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‘LAW OFFICES.
HAIGHT, BROWN &
BONESTEEL, LLP.
San Francisco
Daniel J. Kelly (Bar No. 145088)
Gregory J. Thoming (Bar No. 187109)
Daniel LaCount (Bar No. 244306)
HAIGHT, BROWN & BONESTEEL, L.L.P. ELECTRONICALLY
71 Stevenson Street, 20th Floor
San Francisco, California 94105-2981 FILED |
Telephone: 415.546.7500 Superior Court of Callfornia,
Facsimile: 415.546.7505 County of San Francisco
AUG 28 2009
Attorneys for Defendant NAVISTAR, INC,, formerly GORDON PARK-LI, Clerk
known as International Truck and Engine Corporation BY: VANESSA Me puty clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
GODOFREDO PIQUE, Case No. CGC-08-274659
Plaintiff, MEMORANDUM IN SUPPORT OF
DEFENDANT NAVISTAR, INC'S
vs. MOTION FOR SUMMARY
: JUDGMENT
ASBESTOS DEFENDANTS, et al.,
Date: November 13, 2009
Defendants. Time: 9:30 a.m.
Dept: 301
Trial Date: December 14, 2009
Defendant Navistar, Inc., formerly known as International Truck and Engine
Corporation (“Navistar”) submits the following memorandum in support of its motion for
summary judgment or, in the alternative, summary adjudication against plaintiff
Godofredo Pique (hereinafter, “plaintiff or "Pique") pursuant to Califomia Code of Civil
Procedure section 437c. This motion is brought on the grounds that the undisputed
material facts establish that plaintiff's action has no merit because plaintiff cannot establish
that he worked with any asbestos containing products that were manufactured or supplied
by Navistar.
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I. STATEMENT OF FACTS
A. Plaintiff's AHegations
On May 8, 2008, plaintiff filed a complaint seeking damages for injuries he
allegedly suffered caused by exposure to asbestos-containing products. Plaintiff alleges
exposure to asbestos containing products during his service in the U.S. Navy and
employment as a mechanic from 1962 to 2007. The causes of action directed against
Navistar are for negligence, strict products liability, false representation, and punitive ,
damages. (Separate Statement of Undisputed Facts "SSUF" No. 1)
B. Plaintiff's Deposition Testimony
In his deposition, plaintiff testified that he worked on two International dump trucks
while he was employed by Inter-Island Construction ("Inter-Island") in the Philippines
from 1962 to 1964. He also identified work performed to an "International sewer truck"
and an "International type IV fire truck" between 1990 and 2007 when he worked for the
East Bay Regional Park District.
1, Alleged International Work While Employed By Inter-Island Construction in
the Philippines from 1962 to 1964
Plaintiff testified that from 1962 to 1964 he was employed as a mechanic by Inter-
Island Construction ("Inter-Island") in the Philippines. (SSUF No. 2) Plaintiff testified
that there were two International dump irucks at Inter-Island during his employment.
(SSUF No. 3)
One of these dump trucks was referred to as "International truck number one"
during plaintiff's deposition. “International truck number one” was present at Inter-Island
at the time plaintiff started working at Inter-Island and was still at Inter-Inland when
plaintiff left in 1964. Plaintiff does not know the decade in which. "International truck
number one" was manufactured, but testified that it was an "old truck." (SSUF No. 4)
Plaintiff does not know the prior maintenance history or the mileage of “International truck
number one." (SSUF No. 5) Plaintiff testified that he performed brake jobs on the
“International truck number one” but he could not recall how many brake jobs he
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performed. (SSUF No. 6) Plaintiff recalled that he removed Bendix brand brakes from
“International truck number one” and he remembers that the shoes were marked "Bendix."
(SSUF No. 7) Plaintiffconceded that he has no information that any of the brakes that he
took off of "International truck number one" were factory installed original brakes. (SSUF
No. 8) Plaintiff recalled that the replacement brakes he installed on "International truck
number one" where marked with the name "Bendix" on the shoes and linings. (SSUF No.
9)
Plaintiff also testified that he performed clutch work on "International truck
number one" but he could not recall how many times. (SSUF No. 10) Plaintiff could not
recall the brand name, manufacturer, or supplier of the clutch or transmission components
he removed from "International truck number one." (SSUF No. 11) Plaintiff conceded
that he has no information that any of the clutch or transmission components he removed
from “International truck number one" were factory installed original component parts.
(SSUF No, 12) Plaintiff recalled removing the pressure plate, the truck bearing, the fork
and the clutch disc from “International track number one." Plaintiff testified that the
removed parts were manufactured by BorgWamer. (SSUF No. 13) Plaintiffhas no
information that the pressure plate, the truck bearing, the fork and the clutch disc he
removed from "International truck number one” were factory installed original parts.
(SSUF No. 14) Plaintiff testified that the replacement clutch components he installed on
"International truck number one" had the name Borg-Warner written on the clutch disc,
(SSUF No. 15) Finally, plaintiff did not recall personally performing or being present
while anyone else performed any gasket or muffler work on "International truck number
one.” (SSUF No. 16)
Plaintiff identified a second International dump truck at Inter-Island which was
referred to as “International truck number two" during his deposition. Plaintiff recalled
that “International truck number two” was an old dump truck. As with "International
truck number one," plaintiff does not know the vintage or year of manufacture of this
truck, and does not know what the mileage of the truck was at the time he first worked on
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it. (SSUF No. 17) Plaintiff testified that “International truck number two” appeared to be
the same model or type as “International track number one.” (SSUF No. 18) Plaintiff
testified that he performed at least one brake job on “International truck number two.”
(SSUF No. 19) Plaintiff recalled that he removed Bendix brand brakes from
“International truck number two” and that "Bendix" was marked on the shoes. (SSUF No.
20) Plaintiff conceded that he has no information that the brakes that he took off of
“International truck number two” were factory installed original brakes. (SSUF No. 21)
Plaintiff recalled that the replacement brake shoes and linings he installed on “International
truck number two” were marked with the name “Bendix.” (SSUF No. 22) Plaintiff could
not recall whether he ever performed clutch work, gasket work, muffler or exhaust work or
was present when others performed clutch work on “International truck number two.”
(SSUF No. 23)
Plaintiff is not aware of any other individuals that might have information regarding
his work with the two Internationals at Inter-Island and, although plaintiff recalled the
names of some of the co-workers he worked with in the early 1960s in the Philippines at
Inter-Island, he could not provide any contact information for these individuals and has no
information regarding whether any of them are still living, (SSUF Nos. 24-27) Plaintiff
remained in the Philippines until 1967 or 1968 when he left to live in the United States.
