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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                David T. Biderman, Bar No. 101577
dbiderman@perkinscoie.com

Diane T. Gorezyca, Bar No. 201203
dgorczyca @perkinscoie.com

PERKINS COTE LLP

Four Embarcadero Center, Suite 2400

San Francisco, CA 94111

Telephone: 415.344.7000

Facsimile: 415.344.7050

Attomeys for Defendant

HONEYWELL INTERNATIONAL INC.,, fik/a
AlliedSignal Inc., as successor-in-interest to The
Bendix Corporation

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

SEP 14 2011

Clerk of the Court
BY: JUANITA D. MURPHY
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA.

COUNTY OF SAN FRANCISCO

ROSITA PIQUE, as Wrongful Death Heir
and as Successor-in-Interest to the
GODOFREDO PIQUE, Deceased; and
MARLENE SANCHEZ, GREGORY
PIQUE, FREDERICK PIQUE, as Legal
Heirs of GODOFREDO PIQUE, Deceased,

Plaintiffs,
v.

DANA COMPANIES, LLC (FKA DANA
CORPORATION), et al.,

Defendants.

Case No, CGC-08-274659

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
HONEYWELL INTERNATIONAL INC.,
F/K/A ALLIEDSIGNAL INC.,
SUCCESSOR-IN-INTEREST TO THE
BENDIX CORPORATION’S MOTION
FOR SUMMARY ADJUDICATION

[Filed concurrently with Notice of Motion and
Motion; Separate Statement of Undisputed
Material Facts: Declaration of Diane T.
Gorczyca; Request for Judicial Notice; and
[Proposed] Order]

Hearing Date: December 1, 2011

Hearing Time: 9:30 a.m.

Dept.: 220

Judge: Hon. Harold E. Kahn
Trial Date: December 12, 2011

MEMORANDUM OF POINTS AND AUTHORITIES IN
INC.’S MOTION FOR SUMMARY ADJUDICATION:
3981 2-0003,2073/LEGAL21720559. 1

SUPPORT OF HONEYWELL INTERNATIONALI. INTRODUCTION

Plaintiffs assert they are entitled to punitive damages against Honeywell International Inc.,
fik/a AlliedSignal, Inc., as successor-in-interest to The Bendix Corporation (“Honeywell” or
“defendant”) based on Honeywell’s predecessor’s (Bendix) alleged concealment of information
about the dangers of asbestos and failure to warn Godofredo Pique (“decedent”) of these dangers,
in conscious disregard for his safety. Plaintiffs cannot support their claim for punitive damages
because they are unable to meet the high evidentiary burden required. The undisputed material
facts demonstrate that there is no evidence supporting plaintiffs’ allegations of conscious
disregard for the safety of others, or of oppression, fraud or malice by Honeywell/Bendix, or
authorization, ratification or an act of oppression, fraud or malice by an officer, director or
managing agent of Honeywell/Bendix.

Plaintiffs claim decedent suffered from direct and bystander occupational friction products
exposure at various places of employment, including United Parcel Service, Federal Express and
the East Bay Regional Park District, as well as non-occupational friction exposure from brake,
clutch and engine work on personal vehicles, from the 1970s until the 1990s.

As applied to this case, Section 3294 requires plaintiffs to prove “malice” by presenting
clear and convincing evidence that (1) the asbestos products manufactured or used by defendant
created a manifestly unreasonable risk of serious injury or death to decedent, (2) at least one
individual officer, director or employee of defendant subjectively formed the opinion that the risk
was manifestly unreasonable, (3) this same individual had sufficient managerial authority to take
appropriate action to reduce that risk, and (4) this individual willfully and despicably disregarded
that risk. The facts are undisputed that plaintiffs cannot meet these statutory requirements and a
reasonable jury could not find in plaintiffs’ favor. There are no allegations asserted that would
support any of these requirements. Honeywell is entitled to summary adjudication that plaintiffs

may not recover punitive damages.

