Motion,Ex Parte: RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al

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Walmvorth,
Franklin,
Bevins &

McCsll, LLP

ATTORNEYS AT LAW

MICHAEL T. MCCALL, State Bar No. 109580

mmecall@wfbm.com
jcomier@e “ CORMIER, State Bar No, 177109 ELECTRONICALLY
jcormier@wibm.com
HILLARY H. HUTH, State Bar No. 215536 FILED.
hhuth@wfbm.com Superior Court of California,
| WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP County of San Francisco
601 Montgomery Street, Ninth Floor JUL 08 2011
San Francisco, California 94111-2612 Clerk of the Court
Telephone: (415) 781-7072 BY: ALISON AGBAY
Facsimile: (415) 391-6258 Deputy Clerk
Attorneys for Defendant
CLEAVER-BROOKS, INC.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

RODRICK BRECKLER and JOANN Case No. CGC-08-274566
BRECKLER,

DEFENDANT CLEAVER-BROOKS,

Plaintiffs, INC.'S MOTION IN LIMINE #7 FOR AN
ORDER PRECLUDING EVIDENCE,
vs. ARGUMENT OR REFERENCE TO
PUNITIVE DAMAGES UNTIL

ASBESTOS DEFENDANTS (B*P), etc., et al., PRELIMINARY FINDING OF MALICE,

FRAUD OR OPPRESSION MADE BY
Defendants. JURY
Trial Date: July 11, 2011
TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF
RECORD:
Defendant CLEAVER-BROOKS, INC. ("Defendant") hereby moves this Court for an order]
in limine precluding plaintiffs, their attorneys, and any witnesses called on their behalf at the time

of trial, from arguing, presenting testimony or other evidence, or otherwise making reference to
punitive damages until a preliminary finding of malice, fraud or oppression is made by the jury|
with respect to Defendant specifically.

This motion is made on the grounds that defendants have an absolute right under both
California statutory and case law to the exclusion of all evidence relating to any claim for punitive
damages unless and until plaintiff proves defendants' liability for actual damages and a jury finding

DEFENDANT CLEAVER-BROOKS, INC.'S WoTioN IN LIMINE #7 FOR AN ORDER PRECLUDING

EVIDENCE, ARGUMENT OR REFERENCE TO PUNITIVE DAMAGES UNTIL PRELIMINARY FINDING OF
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‘Walsworth,
‘Franktia,
Bevins &

‘McCall, LL

ATTORNENS AT LAW

is made as to conduct by this defendant that constitutes “oppression, fraud or malice." Civil Code
sections 3294 and 32945.

Moreover, if plaintiff is permitted to present evidence or argument to the jury about
punitive damages during the initial liability phase of the trial, it will unduly prejudice Defendant,
and will only serve to confuse and mislead the jury into erroneously concluding that they should
include amounts appropriate to punish or otherwise penalize Defendant when in fact their
consideration should be limited to the issue of punitive damages. Evidence Code sections 350-352.

This motion is based on the memorandum of points and authorities filed concurrently
herewith, on the papers and records on file in this action and on such oral and documentary
evidence as may be presented at the hearing of this motion.

L INTRODUCTION

Defendant CLEAVER-BROOKS, INC, ("Defendant") hereby moves this Court for an order
in limine:

1. Excluding all evidence, comments, argument or references relating to plaintiff's
claims for punitive or exemplary damages with respect to defendant or any other defendant unless
and until plaintiffs establish that Defendant is liable for actual damages in this action;

2. Directing plaintiffS, their counsel and any witnesses called on their behalf to abstain
from making any reference to claims, evidence or documents relating to punitive or exemplary
damages with respect to Defendant or any other defendant, unless and until plaintiff have
established: (1) that particular defendant’s liability for actual damages; and (2) a finding by the
jury that the specific defendant's conduct constitutes oppression, fraud or malice within the
meaning of Civil Code sections 3294 and 3295.

This motion is made on the grounds that California law requires that a plaintiff seeking
punitive damages first make a threshold showing of a particular defendant's liability for actual
damages; as well as a predicate jury finding of oppression fraud or malice on the part of that
defendant. Until this mandatory threshold showing is made, any reference to or evidence of a
purported claim for punitive or exemplary damages is irrelevant to plaintiff's claims for actual
damages and unduly prejudicial to defendant, such that it should be excluded.