(SSUF No. 28)
2. Alleged International Work While Employed By the East Bay Regional Park
District from 1990 to 2007
Plaintiff worked for the East Bay Regional Park District from October 1990 until
2007. (SSUF No. 29) Plaintiff testified that the East Bay Regional Park District had fire
trucks. He recalls small pump trucks used for vegetation and "type IV" fire trucks used for
forest fires. (SSUF No. 30) Plaintiff worked in a maintenance facility located in Castro
Valley and his job duties included repairing and maintaining some of these fire trucks,
including fire trucks from the Berkeley, San Ramon and Livermore stations. (SSUF Nos.
31-32)
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At the Berkeley fire station there were at least four to five fire trucks, and plaintiff
testified that at least one of these trucks was an "International type IV." (SSUF Nos. 33-
34) Plaintiff indicated that this "International type IV" fire truck was at the Berkeley
station when he began working for the East Bay Regional Park District in 1990. Plaintiff
estimated that this track was manufactured in the 1970s but could not say this for certain.
Plaintiff does not know the prior maintenance history of this truck. (SSUF Nos. 35-37)
Plaintiff personally replaced the brakes on this "International type IV" fire truck on one
occasion in approximately 1994. (SSUF Nos. 38-39) Plaintiff recalled that the name
"Bendix" was present on the brake shoes and linings he removed from the "International
type IV" fire truck. (SSUF No. 40) Plaintiff has no information that the brakes he
removed on this single occasion were original to the truck. (SSUF No. 41) His supervisor
ordered the replacement parts for the one brake replacement on the "International type IV"
fire truck. The parts came in a box and there was a number and brand name on the box.
He can not recall the number written on the box, but recalls the brand name written on the
box, and on the shoes and linings themselves, was "Bendix." (SSUF Nos. 42-43)
Plaintiff's supervisor from this period retired in 2000 and plaintiff has no information
regarding how to contact him. (SSUF No. 44) Plaintiff did not identify any other brake,
gasket, clutch, or exhaust system work on this “International type IV" fire truck performed
by him or others in his proximity. (SSUF Nos. 45-46)
Plaintiff testified that there was a second "International type IV" fire truck that was
stationed at the Del Valle, Livermore station, however, plaintiff did not identify any brake,
gasket, clutch, or exhaust system work on this "International type IV" fire truck performed
by bim or others in his proximity. (SSUF Nos, 47-50)
Plaintiff testified that there when he first started working at the Castro Valley
station in 1990, they had "an old International sewer truck" that may have been
manufactured in the 1970s. This was replaced with a newer model International sewer
truck in the early 1990s. (SSUF Nos. 51-52) Plaintiff does not recall performing or being
present when others performed brake, clutch, gasket or muffler work to the "replacement
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International sewer truck." (SSUF Nos. 53-55) Plaintiff does not know the prior
maintenance history of the old 1970s International sewer truck. (SSUF No. 56) Plaintiff
testified that he “probably” personally performed brake jobs on the "1970s International
sewer truck" on two occasions. (SSUF No. 57) Plaintiff recalls seeing the brand name
"Bendix" on the shoe and linings of the brakes he removed from the "1970s International
sewer truck." (SSUF No. 58) Plaintiff has no information that the brakes he removed
from the "1970s International sewer truck" were original factory installed brakes. (SSUF
No. 59) Plaintiff's supervisor ordered the replacement brake parts plaintiff installed on
the "1970s International sewer truck.” The replacement parts came in a box with the name
"Bendix" on the box. The replacements parts themselves had the name "Bendix" on them.
(SSUF No. 60) Plaintiff's supervisor from this period retired in 2000 and plaintiff has no
information regarding how to contact him. (SSUF No. 44) Plaintiff also testified that he
performed gasket work on the sewer pump installed on the back of the "1970s
International sewer truck" but conceded that the back part of the truck that included the
pump and tank were built by someone other than International. (SSUF No. 61) Plaintiff
did not identify any other brake, gasket, clutch, or exhaust system work on this "1970s
International sewer truck." (SSUF Nos. 62-63)
Plaintiff testified that the East Bay Regional Parks District purchased replacement
parts from California Brakes in Hayward, California. Plaintiff personally visited this store
to buy replacement Bendix brand brakes during his first three years of employment with
the East Bay Regional Parks District. Plaintiff testified that the East Bay Regional Parks
District also purchased replacement parts, including replacement brakes, from "Edgewater
International." (SSUF Nos. 64-65) According to plaintiff, "Edgewater International” was
an "International dealership" located in Hayward. California. Plaintiff never personally
went to Edgewater to pick up brake parts for the International trucks he repaired for the
East Bay Regional Parks District, however, he believes that during the course of his
employment he installed brakes that were obtained from "Edgewater International."
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(SSUF Nos. 66) Finally, plaintiff conceded that he has no information that brake
components ever contained asbestos during the course of his work career. (SSUF Nos. 67)
C. Plaintiff's Factually Devoid Written Discovery Responses
Plaintiffs standard interrogatory responses do not identify any work done with
Navistar original factory installed or Navistar supplied friction products or gaskets.
(SSUF No.68) Similarly, plaintiff's responses to Navistar's discovery requests do not
identify any work done with Navistar original factory installed or Navistar supplied
friction products or gaskets, bat rather, merely state that Pique removed and replaced drum
brakes on International Harvester dump trucks and was present when others did the same
while employed at Inter-Island Corporation from 1962 to 1964 and lists the names of his
co-workers from this location without providing any contact information. (SSUF Nos. 69-
70) In response to Navistar's inspection demand, plaintiff produced no documents that
identify-any-work-done with Navistar original factory installed or Navistar supplied
friction products or gaskets. (SSUF No. 71)
D. Relevant Navistar Product Background
At various times Navistar has been a manufacturer in part, assembler and distributor
of multi-purpose passenger vehicles, pickup trucks, cab and chassis products, construction
equipment and farm equipment, however, Navistar has never manufactured any asbestos-
containing products, such as brake linings, clutch driven members and/or gaskets. (SSUF
No, 72) Navistar has never specified the materials of which brakes are to be composed to
any manufacturer, supplier, or distributor of brakes. (SSUF No. 73) Automotive friction
products, such as brake linings, clutch driven members and gaskets, which were
incorporated in Navistar’s products and service replacement kits were supplied by third-
party companies, entities or individuals. A number of major after-market friction product
manufacturers, including after-market gasket manufacturers, have manufactured after-
market replacement products that fit Navistar equipment and vehicles. While these
replacement parts may have been installed in Navistar equipment and vehicles, they were
not manufactured, sold, distributed or supplied by Navistar. (SSUF No. 74)
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Between 1990 and 2007, Navistar, Inc., did not own or operate "Edgewater
International" located in Hayward, California. "Edgewater International" was an
independent dealership owned and operated by persons, firms, or corporations other than
Navistar. (SSUF No. 75) Independent Navistar dealers were not required to stock or
distribute only parts supplied by Navistar. Instead, independent Navistar dealers were free
to acquire service parts from other manufacturers or distributors consistent with their
individual pricing objectives and their particular customer requirements. Replacement
service parts for International trucks, were readily available throughout the United States at
all times relevant to this litigation from a variety of different manufacturers. For this
reason, many Navistar dealers stocked replacement parts for International trucks from
suppliers other than Navistar. Therefore, even assuming that the East Bay Regional Park.