-2-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HONEYWELL INTERNATIONAL
INC.’S MOTION FOR SUMMARY ADJUDICATION:
3981 2-0003,2073/LEGAL21720559. 1IL. STATEMENT OF FACTS

A. The Complaint

Plaintiffs filed their First Amended Complaint on October 5, 2010, which includes five
causes of action directed at Honeywell, in addition to other defendants. Plaintiffs’ five causes of
action all include allegations of conduct which plaintiffs purport are grounds for punitive
damages: (1) First Cause of Action for Negligence — Survival; (2) Second Cause of Action for
Products Liability — Survival; (3) Fifth Cause of Action for Negligence — Wrongful Death; (4)
Sixth Cause of Action for Products Liability - Wrongful Death; and (5) Eighteenth Cause of
Action for Concert of Action (“Complaint” and “Master Complaint”). Statement of Undisputed
Material Facts (“UMF”) No. 1. There are no specific allegations in the Complaint regarding the
acts or conduct of Honeywell. The punitive damages allegations are general and conclusory
claims and these same allegations are directed at all other named defendants. UMF No. 2.

In the negligence cause of action, plaintiffs allege that defendants’ conduct was
“despicable, willful, malicious, fraudulent, outrageous, and in conscious or reckless disregard and
indifference to the safety, health, and rights of “exposed persons”, including decedent herein,

giving rise to decedent’s claim herein alleged for punitive damages against said defendants.”

UMF No. 3. All remaining causes of action against Honeywell, namely plaintiffs’ Second, Fifth,
Sixth and Eighteenth Causes of Action, incorporate by reference the allegations made in their
Negligence Cause of Action. UMF No. 4.
B. Plaintiffs’ Discovery Responses

On May 26, 2011, defendant Honeywell served its First Set of Special Interrogatories on
plaintiffs. UMF No. 5. Honeywell’s Special Interrogatory No. 28 requested the following
information: “State each and every fact upon which YOU base YOUR punitive and exemplary
damages claim against HONEY WELL in this action.” UMF No. 6. Plaintiffs served written
Responses to Honeywell's First Set of Special Interrogatories on or about July 11, 2011 and

specifically responded to Interrogatory No. 28, in pertinent part:

“As to plaintiff's claim for punitive damages, plaintiff has clear and convincing

evidence that defendant HONEYWELL INTERNATIONAL, INC. engaged in

despicable conduct by continuing to manufacture and place in the stream of
-3-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HONEYWELL INTERNATIONAL
INC.’S MOTION FOR SUMMARY ADJUDICATION:
3981 2-0003,2073/LEGAL21720559. 1commerce for decades a product it knew killed those who handled it. Plaintiff
identifies an authenticated letter from Bendix Director of Purchases Ernest A.
Martin to Noel Hendry of Canadian John s Manville Co. Ltd. dated 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 products why not die
from it. There’s got to be some cause.”
UMF 7. Plaintiffs have produced no facts or statements in any of their discovery responses
attributable to Honeywell’s conduct, specifically and particular to this case, that would fit the
definition of malice, oppression or fraud, as required by Civil Code section 3294. UMF Nos. 1-
13. As such, plaintiffs’ cause of action and prayer for punitive damages are without merit.
Il. = ARGUMENT

A. Summary Adjudication Must Be Granted Where Plaintiffs Do Not Have Clear and
Convincing Evidence of Oppression, Fraud or Malice

1. A Motion for Summary Adjudication of a Punitive Damages Claim is
Authorized under Cal. Civ. Proc. Code § 437¢((D)

Under Cal. Civil Proc. Code § 437c(f)(1), a defendant may move for summary
adjudication as to “one or more claims for damages,” if the defendant contends that there is no
merit to a claim for damages, as specified in Section 3294 of the Civil Code. See also, Catalano
v. Sup. Ct, (Camenson), 82 Cal. App. 4th 91, 97 (2000) (a claim for punitive damages is one of
the substantive areas that is properly the subject of a motion for summary adjudication).

2. Punitive Damages Require Clear and Convincing Evidence of Oppression,
Fraud or Malice in Commission of a Tort

Civil Code § 3294(a) expressly requires that the plaintiff prove with clear and convincing
evidence, that defendant has been guilty of oppression, fraud or malice. The statute defines
“malice,” as “despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.” Cal. Civ. Code § 3294(c)(1). “Fraud” is
“an intentional misrepresentation, deceit, or concealment of a material fact known to the
defendant with an intention to deprive a person of property or legal rights or otherwise cause

injury. § 3294(c)(3).