2-

DEFENDANT CLEAVER-BROOKS, INC.'S MOTION IN LIMINE #7 FOR AN ORDER PRECLUDING
EVIDENCE, ARGUMENT OR REFERENCE TO PUNITIVE DAMAGES UNTIL PRELIMINARY FINDING OF

1315776.11 Moreover, exposing the jury to such evidence before the threshold showing is made would
create a substantial danger of confusing the issues, misleading the jurors as to the applicable}
standard to be applied, and would result in the unnecessary consumption of time. Accordingly,
until and unless plaintiffs proves this particular Defendant’s liability for actual damages, evidence

telating to punitive damages with respect to Defendant must be excluded under Civil Code sections

2

3

4

5

6 | 3294, 3295 and Evidence Code section 352.
7 Defendant therefore respectfully requests that this Court grant the instant motion and issue
8 || an order precluding plaintiff, his attorneys, and any witnesses called on their behalf from present
9 |any testimony or other evidence, comments or references relating to claims for punitive or|
10 | exemplary damages with respect to defendant or any other defendant unless and until plaintiffS
11 establish that Defendant is liable for actual damages in this action; and further present a jury
12 finding that Defendant's conduct with respect to these plaintiffs was sufficient to qualify as
13 | evidence of malice, fraud, or oppression.

14}2. LEGAL ARGUMENT

15 A This Court's Inherent Authority to Regulate the Proceedings Before It]
Supports Granting Defendant's Request.

17 This Court has the inherent power to regulate the order of proof at trial. People v. Wardner
18 | (1969) 270 Cal.App.2d 900, 906. Motions in limine are a favored means to seek exercise of that
19 | authority, in order to preclude parties, their counsel and witnesses from disclosing to prospective
20 I jurors, irrelevant, premature or otherwise inadmissible matters that are so prejudicial or confusing
21 I that their effect cannot be nullified by a subsequent admonition or direction from the court. See
22 || Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669. As one court put it, “[a]
23 | motion in limine is prophylactic in nature, made to exclude evidence before it is offered, to avoid
24 | the obviously futile attempt to “un-ring the bell” in the event that a motion to strike is granted in
25 | the proceedings before a jury.” Stein-Brief Group, Inc. v. Home Indemnity Co. (1998) 65
26 Cal.App.4th 364, 369 (internal quotes and citations omitted).

Walworth, 3.
Bovina DEFENDANT CLEAVER-BROOKS, INC.'S MOTION IN LIMINE #7 FOR AN ORDER PRECLUDING
cee EVIDENCE, ARGUMENT OR REFERENCE TO PUNITIVE DAMAGES UNTIL PRELIMINARY FINDING OF
Ae 1315776.128

‘McCall, LLP
ATTORNEYS AT LAW

In this case, defendants request that the Court exercise its discretion to regulate the order of|
proof at trial so as to exclude any and all evidence of, reference to or comments relating to punitive
damages unless and until plaintiff meets their threshold burden of proof. Punitive damages are
generally disfavored under California law. Beck v. State Farm Mut, Auto. Ins. Co. (1976) 54
Cal.App.3d 347, 355; Rosener v. Sears, Roebuck & Co. (1980) 110 Cal.App.3d 740, 750. Due
process limits both the goal and measure of any punitive damage award. State Farm Mutual|
Automobile Insurance Company v. Campbell (2003) 123 S.Ct, 1513, 155 L.Ed.2d 585.
Accordingly, both statutory and case law require a plaintiff seeking punitive damages to make
certain threshold showings before such claims may go to the jury. As discussed below, all
evidence disclosed to date indicates that plaintiff will never be able to make the threshold showing
required of him, and his punitive damages claims will never reach the jury.

B. This Court Should Not Allow The Admission Of Evidence Related To

Punitive Damages Until After Plaintiff Has Proven Liability For Actual
Damages

The initial threshold showing that a plaintiff seeking punitive damages must establish is
proof of a defendant's liability for actual damages. Courts have held that it is proper to preclude the
admission of any evidence in support of punitive damages until after proof of actual damages has
been established because punitive damages cannot be awarded unless a defendant is liable for
actual damages. “In California, as at common law, actual damages are an absolute predicate for an
award of exemplary or punitive damages.” Kizer v. County of San Mateo (1991) 53 Cal.3d 139,
147.