District obtained parts from an independent Navistar dealer, there is no assurance that
those replacement service parts were supplied to the dealer by Navistar. (SSUF No. 76)
Finally, Navistar did not manufacture or distribute "International sewer trucks" or
"International fire trucks." Navistar did, however, manufacture in part, assemble, and
distribute incomplete cab and chassis for subsequent manufacture by body builders and
others. Navistar ceased supplying asbestos containing brake components manufactured as
original equipment on its cab and chassis products using air brake assemblies in the very
early 1990s. Non-asbestos containing friction components were supplied as original
equipment for these incomplete vehicles and available as replacement service parts to
independent dealers. As a result, independent dealers had both non-asbestos friction
components manufactured by others but distributed by Navistar and friction components
distributed by persons other than Navistar available for sale. There is no assurance that the
service parts allegedly purchased by East Bay Regional Park District either contained
asbestos or were distributed by Navistar. (SSUF Nos. 77-78)
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I. LEGAL ANALYSIS
A. Summary Judgment Is Appropriate Where The Undisputed Material
Facts Demonstrate That The Asserted Causes Of Action Are Without
Merit
Code of Civil Procedure section 437c authorizes entry of summary judgment or
summary adjudication “in any action or proceeding if it is contended that the action has no
merit or that there is no defense to the action or proceeding . .. if all the papers submitted
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.” A motion for summary judgment shall be
granted if there is no triable issue and the record establishes that, as a matter of law,
plaintiffs cannot prevail on any cause of action. Andrews v. Foster Wheeler (2006) 138
Cal. App.4th 96, 101, citing Code of Civil Procedure § 437c and Scheiding v. Dinwiddie
Construction Co. (1999) 69 Cal. App. 4th 64, 69.
The defendant is entitled to summary judgment if it shows that one or more
elements of the plaintiffs cause of action cannot be established and demonstrates there is
no material issue of fact which requires the process of a trial. A defendant does not need.
to conclusively negate an element of plaintiff’s case. As restated by the Andrews court:
As our Supreme Court has noted, “[s}ummary judgment law in
this state, however continues to require a defendant moving for
summary judgment to present evidence, and not simply point
out that plaintiff does not possess, and cannot reasonabl
obtain, needed evidence.” (Aguilar vy. Atlantic Richfiel
Company (2001) 25 Cal. 4th 826, 854 [citations omitted]
Aguilar), accord Saelzler v. Advance Group 400, supra
(2001) 25 Cal.4th 763], 25 Cal.4th at B. 768 [burden shifts to
the opposing party “ ‘upon a “showing” that one or more
elements of the cause of action cannot be established’”].)
“There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar, at
p. 850, fn. omitted.)
Andrews, 138 Cal.App.4th at 101!
. ' Under Andrews and Aguilar, a defendant may rely on circumstantial evidence,
including factually devoid discovery Tesponses, to satisfy its initial burden. Depending
upon the circumstances of the case, a defendant may not need to propound special
interrogatories or engage in extensive discovery to meet its initial burden of persuasion.
See Weber v. John Crane, Inc. (2006) 143 Cal-App.4th 1433, 1442.
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Once a defendant establishes a prima facie case for summary judgment, the burden shifts
to the plaintiff to demonstrate the existence of a triable issue of material fact. In so doing,
plaintiffs may not rely on the mere allegations of their complaint to establish causation.
Rather, they must “set forth specific facts showing a triable issue of material fact exists as
to that cause of action.” Code of Civil Procedure §437(c)(p)(2). The evidence presented
“must be of sufficient quality to allow the trier of fact to find the underlying fact [of
exposure] in favor of the parties opposing summary judgment.” McGonnell v. Kaiser
Gypsum Co., Inc. (2002) 98 Cal. App. 4th 1098, 1105, citing Aguilar, 25 Cal. 4th at 850.
In negligence and strict production liability claims, a plaintiffs must show exposure to a
manufacturer’s originally installed components. In Taylor v. Elliott Turbomachinery Co.,
Inc. (2009) 171 Cal. App. 4th 564, 583, a widow sought damages for decedent’s exposure
to asbestos which allegedly occurred while he served in the U.S. Navy. Plaintiff had
deposition testimony that decedent had worked in the propulsion compartments on various
naval ships and evidence that a number of defendant had supplied machinery aboard the
ships. Plaintiff did not have evidence decedent worked on the original asbestos-containing
components associated with defendants’ machinery, but argued instead defendant-
manufactures had a duty to warn with respect to asbestos-containing replacement
components which were manufactured by other companies. The Court of Appeal held,
“California case law has not imposed on manufacturers a duty to warn about the dangerous
propensities of other manufacturers’ product. California courts will not impose a duty to
warn on a manufacturer where the manufacturer's product “did not cause or create the risk
of harm.” Taylor, supra, Cal. App. 4th at p. 583 (quoting Garman v. Magic Chef, Ine.
(1981) 117 Cal. App.3d 634,638; footnote omitted).
Here, plaintiff must establish that Pique's exposure to a product attributable to
Navistar was “to a reasonable medical probability a substantial factor in contributing to
any asbestos-related disease suffered by him, pursuant to the standard of proof articulated
in Rutherford v. Owens-Illinois, Inc. (1997)16 Cal.4th 953, 974-977.” Andrews, 138
Cal.App.4th at 102. In the instant case, plaintiff must proffer evidence that Pique was
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exposed to asbestos containing component parts that were factory-installed by Navistar or
with replacement parts that were supplied by Navistar. Plaintiff can prove neither
contention.
B. Summary Judgment Is Appropriate Because Plaintiff Cannot Establish
at Plaintiff Was Exposed To Asbestos-Containing Components
Installed Or Supplied By Navistar.
Plaintiff cannot satisfy his burden of proving causation in this case. The admissions
contained in plaintiff Godofredo Pique's deposition and in responses to written discovery
demonstrate that plaintiff cannot identify any asbestos containing component parts that
were factory-installed by Navistar. Likewise, the admissions contained in plaintiff's
deposition and in responses to written discovery demonstrate that he cannot identify any
asbestos containing replacement parts that were supplied by Navistar, as the source of his
alleged exposure to asbestos.