-4-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HONEYWELL INTERNATIONAL
INC.’S MOTION FOR SUMMARY ADJUDICATION:
3981 2-0003,2073/LEGAL21720559. 1The clear and convincing evidence standard of proof requires “a finding of high
probability,” which means evidence that is “‘so clear as to leave no substantial doubt;’
‘sufficiently strong to command the unhesitating assent of every reasonable mind.’” Jn re

Department of Soc. Servs. v. Ronald P. (Angelia P.), 28 Cal. 3d 908, 919 (1981).

3. The “Clear and Convincing” Evidentiary Burden Must Be Met in This
Motion for Summary Adjudication

As held in American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App.
4th 1017, 1049 (2002), in ruling on a motion for summary adjudication, “the judge must view the
evidence presented through the prism of the substantive [clear and convincing] evidentiary
burden (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-255, 106 S.Ct. 2505 (1986)).”
Thus, “where the plaintiff's ultimate burden of proof will be by clear and convincing evidence,
the higher standard of proof must be taken into account in ruling on a motion for summary
judgment or summary adjudication.” Id.

See also, Jackson v. Paramount Pictures Corp., 68 Cal. App. 4th 10, 26 (1998): “[T]he
Court finds that Plaintiff has not shown the ability to prove actual malice by clear and convincing
evidence. ‘[T]he burden lies on the plaintiff opposing the motion to affirmatively establish by
clear and convincing evidence that a genuine issue of fact exists as to whether actual malice can
be proven at trial”),

As stated by the U.S. Supreme Court, “where the .. . ‘clear and convincing’ evidence
requirement applies, the trial judge’s summary judgment inquiry as to whether a genuine issue
exists will be whether the evidence presented is such that a jury applying the evidentiary standard
could reasonably find for either the plaintiff or defendant.” Anderson v. Liberty Lobby, Inc.,
supra, 477 U.S. at 254-255. Plaintiffs cannot meet this burden; summary adjudication in favor of

Honeywell on the punitive damages claim should be granted.

| Although the standard for malice in Jackson, a defamation case, was different than the punitive damages
standard for malice, the evidentiary requirement that the plaintiff provide clear and convincing evidence in opposition
to a summary judgment or summary adjudication motjon is the same burden as in the present case.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HONEYWELL INTERNATIONAL
INC.’S MOTION FOR SUMMARY ADJUDICATION:
3981 2-0003,2073/LEGAL21720559. 1B. Plaintiffs Have Not Provided Any Evidence Showing That They Are Entitled To

Punitive Damages.

The right to an award of punitive or exemplary damages in California is strictly statutory.

In an action for the breach of an obligation not arising from

contract, where it is proven by clear and convincing evidence that

the 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.
Civ. Code §3294, subd. (a). In a negligence action, conclusory allegations that simply
characterize defendant’s conduct as malicious, oppressive, or fraudulent are insufficient and
subject to a dispositive motion. A plaintiffs complaint must allege facts demonstrating these
factors. See, Smith v. Super. Ct. (Bucher), 10 Cal. App. 4th 1033, 1036, 1042 (1992). Plaintiffs’
complaint contains no such facts.

A defendant’s motion for summary adjudication on the issue of punitive damages will
succeed where a plaintiff fails to provide evidence of “oppression, fraud, or malice” that could be
considered “clear and convincing.” See American Airlines, Inc. v. Sheppard, Mullin, Richter &
Hampton, 96 Cal.App.4th 1017, 1048-1054 (2002). In this case, plaintiffs have failed to provide
any evidence, much less “clear and convincing” evidence, that Honeywell is guilty of
“oppression, fraud, or malice.”