“[Plunitive damages sometimes may be assessed ... under Civil Code section 3294, so
long as ‘actual, substantial damages’ have been awarded.” [citations omitted]. Potter v. Firestone
Tire & Rubber Co. (1993) 6 Cal.4" 965, 1004 (en banc). The California Supreme Court has long
held the view that actual damages are a predicate for punitive damages. A concise summary was
set forth by the California Supreme Court in Mother Cobb’s Chicken Turnovers, Inc. v. Fox (1937)
10 Cal.2d 203, 205-206, which stated:

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DEFENDANT CLEAVER-BROOKS, INC.'S MOTION IN LIMINE #7 FOR AN ORDER PRECLUDING

EVIDENCE. ARGUMENT OR REFERENCE TO PUNITIVE DAMAGES UNTIL PRELIMINARY FINDING OF
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‘Walsworth,
Franklin,
Bovins &

‘McCall, LLP

ATTORNEYS ASLAW

The foundation for the recovery of punitive or exemplary damages rests

upon the fact that substantial damages have been sustained by the plaintiff.

Punitive damages are not given as a matter of right, nor can they be made the

basis of recovery independent of a showing which would entitle the plaintiff

to an award of actual damages. Actual damages must be found as a

predicate for exemplary damages. (Emphasis added).
Mother Cobb's, supra, 10 Cal.2d at 206. In short, before making a claim for punitive damages,
plaintiff must first lay the foundation for such damages by proving his entitlement to actual
damages as a result of defendant's conduct.

To recover actual damages in this action, plaintiff must prove that: (1) Defendant was
negligent or its products were defective; (2) the negligence or product defect legally and
proximately caused Cecil Stephens’ claimed harm; and (3) the nature and extent of Cecil Stephens’
damages. Romo v. Ford Motor Company (2003) 113 Cal.App.4th 738, 744-45, The rationale is
that a party’s “right of access to judicial . . . bodies to decide controversies is a fundamental

component of our society that cannot be impaired by the threat of punishment or retaliation,” (De

Anza Santa Cruz Mobile Estates Homeowners Association v. De Anza Santa Cruz Mobile Estates
(2001) 94 Cal.App.4th 890, 919), and the right of a defendant, unwillingly haled before judicial
tribunal, to conduct a vigorous defense has long been recognized and protected by California
courts. Bertero v. National General Corp (1974) 13 Cal.3d 43, 52.

Unless and until plaintiff has proven each and every one of these elements, he has not!
established any entitlement to actual damages, which is a necessary predicate for an award of|
punitive damage. Accordingly, any evidence relating to claims of punitive damages as to
defendant should be deferred until this preliminary showing is made by plaintiff.

Cc. Plaintiff Should Not Be Permitted To Present Evidence Relating to Punitive
Damages Unless and Until the Jury Makes a Finding Of Fraud, Malice, Or
Oppression.

Moreover, the second threshold showing that plaintiff must meet before presenting a
punitive damages claim is to obtain a finding by the jury of oppression, fraud or malice on the part
of a particular defendant. This is because an award of punitive damages is not automatic. Rather,
California Civil Code section 3294 requires not only very egregious conduct on the part of the

defendant, but also a considerably higher standard of proof to sustain a finding of punitive

5.
DEFENDANT CLEAVER-BROOKS, INC.'S MOTION IN LIMINE #7 FOR AN ORDER PRECLUDING
EVIDENCE. ARGUMENT OR REFERENCE TO PUNITIVE DAMAGES UNTIL PRELIMINARY FINDING OF
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Bevins &
Meath LLP
ATTORNEYS AT LAW

damages. That section states in relevant part:
“Malice” means conduct which is intended by the defendant to cause injury to the
plaintiff or despicable conduct which is carried on by the defendant with a willful
and conscious disregard of the rights or safety of others.

"Oppression" means despicable conduct that Subjects a person to cruel and unjust
hardship in conscious disregard of that person’s rights.

"Fraud’ means an intentional misrepresentation, deceit or concealment of the

material fact known to the defendant with the intention on the part of the defendant

or thereby depriving a person of property or legal rights or otherwise causing injury.

Civil Code section 3294(c).

In order to award punitive damages under Civil Code section 3294, plaintiff must first prove
"by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or
malice." (Emphasis added.) State Farm Mutual Automobile Insurance Company v. Campbell
(2003) 123 $.Ct.1513, 1514-15, 155 L.Ed.2d 585.