Here, as set forth above, Mr. Pique has identified work on two International dump
trucks while he was employed by Inter-Island Construction ("Inter-Island") in the
Philippines from 1962 to 1964. He also identified work performed to an "International
sewer truck" and an “Intemational type IV fire truck" between 1990 and 2007 when he
worked for the East Bay Regional Park District. Plaintiff's discovery responses
demonstrates that plaintiff has no evidence that Mr. Pique was exposed to asbestos
containing materials that were factory-installed by Navistar because he does not know the
prior maintenance history of any of these trucks, and he did not identify any of the parts
removed from these trucks as "International." Furthermore, Navistar did not manufacture
or distribute "fire trucks” or "sewer trucks" beyond the chassis, and therefore, these trucks
would have been assembled by other body builders and manufacturers. Even assuming
arguenedo that the East Bay Regional Park District obtained replacement parts from
"Edgewater International,” this was an independent dealership owned and operated by
persons, firms, or corporations other than Navistar. Plaintiff has no facts that can
demonstrate that plaintiff ever removed or installed parts obtained from Edgewater
International, and no evidence that any service parts allegedly purchased by East Bay
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Regional Park District either contained asbestos or were distributed to Edgewater
International by Navistar.
As set forth above, plaintiff cannot demonstrate that a triable issue of fact exists
with respect to whether Pique was exposed to asbestos containing component parts that
were factory-installed or distributed by Navistar. Accordingly, Navistar cannot be liable
for plaintiff's asbestos exposure and each of the causes of action that might stem from such
exposure.
C. Since Plaintiff Cannot Demonstrate That He Was Exposed To
Asbestos Containing Products Factory-installed Or Supplied By
Navistar, Each Of Plaintiff's Causes Of Action Must Fal.
It is axiomatic that if plaintiff cannot show that Navistar caused plaintiff to be
exposed to asbestos, Navistar cannot be liable for plaintiff's alleged injuries. As set forth
above, plaintiff's evidence is devoid of facts that would demonstrate that he was exposed to
asbestos containing component parts that were factory-installed by Navistar or with
replacement parts that were supplied by Navistar. Accordingly, on this basis alone,
plaintiff's claims for negligence, strict products lability, false representation, and punitive
damages must all fail. In addition, some of plaintiff's causes of action must fail for the
independent reasons set forth below.
1 Plaintiff Lacks Evidence to Sustain His False Representation Cause
of Action.
Plaintiff alleges a claim for false representation. A cause of action for false
representation requires an affirmative false representation made by a defendant or an agent
of the defendant concerning a material fact. In order to prevail, plaintiffs must offer
evidence establishing “how, when, where, to whom, and by what means the
representations were tendered.” Lazar v. Sup. Ct. (1996) 12 Cal.4® 631,645. In the present
case, plaintiff has failed to proffer any information substantiating his false representation
claim. (SSUF No, 26.) A plaintiff must also establish that he or she was the actual or
intended recipient of the communication containing the representation. See BAJI 12.50.
California courts have specifically rejected the “fraud on the market” theory of liability.
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Mirkin v. Wasserman (1993) 5 Cal.4" 1082. A plaintiff who hears an alleged
misrepresentation indirectly must still establish justifiable reliance on it. Gawara v. U.S.
Brass (1988) 63 Cal.App.4® 1341. Again, plaintiff has offered no evidence supporting
these elements. Plaintiff's discovery responses show that he has no evidence and cannot
reasonably obtain evidence supporting a false representation claim.
2. Plaintiff's Lack Clear and Convincing Evidence that Navistar
Acted with Malice, Oppression or Fraud.
Plaintiff's complaint does not contain any specific factual allegations of oppression,
fraud, or malice on the part of Navistar. In order to recover punitive damages under Civil
Code section 3294 in a strict liability action, plaintiff must plead and prove “conduct
evincing callous and conscious disregard of public safety by those who manufacture and
market mass produced articles.” Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d
757, 810, These facts are not alleged or present in the instant case. Navistar did not
manufacture the friction components and gaskets incorporated into its vehicles. Under
these circumstances, there is no basis for the imposition of punitive damages. Even,
assuming arguendo, that evidence of liability existed, punitive damages are not warranted
since there is no evidence Navistar acted with “oppression, fraud or malice.” As set forth
above plaintiff's discovery responses assert only general allegations, not actual evidence,
of wrongdoing by Navistar. As in Andrews, supra, plaintiff cannot rely on factually
devoid discovery responses to support a claim. Finally, the standard of proof for punitive
damages is “clear and convincing evidence.” Civ. Code § 3294(a). Plaintiff has no
evidence to support a claim for punitive damages and has not demonstrated that he can
obtain evidence to meet the heightened evidentiary burden required for the imposition of
punitive damages. Therefore, Navistar is entitled to summary judgment (or summary
adjudication) with respect to plaintiffs punitive damage claim.
IV. CONCLUSION
The undisputed facts demonstrate that plaintiff cannot produce evidence that he was
ever exposed to any asbestos-containing product manufactured or supplied by Navistar.
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Lacking such evidence, plaintiff cannot establish causation between Navistar products and
plaintiff's injuries. For the foregoing reasons, Navistar respectfully requests summary
judgment be granted in its favor and against plaintiff, or in alternative, summary
adjudication in Navistar's favor on plaintiff's claims.
Dated: August 28, 2009 HAIGHT, BROWN & BONESTEEL, L.L.P.
