members
were currently labeling shipments of asbestos-containing products.

John “Jack” H. Kelly was a big sales manager at BENDIX, in charge of aftermarket
sales at BENDIX. As Sales Manager during the late 1960s and early 1970s for the BENDIX
Friction Materials Division and former plant manager at the BENDIX Plant in Cleveland,
Tennessee, Mr. Kelly, in his capacity of Sales Manager, conducted classes to train individuals in
proper use of brake equipment manufactured by BENDIX. From 1963 to 1965, John H. Kelly
of BENDIX was vice president of the FMSI. Mr. Kelly of BENDIX then served as the
president of the FMSI from 1967 to 1969.

In the early 1970s, Mr. Drislane also provided various high-level employees of BENDIX

information about the dangers of asbestos in its products, including Francis Messier, Assistant

KSbret09505ipidtopp-BONEYW vind is ATA
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT TONEY WELL.
INTERNATIONAI,, INC.’§ MOTION FOR SUMMARY ADJUDICATIONOo Om NN

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Sales Manager of Aftermarket and James Armstrong, BENDIX Safety Director. There is also
evidence that Mr. Drislane conveyed a wealth of information about the hazards of asbestos in
friction products to its members, including BENDIX which was an active and very involved
member of the FMSI. :

Despite its knowledge about the dangers of asbestos in its products, BENDIX continued
to manufacture, distribute, sell and market its asbestos-containing brake products until the
1980s. Knowing that breathing asbestos dust was dangerous and knowing that brake work
involved various dust-generating activities, BENDIX never placed a safety label on its asbestos-
containing products that recommended or instructed end-users to wear breathing protection
while working with their product. The warning labels that defendant claims it eventually put on
its asbestos-products in 1973, in response to government regulations, were wholly inadequate as
they did not tell users to wear proper respiratory protection. There is also substantial evidence
presented herein that BENDIX’s concerns with the costs associated with manufacturing, selling
and marketing a non-asbestos alternative influenced their ultimate decision to continue making
and selling asbestos-containing products and for a while, without safety warnings, whatsoever.

In weighing the various evidence plaintiffs have submitted herewith, Mr. Martin’s
statement, “If you have enjoyed a good life while working with asbestos products why not
die from it. There’s got to be some cause.” is, perhaps, an accurate reflection of BENDIX’s
attitude towards the end-users of its asbestos-containing products. Even if this Court finds that
Mr. Martin’s statements are not imputable to BENDIX because he is not an agent or officer of
BENDIX, at the very least, the E.A. Martin documents are admissible to show that the dangers
of asbestos were known and being discussed among BENDIX employees since the mid-1960s.
The E.A. Martin documents are admissible because they have been authenticated by Eugene L.
Rogers, who worked with and personally knew Mr. Martin. Mr. Rogers verified that the E.A.
Martin documents at issue were copies of the ones he saw in Mr. Martin’s files where similar
documents were kept.

There is sufficient evidence presented herein such that a trier of fact can find that

BENDIX behaved as though it had no responsibility for the known, demonstrated consequences

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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT HONEY WELL
INTERNATIONAL, INC.'S MOTION FOR SUMMARY ADJUDICATIONSo Oe YD A BR WH De

12

of its actions; it acted with conscious disregard for the rights and safety of individuals like Mr.
PIQUE and, perhaps, many others like him. Such conduct was then, and remains now,
abhorrent, despicable, and worthy of punitive damages. Thus, there are issues of material fact
for a jury to consider as to whether BENDIX’: actions and omissions, as established by the
evidence presented herewith, are sufficient to warrant an award of punitive damages against
HONEYWELL. Thus, defendant’s Motion for Summary Adjudication of plaintiffs’ punitive
damages claims must be denied.
CONCLUSION

For the reasons stated herein, plaintiffs respectfully request that this Court deny
HONEY WELL’s Motion for Adjudication as defendant failed to carry its burden under C.C.P.
§ 437c(c) and § 437c(p)(2) of proving that plaintiffs do not have, and cannot prove, their prima
facie case for punitive damages against it. Additionally, there are triable issues of material fact
exist concernin