Ordinary negligence (mere carelessness or simply failure to exercise due care for
plaintiff's safety) does not amount to “malice” and thus does not support a punitive award. A
finding of grossly negligent or even reckless conduct is likewise not enough to establish “malice.”
Bell v. Sharp Cabrillo Hosp., 212 Cai.App. 3d 1034, 1044 (1989). “Malice” for these purposes
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.” Cal. Civil §3294, subd. (c)(1) (emphasis added); see College Hosp., Inc. v.
Super. Ct., 8 Cal. 4th 704, 725 (1994). The statutory definition of “malice” was amended in 1987
to introduce the “despicable conduct” qualification in non-intentional tort cases and to require that
such “despicable conduct” be carried on with a willful and conscious disregard. Cal. Civil §3294,

subd. (c)(1). The amendment shows the legislature’s intent to make the prove-up of punitive
-6-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HONEYWELL INTERNATIONAL
INC.’S MOTION FOR SUMMARY ADJUDICATION:
3981 2-0003,2073/LEGAL21720559. 1damages in a non-intentional tort case a difficult task. “Used in its ordinary sense, the adjective
‘despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or

o

‘contemptible.’ College Hosp., supra, 8 Cal.4th at 725. Accordingly, the California Civil Jury
Instructions define “despicable conduct “ as “conduct that is so mean, vile, base, or contemptible
that it would be looked down on and despised by reasonable people.”

Plaintiffs have produced no facts or statements attributable to Honeywell’s conduct,
specifically and particular to this case, that would fit the definition of malice, oppression or fraud,
as required by Civil Code section 3294. UMF Nos. 1-13. Moreover, plaintiffs do not have the

evidence to support the underlying causes of action. UMF Nos. 1-13. As such, plaintiffs’ “cause
of action” and prayer for punitive damages are without merit.
Cc Punitive Damages May Not Be Awarded for Negligent Conduct

Plaintiffs request punitive damages in their First and Fifth Causes of Action for
Negligence. Punitive damages are not available for negligent conduct. See, Kendall Yacht Corp.
v. United California Bank, 50 Cal. App. 3d 949, 958 (1975); Jackson v. Johnson, 5 Cal. App. 4th
1350, 1354 (1992). Rather, punitive damages require clear and convincing evidence of a
wrongful intent to injure. Kendall, supra, 50 Cal.App.3d at 958, Plaintiffs cannot obtain punitive
damages on their First and Fifth Causes of Action.
D. Punitive Damages May Not Be Awarded to a Wrongful Death Claimant

Plaintiffs request punitive damages in their Fifth Cause of Action for Negligence —
Wrongful Death and Sixth Cause of Action for Products Liability - Wrongful Death. Punitive
damages are not available to a wrongful death claimant. See, Tarasoff v. Regents of Univ. of
California, 17 Cal. 3d 425, 240 (1976); Rujo v. Simpson, 86 Cal. App. 4th 573, 616 (2001).
Plaintiffs may not obtain punitive damages on their fifth or sixth causes of action.

Simply put, there is no evidence supporting plaintiffs’ allegations of conscious disregard
for the safety of others, or of oppression, fraud or malice by Honeywell/Bendix, or authorization,
ratification or an act of oppression, fraud or malice by an officer, director or managing agent of

Honeywell/Bendix. The facts are undisputed that plaintiffs cannot meet the statutory

-7-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HONEYWELL INTERNATIONAL
INC.’S MOTION FOR SUMMARY ADJUDICATION:
3981 2-0003,2073/LEGAL21720559. 1requirements and a reasonable jury could not find in plaintiffs’ favor. Honeywell is entitled to
summary adjudication that plaintiffs may not recover punitive damages.
IV. CONCLUSION

As a matter of law, plaintiffs may not obtain punitive damages for negligent conduct or
for any wrongful death cause of action, as alleged in their First, Fifth and Sixth Causes of Action.
Additionally, with respect to all causes of action, plaintiffs cannot meet their evidentiary burden
of producing clear and convincing evidence that Honeywell acted with oppression, fraud or
malice, or that an act of oppression, fraud or malice by an officer, director or managing agent of
Honeywell was authorized or ratified by Honeywell. Honeywell respectfully requests that the
Court grant its motion for summary adjudication of the punitive damages claims, and find that

plaintiffs are not entitled to an award of punitive damages against Honeywell.

DATED: September 14, 2011 PERKINS COIE LLP

By: /s/_Diane T. Gorezyca

Diane T. Gorezyca

Attorneys for Defendant

HONEYWELL INTERNATIONAL INC.,
f/k/a AlliedSignal Inc., as successor-in-interest
to The Bendix Corporation

-8-

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HONEYWELL INTERNATIONAL
INC.’S MOTION FOR SUMMARY ADJUDICATION:
3981 2-0003,2073/LEGAL21720559. 1