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Daniel J. Kelly
Gregory J. Thoming
Daniel LaCount
Attorneys for Defendant
NAVISTAR, INC., formerly known as
International Truck and Engine
Corporation
14
Nvos-cov0se2 MEMORANDUM IN SUPPORT OF
3878768. MOTION FOR SUMMARY JUDGMENT
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Oo 6B SDH HW FR YB YY RN NY RY DB RN Ree oD TD A BP Ye NY SF SC OD Oe HD DR RR Be WH NH EK SO ‘LAW OFFICES. HAIGHT, BROWN & BONESTEEL, LLP. San Francisco Daniel J. Kelly (Bar No. 145088) Gregory J. Thoming (Bar No. 187109) Daniel LaCount (Bar No. 244306) HAIGHT, BROWN & BONESTEEL, L.L.P. ELECTRONICALLY 71 Stevenson Street, 20th Floor San Francisco, California 94105-2981 FILED | Telephone: 415.546.7500 Superior Court of Callfornia, Facsimile: 415.546.7505 County of San Francisco AUG 28 2009 Attorneys for Defendant NAVISTAR, INC,, formerly GORDON PARK-LI, Clerk known as International Truck and Engine Corporation BY: VANESSA Me puty clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO GODOFREDO PIQUE, Case No. CGC-08-274659 Plaintiff, MEMORANDUM IN SUPPORT OF DEFENDANT NAVISTAR, INC'S vs. MOTION FOR SUMMARY : JUDGMENT ASBESTOS DEFENDANTS, et al., Date: November 13, 2009 Defendants. Time: 9:30 a.m. Dept: 301 Trial Date: December 14, 2009 Defendant Navistar, Inc., formerly known as International Truck and Engine Corporation (“Navistar”) submits the following memorandum in support of its motion for summary judgment or, in the alternative, summary adjudication against plaintiff Godofredo Pique (hereinafter, “plaintiff or "Pique") pursuant to Califomia Code of Civil Procedure section 437c. This motion is brought on the grounds that the undisputed material facts establish that plaintiff's action has no merit because plaintiff cannot establish that he worked with any asbestos containing products that were manufactured or supplied by Navistar. Mi I It 1 NV06.0000502 MEMORANDUM IN SUPPORT OF 35787681 MOTION FOR SUMMARY JUDGMENTLAW OFFICES HAIGHT, BROWN m oo DD HW BF WW 10 & BONESTEEL, LLP. San Francisco I. STATEMENT OF FACTS A. Plaintiff's AHegations On May 8, 2008, plaintiff filed a complaint seeking damages for injuries he allegedly suffered caused by exposure to asbestos-containing products. Plaintiff alleges exposure to asbestos containing products during his service in the U.S. Navy and employment as a mechanic from 1962 to 2007. The causes of action directed against Navistar are for negligence, strict products liability, false representation, and punitive , damages. (Separate Statement of Undisputed Facts "SSUF" No. 1) B. Plaintiff's Deposition Testimony In his deposition, plaintiff testified that he worked on two International dump trucks while he was employed by Inter-Island Construction ("Inter-Island") in the Philippines from 1962 to 1964. He also identified work performed to an "International sewer truck" and an "International type IV fire truck" between 1990 and 2007 when he worked for the East Bay Regional Park District. 1, Alleged International Work While Employed By Inter-Island Construction in the Philippines from 1962 to 1964 Plaintiff testified that from 1962 to 1964 he was employed as a mechanic by Inter- Island Construction ("Inter-Island") in the Philippines. (SSUF No. 2) Plaintiff testified that there were two International dump irucks at Inter-Island during his employment. (SSUF No. 3) One of these dump trucks was referred to as "International truck number one" during plaintiff's deposition. “International truck number one” was present at Inter-Island at the time plaintiff started working at Inter-Island and was still at Inter-Inland when plaintiff left in 1964. Plaintiff does not know the decade in which. "International truck number one" was manufactured, but testified that it was an "old truck." (SSUF No. 4) Plaintiff does not know the prior maintenance history or the mileage of “International truck number one." (SSUF No. 5) Plaintiff testified that he performed brake jobs on the “International truck number one” but he could not recall how many brake jobs he 2 NV06-0000502 MEMORANDUM IN SUPPORT OF 3578768.1 MOTION FOR SUMMARY JUDGMENTwo Oo TD DH HH BP W WH 10 LAW OFFICES . HAIGHT, BROWN & BONESTEEL, LLP. San Francisco performed. (SSUF No. 6) Plaintiff recalled that he removed Bendix brand brakes from “International truck number one” and he remembers that the shoes were marked "Bendix." (SSUF No. 7) Plaintiffconceded that he has no information that any of the brakes that he took off of "International truck number one" were factory installed original brakes. (SSUF No. 8) Plaintiff recalled that the replacement brakes he installed on "International truck number one" where marked with the name "Bendix" on the shoes and linings. (SSUF No. 9) Plaintiff also testified that he performed clutch work on "International truck number one" but he could not recall how many times. (SSUF No. 10) Plaintiff could not recall the brand name, manufacturer, or supplier of the clutch or transmission components he removed from "International truck number one." (SSUF No. 11) Plaintiff conceded that he has no information that any of the clutch or transmission components he removed from “International truck number one" were factory installed original component parts. (SSUF No, 12) Plaintiff recalled removing the pressure plate, the truck bearing, the fork and the clutch disc from “International track number one." Plaintiff testified that the removed parts were manufactured by BorgWamer. (SSUF No. 13) Plaintiffhas no information that the pressure plate, the truck bearing, the fork and the clutch disc he removed from "International truck number one” were factory installed original parts. (SSUF No. 14) Plaintiff testified that the replacement clutch components he installed on "International truck number one" had the name Borg-Warner written on the clutch disc, (SSUF No. 15) Finally, plaintiff did not recall personally performing or being present while anyone else performed any gasket or muffler work on "International truck number one.” (SSUF No. 16) Plaintiff identified a second International dump truck at Inter-Island which was referred to as “International truck number two" during his deposition. Plaintiff recalled that “International truck number two” was an old dump truck. As with "International truck number one," plaintiff does not know the vintage or year of manufacture of this truck, and does not know what the mileage of the truck was at the time he first worked on 3 VO6-0000502 MEMORANDUM IN SUPPORT OF 3578768.1 MOTION FOR SUMMARY JUDGMENTLAW OFFICES HAIGHT, BROWN: 1 2 3 4 3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 & BONESTEEL, LLP. San Francisco it. (SSUF No. 17) Plaintiff testified that “International truck number two” appeared to be the same model or type as “International track number one.” (SSUF No. 18) Plaintiff testified that he performed at least one brake job on “International truck number two.” (SSUF No. 19) Plaintiff recalled that he removed Bendix brand brakes from “International truck number two” and that "Bendix" was marked on the shoes. (SSUF No. 20) Plaintiff conceded that he has no information that the brakes that he took off of “International truck number two” were factory installed original brakes. (SSUF No. 21) Plaintiff recalled that the replacement brake shoes and linings he installed on “International truck number two” were marked with the name “Bendix.” (SSUF No. 22) Plaintiff could not recall whether he ever performed clutch work, gasket work, muffler or exhaust work or was present when others performed clutch work on “International truck number two.” (SSUF No. 23) Plaintiff is not aware of any other individuals that might have information regarding his work with the two Internationals at Inter-Island and, although plaintiff recalled the names of some of the co-workers he worked with in the early 1960s in the Philippines at Inter-Island, he