Applying this "clear and convincing" standard of proof, malice can be proven in one of two
ways for purposes of punitive damages. First, plaintiff can attempt to prove Defendant engaged in
conduct with the express intent to injure this particular plaintiff. Civil Code section 3294(c)(1).
This is unlikely, since there is no indication that there was ever any communication between
Defendant and plaintiff, or indeed, that one was aware of the other's existence.

Alternatively, plaintiff can attempt to prove that defendant engaged in “despicable conduct
carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”
Civil Code section 3294(c)(1); Mock v. Michigan Miller’s Mutual Ins. Co. (1992) 4 Cal.App.4"
306, 330-31 (emphasis added). Again, however, there is absolutely nothing in the record to support
any claim that defendant acted in disregard of anyone's rights.

In evaluating plaintiff's showing under the "despicable conduct" standard, it is significant to
note the history of amendments to Civil Code section 3294. After the decision in Rosener v. Sears
Roebuck & Co. (1980) 110 Cal.App.3d 740, 748-749, cited above, the California Legislature
amended Civil Code section 3294 in 1987, to expressly require a more stringent standard to
establish malice. In explaining the legislative reasoning behind that amendment, one court stated:
“the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than

DEFENDANT CLEAVER-BROOKS, INC.'S WoTiON IN LIMINE #7 FOR AN ORDER PRECLUDING

EVIDENCE, ARGUMENT OR REFERENCE TO PUNITIVE DAMAGES UNTIL PRELIMINARY FINDING OF
1315776.128

McCall, LLP
ATTORNEYS AT LAW

a ‘willful and conscious’ disregard for the plaintiff's interest. {After the amendments, the]
additional component of ‘despicable conduct’ must be found.” College Hospital, Inc. v. Superior
Court (1994) 8 Cal.4" 704, 725 (citations omitted).

In evaluating the effect of the 1987 statutory amendments, courts have concluded that the
California Legislature "clearly intended, by these changes, to impose a new statutory limitation on
the award of punitive damages.” Mock v. Michigan Miller's Mutual Ins. Co., supra, 4 Cal.App.4”
at 331. In Mock v. Michigan Miller's, supra, the Court of Appeal addressed former pattern jury
instruction BAJI No. 14.72.1 and approved defining “despicable conduct” as “conduct which is so
vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and
despised by ordinary decent people.” (Emphasis added.)

Here, plaintiff cannot establish malice, oppression or fraud on the part of defendant with,
respect to any conduct relating to its products. Stewart v. Truck Ins. Exchange (1993) 17
Cal.App.4th 468, 477 (holding that even when a jury finds that an insurer acted in bad faith in
dealing with its insured, that still does not equate a finding of malice, fraud or oppression under the
statute). Nor can plaintiff establish that any qualifying conduct by defendant was directed
specifically at plaintiff. As the U.S. Supreme Court emphasized in State Farm Mutual Automobile
Insurance Company v. Campbell (2003) 123 $.Ct.1513, 1523, 155 L.Ed.2d 585, punitive damages
may not be imposed on a defendant for any conduct not directly and specifically directed against
that particular plaintiff.

Here, plaintiff simply has no evidence that defendant acted in a manner that warrants the’
imposition of punitive damages. To the contrary, there is no indication of any interaction between,
defendant and plaintiff, There is no evidence that defendant was even negligent in any respect, let
alone recklessly indifferent or guilty of any act of fraud, oppression or malice. Most importantly,
however, the facts of this case do not rise to the level of clear and convincing evidence of malice,
fraud or oppression as required by Civil Code section 3294(a).

D. Evidence Code Section 352 Requires That Evidence Relating To Punitive
Damages Be Excluded Until After Plaintiff Have Met Their Threshold Burden
of Proof.

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DEFENDANT CLEAVER-BROOKS, INC'S MOTION IN LIMINE #7 FOR AN ORDER PRECLUDING
EVIDENCE, ARGUMENT OR REFERENCE TO PUNITIVE DAMAGES UNTIL PRELIMINARY FINDING OF
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Wateworth,
Franklin,
Bevine &

McCall, LLP
ATTORNEYSAT AW

California Evidence Code section 352 gives trial courts wide berth in matters of evidentiary
admission, including the power to completely exclude evidence “if its probative value is
substantially outweighed by the probability” that the evidence will (1) cause “undue prejudice” or
(2) confuse the issues, (3) mislead the jury or (4) “necessitate undue consumption of time.”
Evidence Code section 352(a) and (b).