could not provide any contact information for these individuals and has no information regarding whether any of them are still living, (SSUF Nos. 24-27) Plaintiff remained in the Philippines until 1967 or 1968 when he left to live in the United States. (SSUF No. 28) 2. Alleged International Work While Employed By the East Bay Regional Park District from 1990 to 2007 Plaintiff worked for the East Bay Regional Park District from October 1990 until 2007. (SSUF No. 29) Plaintiff testified that the East Bay Regional Park District had fire trucks. He recalls small pump trucks used for vegetation and "type IV" fire trucks used for forest fires. (SSUF No. 30) Plaintiff worked in a maintenance facility located in Castro Valley and his job duties included repairing and maintaining some of these fire trucks, including fire trucks from the Berkeley, San Ramon and Livermore stations. (SSUF Nos. 31-32) 4 NV¥06-0000502 MEMORANDUM IN SUPPORT OF 3578768.1 MOTION FOR SUMMARY JUDGMENT0 Mm NI DH &— WN Re Re NR NY YN NKR Dm ee Oo QW A BW NH &§ DBD Oo HH IF DH A SP YW Vw S&S LAW OFFICES HAIGHT, BROWN & BONESTEEL, LLP. San Francisco At the Berkeley fire station there were at least four to five fire trucks, and plaintiff testified that at least one of these trucks was an "International type IV." (SSUF Nos. 33- 34) Plaintiff indicated that this "International type IV" fire truck was at the Berkeley station when he began working for the East Bay Regional Park District in 1990. Plaintiff estimated that this track was manufactured in the 1970s but could not say this for certain. Plaintiff does not know the prior maintenance history of this truck. (SSUF Nos. 35-37) Plaintiff personally replaced the brakes on this "International type IV" fire truck on one occasion in approximately 1994. (SSUF Nos. 38-39) Plaintiff recalled that the name "Bendix" was present on the brake shoes and linings he removed from the "International type IV" fire truck. (SSUF No. 40) Plaintiff has no information that the brakes he removed on this single occasion were original to the truck. (SSUF No. 41) His supervisor ordered the replacement parts for the one brake replacement on the "International type IV" fire truck. The parts came in a box and there was a number and brand name on the box. He can not recall the number written on the box, but recalls the brand name written on the box, and on the shoes and linings themselves, was "Bendix." (SSUF Nos. 42-43) Plaintiff's supervisor from this period retired in 2000 and plaintiff has no information regarding how to contact him. (SSUF No. 44) Plaintiff did not identify any other brake, gasket, clutch, or exhaust system work on this “International type IV" fire truck performed by him or others in his proximity. (SSUF Nos. 45-46) Plaintiff testified that there was a second "International type IV" fire truck that was stationed at the Del Valle, Livermore station, however, plaintiff did not identify any brake, gasket, clutch, or exhaust system work on this "International type IV" fire truck performed by bim or others in his proximity. (SSUF Nos, 47-50) Plaintiff testified that there when he first started working at the Castro Valley station in 1990, they had "an old International sewer truck" that may have been manufactured in the 1970s. This was replaced with a newer model International sewer truck in the early 1990s. (SSUF Nos. 51-52) Plaintiff does not recall performing or being present when others performed brake, clutch, gasket or muffler work to the "replacement 3 NV06-0000502 MEMORANDUM IN SUPPORT OF 3578768,1 MOTION FOR SUMMARY JUDGMENTLAW OFFICES HAIGHT, BROWN & BONESTEEL, LLLP. San Francisco International sewer truck." (SSUF Nos. 53-55) Plaintiff does not know the prior maintenance history of the old 1970s International sewer truck. (SSUF No. 56) Plaintiff testified that he “probably” personally performed brake jobs on the "1970s International sewer truck" on two occasions. (SSUF No. 57) Plaintiff recalls seeing the brand name "Bendix" on the shoe and linings of the brakes he removed from the "1970s International sewer truck." (SSUF No. 58) Plaintiff has no information that the brakes he removed from the "1970s International sewer truck" were original factory installed brakes. (SSUF No. 59) Plaintiff's supervisor ordered the replacement brake parts plaintiff installed on the "1970s International sewer truck.” The replacement parts came in a box with the name "Bendix" on the box. The replacements parts themselves had the name "Bendix" on them. (SSUF No. 60) Plaintiff's supervisor from this period retired in 2000 and plaintiff has no information regarding how to contact him. (SSUF No. 44) Plaintiff also testified that he performed gasket work on the sewer pump installed on the back of the "1970s International sewer truck" but conceded that the back part of the truck that included the pump and tank were built by someone other than International. (SSUF No. 61) Plaintiff did not identify any other brake, gasket, clutch, or exhaust system work on this "1970s International sewer truck." (SSUF Nos. 62-63) Plaintiff testified that the East Bay Regional Parks District purchased replacement parts from California Brakes in Hayward, California. Plaintiff personally visited this store to buy replacement Bendix brand brakes during his first three years of employment with the East Bay Regional Parks District. Plaintiff testified that the East Bay Regional Parks District also purchased replacement parts, including replacement brakes, from "Edgewater International." (SSUF Nos. 64-65) According to plaintiff, "Edgewater International” was an "International dealership" located in Hayward. California. Plaintiff never personally went to Edgewater to pick up brake parts for the International trucks he repaired for the East Bay Regional Parks District, however, he believes that during the course of his employment he installed brakes that were obtained from "Edgewater International." 6 : Nv06-0000502 MEMORANDUM IN SUPPORT OF 3578768.1 MOTION FOR SUMMARY JUDGMENTLAW OFFICES: HAIGHT, BROWN & BONESTBEL, LLP. San Francisco (SSUF Nos. 66) Finally, plaintiff conceded that he has no information that brake components ever contained asbestos during the course of his work career. (SSUF Nos. 67) C. Plaintiff's Factually Devoid Written Discovery Responses Plaintiffs standard interrogatory responses do not identify any work done with Navistar original factory installed or Navistar supplied friction products or gaskets. (SSUF No.68) Similarly, plaintiff's responses to Navistar's discovery requests do not identify any work done with Navistar original factory installed or Navistar supplied friction products or gaskets, bat rather, merely state that Pique removed and replaced drum brakes on International Harvester dump trucks and was present when others did the same while employed at Inter-Island Corporation from 1962 to 1964 and lists the names of his co-workers from this location without providing any contact information. (SSUF Nos. 69- 70) In response to Navistar's inspection demand, plaintiff produced no documents that identify-any-work-done with Navistar original factory installed or Navistar supplied friction products or gaskets. (SSUF No. 71) D. Relevant Navistar Product Background At various times Navistar has been a manufacturer in part, assembler and distributor of multi-purpose passenger vehicles, pickup trucks, cab and chassis products, construction equipment and farm equipment, however, Navistar has never manufactured any asbestos- containing products, such as brake linings, clutch driven members and/or gaskets. (SSUF No, 72) Navistar has never specified the materials of which brakes are to be composed to any manufacturer, supplier, or distributor of brakes. (SSUF No. 73) Automotive friction products, such as brake linings, clutch driven members and gaskets, which were incorporated in Navistar’s products and service replacement kits were supplied by third- party companies, entities or individuals. A number of major after-market friction product manufacturers, including after-market gasket manufacturers, have manufactured after- market replacement products that fit Navistar equipment and vehicles. While these replacement parts may have been installed in Navistar equipment and vehicles, they were not manufactured, sold, distributed or supplied by Navistar. (SSUF No. 74) 7 Nv06-0000502 MEMORANDUM IN SUPPORT OF 3578768.1 MOTION FOR SUMMARY JUDGMENTLAW ORFICES. HAIGHT, BROWN & BONESTEBL, LLP. ‘San Francisco Between 1990 and 2007, Navistar, Inc., did not own or operate "Edgewater International" located in Hayward, California. "Edgewater International" was an independent dealership owned and operated by persons, firms, or corporations other than Navistar. (SSUF No. 75) Independent Navistar dealers were not required to stock or distribute only parts supplied by Navistar. Instead, independent Navistar dealers were free to acquire service parts from other manufacturers or distributors consistent with their individual pricing objectives and their particular customer requirements. Replacement service parts for International trucks, were readily available throughout the United States at all times relevant to this litigation from a variety of different manufacturers. For this reason, many Navistar dealers stocked replacement parts for International trucks from suppliers other than Navistar. Therefore, even assuming that the East Bay Regional Park. District obtained parts from an independent Navistar dealer, there is no assurance that those replacement service parts were supplied to the dealer by Navistar. (SSUF No. 76) Finally, Navistar did not manufacture or distribute "International sewer trucks" or "International fire trucks." Navistar did, however, manufacture in part, assemble, and distribute incomplete cab and chassis for subsequent manufacture by body builders and others. Navistar ceased supplying asbestos containing brake components manufactured as original equipment on its cab and chassis products using air brake assemblies in the very early 1990s. Non-asbestos containing friction components were supplied as original equipment for these incomplete vehicles and available as replacement service parts to independent dealers. As a result, independent dealers had both non-asbestos friction components manufactured by others but distributed by Navistar and friction components distributed by persons other than Navistar available for sale. There is no assurance that the service parts allegedly purchased by East Bay Regional Park District either contained asbestos or were distributed by Navistar. (SSUF Nos. 77-78) Ml Mt f/f 8 NV06-0000502 MEMORANDUM IN SUPPORT OF 38787681 MOTION FOR SUMMARY JUDGMENTLAW OFFICES HAIGHT, BROWN, oOo YF TD DH eR fk WwW HY 10 & BONESTEEL, LLP. San Francisco I. LEGAL ANALYSIS A. Summary Judgment Is Appropriate Where The Undisputed Material Facts Demonstrate That The Asserted Causes Of Action Are Without Merit Code of Civil Procedure section 437c authorizes entry of summary judgment or summary adjudication “in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding . .. if all the papers submitted 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.” A motion for summary judgment shall be granted if there is no triable issue and the record establishes that, as a matter of law, plaintiffs cannot prevail on any cause of action. Andrews v. Foster Wheeler (2006) 138 Cal. App.4th 96, 101, citing Code of Civil Procedure § 437c and Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal. App. 4th 64, 69. The defendant is entitled to summary judgment if it shows that one or more elements of the plaintiffs cause of action cannot be established and demonstrates there is no material issue of fact which requires the process of a trial. A defendant does not need. to conclusively negate an element of plaintiff’s case. As restated by the Andrews court: As our Supreme Court has noted, “[s}ummary judgment law in this state, however continues to require a defendant moving for summary judgment to present evidence, and not simply point out that plaintiff does not possess, and cannot reasonabl obtain, needed evidence.” (Aguilar vy. Atlantic Richfiel Company (2001) 25 Cal. 4th 826, 854 [citations omitted] Aguilar), accord Saelzler v. Advance Group 400, supra (2001) 25 Cal.4th 763], 25 Cal.4th at B. 768 [burden shifts to the opposing party “ ‘upon a “showing” that one or more elements of the cause of action cannot be established’”].) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850, fn. omitted.) Andrews, 138 Cal.App.4th at 101! . ' Under Andrews and Aguilar, a defendant may rely on circumstantial evidence, including factually devoid discovery Tesponses, to satisfy its initial burden. Depending upon the circumstances of the case, a defendant may not need to propound special interrogatories or engage in extensive discovery to meet its initial burden of persuasion. See Weber v. John Crane, Inc. (2006) 143 Cal-App.4th 1433, 1442. 9 NV06-0000502 MEMORANDUM IN SUPPORT OF 3578768.1 MOTION FOR SUMMARY JUDGMENTSo Oo NS DR MH B® WY Ne YN NN NY DYN NY Rw Re SE Se Se Se Se Se Se eo YW HD A FF BW NH KF OD BG SC HI KD h BW KB KH OS LAW OFFICES HAIGHT, BROWN & BONESTEEL, LLP. ‘San Francisco Once a defendant establishes a prima facie case for summary judgment, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. In so doing, plaintiffs may not rely on the mere allegations of their complaint to establish causation. Rather, they must “set forth specific facts showing a triable issue of material fact exists as to that cause of action.” Code of Civil Procedure §437(c)(p)(2). The evidence presented “must be of sufficient quality to allow the trier of fact to find the underlying fact [of exposure] in favor of the parties opposing summary judgment.” McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal. App. 4th 1098, 1105, citing Aguilar, 25 Cal. 4th at 850. In negligence and strict production liability claims, a plaintiffs must show exposure to a manufacturer’s originally installed components. In Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal. App. 4th 564, 583, a widow sought damages for decedent’s exposure to asbestos which allegedly occurred while he served in the U.S. Navy. Plaintiff had deposition testimony that decedent had worked in the propulsion compartments on various naval ships and evidence that a number of defendant had supplied machinery aboard the ships. Plaintiff did not have evidence decedent worked on the original asbestos-containing components associated with defendants’ machinery, but argued instead defendant- manufactures had a duty to warn with respect to asbestos-containing replacement components which were manufactured by other companies. The Court of Appeal held, “California case law has not imposed on manufacturers a duty to warn about the dangerous propensities of other manufacturers’ product. California courts will not impose a duty to warn on a manufacturer where the manufacturer's product “did not cause or create the risk of harm.” Taylor, supra, Cal. App. 4th at p. 583 (quoting Garman v. Magic Chef, Ine. (1981) 117 Cal. App.3d 634,638; footnote omitted). Here, plaintiff must establish that Pique's exposure to a product attributable to Navistar was “to a reasonable medical probability a substantial factor in contributing to any asbestos-related disease suffered by him, pursuant to the standard of proof articulated in Rutherford v. Owens-Illinois, Inc. (1997)16 Cal.4th 953, 974-977.” Andrews, 138 Cal.App.4th at 102. In the instant case, plaintiff must proffer evidence that Pique was 10 NV06-0000802 MEMORANDUM IN SUPPORT OF 3578768.1 MOTION FOR SUMMARY JUDGMENTCoC Oo NY HRW F&F WN VN NNR YN NN Ym oe we Se eB Se eB Be ee oa AA BR Ye Be Se SF 6b wR RA A BRB BN BS OD LAW OFFICES HAIGHT, BROWN & BONESTBEL, LLP. San