The trial court’s discretion to exclude evidence under Evidence Code section 352 is broad
and will not be overturned on appeal absent evidence of abuse of discretion. People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124; Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578. Here,
this Court should exercise its broad discretion to exclude all evidence relating to punitive or
exemplary damages as against defendant, and all references to claims for such damages, because
there is no indication that plaintiff will be able to make the necessary threshold showing before
such evidence can be introduced against this defendant. Moreover, all of the factors set forth in
Evidence Code section 352 weigh against the admission of evidence relating to punitive damages.

First, evidence relating to punitive damages will unduly prejudice the jury against defendant
and the other defendants. Evidence is prejudicial if it evokes an emotional bias against a party
while having very little effect on the issues. People v. Karis (1988) 46 Cal.3d 612, 638.

In this case, evidence that implies oppression, malice or fraud on the part of a defendant is
virtually certain to evoke emotional bias regarding that defendant and potentially the other
defendants as well. That is, if evidence relating to punitive damages is admitted prior to the
determination of liability for actual damages, the jury may be swayed toward finding liability
simply because they fee] that a defendant’s conduct was somehow “wrong” even if the conduct
does not properly support such a finding under the law. Therefore, the admission of such evidence
prior to a finding of liability creates a substantial danger of undue prejudice.

Second, prematurely allowing evidence related to punitive damages could result in an
undue consumption of time. If the issue of punitive damages is heard at the same time as the issue
of actual damages, then the Court, the jury and the parties, will be required to dedicate time to
considering evidence related to punitive damages at the same time as they dedicate time to time to
considering evidence related to actual damages. However, if any of the defendants are found not

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DEFENDANT CLEAVER-BROOKS, INC.'S MOTION IN LIMINE #7 FOR AN ORDER PRECLUDING
EVIDENCE, ARGUMENT OR REFERENCE TO PUNITIVE DAMAGES UNTIL PRELIMINARY FINDING OF

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ATTORNEYS AT LAW

liable for actual damages, then there would be no need to hear evidence related to punitive damages
(as to that defendant) because such damages cannot be awarded. Cheung v. Daley (1995) 35
Cal.App.4th 1673. Thus, allowing evidence of punitive damages during the actual damages phase
will likely result in time be wasted on an issue (punitive damages) that need never be reached,

Third, the premature admission of evidence related to punitive damages is also likely to
confuse the jury by simultaneously placing before it two different issues of liability: liability for
actual damages and liability for punitive damages. Faced with these two liability issues at the same’
time, the jury may mistakenly confuse the factors that go into the punitive damages liability’
determination with the factors that go into the actual damages liability determination.

All told, the undue prejudice, undue consumption of time and confusion of issues caused by
premature admission of punitive damages evidence clearly outweighs the probative value of such
evidence. In short, such evidence has no relevance during the phase in which only actual damages
will be considered because evidence regarding punitive damages has no tendency to prove any
material facts related to the threshold issue of liability for actual damages. Thus, after weighing all
the factors under Evidence Code section 352, evidence related to punitive damages should be

excluded unless and until the jury determines that there is liability for actual damages.

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DEFENDANT CLEA VER-BROOKS, INC.‘S MOTION IN LIMINE #7 FOR AN ORDER PRECLUDING
EVIDENCE, ARGUMENT OR REFERENCE TO PUNITIVE DAMAGES UNTIL PRELIMINARY FINDING OF
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‘Waisworth,
Franklln,
Bevins &

‘McCall, LLP

ATTORNEYS AT LAW

3. CONCLUSION
Based on the foregoing, Defendant respectfully requests that this Court issue an order
precluding plaintiffS, plaintiffS' counsel and any witnesses called on her behalf from arguing,
making reference to, presenting testimony or other evidence of, or otherwise pursuing any claim for
punitive damages until (1) plaintiffS first establish Defendant's liability for actual damages with
respect to these plaintiffs; and (2) a jury makes a preliminary finding of malice, fraud, or
oppression on the part of Defendants.
Dated: July 8, 2011 WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP
By: N Wuto~.

MICHAEL T. MCCALL

JENNIFER A. CORMIER

HILLARY H. HUTH

Attorneys for Defendant

CLEAVER-BROOKS, INC.

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DEFENDANT CLEAVER-BROOKS, INC.'S MOTION IN LIMINE #7 FOR AN ORDER PRECLUDING
EVIDENCE, ARGUMENT OR REFERENCE TO PUNITIVE DAMAGES UNTIL PRELIMINARY FINDING OF
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