Francisco exposed to asbestos containing component parts that were factory-installed by Navistar or with replacement parts that were supplied by Navistar. Plaintiff can prove neither contention. B. Summary Judgment Is Appropriate Because Plaintiff Cannot Establish at Plaintiff Was Exposed To Asbestos-Containing Components Installed Or Supplied By Navistar. Plaintiff cannot satisfy his burden of proving causation in this case. The admissions contained in plaintiff Godofredo Pique's deposition and in responses to written discovery demonstrate that plaintiff cannot identify any asbestos containing component parts that were factory-installed by Navistar. Likewise, the admissions contained in plaintiff's deposition and in responses to written discovery demonstrate that he cannot identify any asbestos containing replacement parts that were supplied by Navistar, as the source of his alleged exposure to asbestos. Here, as set forth above, Mr. Pique has identified work on two International dump trucks while he was employed by Inter-Island Construction ("Inter-Island") in the Philippines from 1962 to 1964. He also identified work performed to an "International sewer truck" and an “Intemational type IV fire truck" between 1990 and 2007 when he worked for the East Bay Regional Park District. Plaintiff's discovery responses demonstrates that plaintiff has no evidence that Mr. Pique was exposed to asbestos containing materials that were factory-installed by Navistar because he does not know the prior maintenance history of any of these trucks, and he did not identify any of the parts removed from these trucks as "International." Furthermore, Navistar did not manufacture or distribute "fire trucks” or "sewer trucks" beyond the chassis, and therefore, these trucks would have been assembled by other body builders and manufacturers. Even assuming arguenedo that the East Bay Regional Park District obtained replacement parts from "Edgewater International,” this was an independent dealership owned and operated by persons, firms, or corporations other than Navistar. Plaintiff has no facts that can demonstrate that plaintiff ever removed or installed parts obtained from Edgewater International, and no evidence that any service parts allegedly purchased by East Bay iL NV06-0000502 MEMORANDUM IN SUPPORT OF 3878768.1 MOTION FOR SUMMARY JUDGMENTOo Oo YN DU BR WN NR NR KY NY NH BR DR eae Oo ~~ A UW B&B BW NH &—&— SF Oo SB I BD HA PW HY - LAW OFFICES HAIGHT, BROWN & BONESTEEL, L.L.P. San Francisco Regional Park District either contained asbestos or were distributed to Edgewater International by Navistar. As set forth above, plaintiff cannot demonstrate that a triable issue of fact exists with respect to whether Pique was exposed to asbestos containing component parts that were factory-installed or distributed by Navistar. Accordingly, Navistar cannot be liable for plaintiff's asbestos exposure and each of the causes of action that might stem from such exposure. C. Since Plaintiff Cannot Demonstrate That He Was Exposed To Asbestos Containing Products Factory-installed Or Supplied By Navistar, Each Of Plaintiff's Causes Of Action Must Fal. It is axiomatic that if plaintiff cannot show that Navistar caused plaintiff to be exposed to asbestos, Navistar cannot be liable for plaintiff's alleged injuries. As set forth above, plaintiff's evidence is devoid of facts that would demonstrate that he was exposed to asbestos containing component parts that were factory-installed by Navistar or with replacement parts that were supplied by Navistar. Accordingly, on this basis alone, plaintiff's claims for negligence, strict products lability, false representation, and punitive damages must all fail. In addition, some of plaintiff's causes of action must fail for the independent reasons set forth below. 1 Plaintiff Lacks Evidence to Sustain His False Representation Cause of Action. Plaintiff alleges a claim for false representation. A cause of action for false representation requires an affirmative false representation made by a defendant or an agent of the defendant concerning a material fact. In order to prevail, plaintiffs must offer evidence establishing “how, when, where, to whom, and by what means the representations were tendered.” Lazar v. Sup. Ct. (1996) 12 Cal.4® 631,645. In the present case, plaintiff has failed to proffer any information substantiating his false representation claim. (SSUF No, 26.) A plaintiff must also establish that he or she was the actual or intended recipient of the communication containing the representation. See BAJI 12.50. California courts have specifically rejected the “fraud on the market” theory of liability. 12 NV06.0000502 MEMORANDUM IN SUPPORT OF 3978768.1 MOTION FOR SUMMARY JUDGMENTCo Oe SN DBD HW & WB NY ee ae Oo 8 1 DBD A FF WD NY YF S&S LAW OFFICES HAIGHT, BROWN & BONESTEEL, LLLP. ‘San Francisco Mirkin v. Wasserman (1993) 5 Cal.4" 1082. A plaintiff who hears an alleged misrepresentation indirectly must still establish justifiable reliance on it. Gawara v. U.S. Brass (1988) 63 Cal.App.4® 1341. Again, plaintiff has offered no evidence supporting these elements. Plaintiff's discovery responses show that he has no evidence and cannot reasonably obtain evidence supporting a false representation claim. 2. Plaintiff's Lack Clear and Convincing Evidence that Navistar Acted with Malice, Oppression or Fraud. Plaintiff's complaint does not contain any specific factual allegations of oppression, fraud, or malice on the part of Navistar. In order to recover punitive damages under Civil Code section 3294 in a strict liability action, plaintiff must plead and prove “conduct evincing callous and conscious disregard of public safety by those who manufacture and market mass produced articles.” Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 810, These facts are not alleged or present in the instant case. Navistar did not manufacture the friction components and gaskets incorporated into its vehicles. Under these circumstances, there is no basis for the imposition of punitive damages. Even, assuming arguendo, that evidence of liability existed, punitive damages are not warranted since there is no evidence Navistar acted with “oppression, fraud or malice.” As set forth above plaintiff's discovery responses assert only general allegations, not actual evidence, of wrongdoing by Navistar. As in Andrews, supra, plaintiff cannot rely on factually devoid discovery responses to support a claim. Finally, the standard of proof for punitive damages is “clear and convincing evidence.” Civ. Code § 3294(a). Plaintiff has no evidence to support a claim for punitive damages and has not demonstrated that he can obtain evidence to meet the heightened evidentiary burden required for the imposition of punitive damages. Therefore, Navistar is entitled to summary judgment (or summary adjudication) with respect to plaintiffs punitive damage claim. IV. CONCLUSION The undisputed facts demonstrate that plaintiff cannot produce evidence that he was ever exposed to any asbestos-containing product manufactured or supplied by Navistar. 13 NV06-0000502 MEMORANDUM IN SUPPORT OF 3578768. MOTION FOR SUMMARY JUDGMENTOo eC ND A BF WHY N N NY NR NO NR RR Rm ee on? Dh B YW YN |= Soe UN DH BY VY LAW OFFICES HAIGHT, BROWN & BONESTEEL, LLLP. San Francisco Lacking such evidence, plaintiff cannot establish causation between Navistar products and plaintiff's injuries. For the foregoing reasons, Navistar respectfully requests summary judgment be granted in its favor and against plaintiff, or in alternative, summary adjudication in Navistar's favor on plaintiff's claims. Dated: August 28, 2009 HAIGHT, BROWN & BONESTEEL, L.L.P. oe Kb [+ Daniel J. Kelly Gregory J. Thoming Daniel LaCount Attorneys for Defendant NAVISTAR, INC., formerly known as International Truck and Engine Corporation 14 Nvos-cov0se2 MEMORANDUM IN SUPPORT OF 3878768. MOTION FOR SUMMARY JUDGMENT