Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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Walsworth,
Franktin,
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AFrousey Sa LAW

JENNIFER A. CORMIER, State Bar No. 177109
jcormier@wfbm.com
HILLARY H. HUTH, State Bar No. 215536
hhuth@wibm.com ELECTRONICALLY
WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP FILED
601 Montgomery Street, Ninth Floor Superior Court of California,
San Francisco, California 94111-2612 County of San Francisco
Telephone: (415) 781-7072
Facsimile: (415) 391-6258 FEB 20 20 113

BY: CAROL BALISTRERE
Attorneys for Defendant Deputy Clerk
DURO DYNE CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY FOR SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731

Plaintiffs, Date: May 8, 2013
Time: 9:30 a.m.
v. Dept.: 503
Judge: Hon. Teri L. Jackson
C.C, MOORE & CO, ENGINEERS; et al.,
MEMORANDUM OF POINTS AND
Defendants. AUTHORITIES IN SUPPORT OF
DEFENDANT DURO DYNE
CORPORATION’S MOTION FOR
SUMMARY ADJUDICATION OF
PLAINTIFFS' CLAIM FOR PUNITIVE
DAMAGES

Defendant Duro Dyne Corporation (“Duro Dyne”) respectfully submits the following points
and authorities for consideration by the Court in support of the attached Motion for Summary
Adjudication of Plaintiffs' Claim for Punitive Damages.

1 INTRODUCTION AND SUMMARY OF ARGUMENT

In this personal injury case, plaintiffs claim that Robert Ross (“plaintiff”) developed an
asbestos-related disease from occupational asbestos exposures, Plaintiffs sued several defendants,
including Duro Dyne, for negligence and strict liability. Plaintiffs generally seeks punitive
damages against defendants including Duro Dyne.

To prevail on their punitive damages claim against Duro Dyne, plaintiffs must present clear

and convincing evidence that a Duro Dyne officer, director or managing agent engaged in

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DURO DYNE
CORPORATION’S MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS‘ CLAIM FOR PUNITIVE

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oppression, fraud or malice or authorized or ratified such wrongful conduct. However, to date,
plaintiffs have failed to produce any evidence demonstrating that Duro Dyne engaged in conduct
which would entitle plaintiffs to punitive damages. Specifically, plaintiffs have wholly failed to
identify any specific fact, witness or document, specific to Duro Dyne, to sustain their punitive
damages claim against Duro Dyne. As such, Duro Dyne is entitled to summary adjudication as to
plaintiffs’ punitive damages claim.
2. STATEMENT OF FACTS

On December 30, 2011, Robert Ross and Jean Ross (“plaintiffs”) amended their Second
Amended Complaint for personal injury and loss of consortium in California Superior Court for the
County of San Francisco alleging that Robert Ross (“plaintiff”) developed an asbestos-related
illness from asbestos exposure through the actions of various defendants to substitute Duro Dyne
for “Doe” defendants 13 and 1013. (Separate Statement of Undisputed Material Facts (“Sep.
Sunt.”), Fact 1.) Plaintiffs allege that plaintiff sustained injury as a result of asbestos exposure and
asserts causes of action for negligence and strict liability as well as punitive damages as to all
defendants. (Sep. Stmt., Fact 2.) On March 2, 2012, Duro Dyne answered the causes of action
alleged against Duro Dyne contained in plaintiffs’ complaint. (Sep. Stmt., Fact 3.)

On April 9, 2012, Duro Dyne served plaintiffs with a set of 33 Special Interrogatorics.
(Sep. Stmt., Fact 4.) Plaintiffs claim Mr. Ross was exposed to asbestos from products manufactured
by Duro Dyne when he worked as an insulator at various jobsites between 1967 and 1977. (Sep.
Stmt., Fact 5.) Duro Dyne asked plaintiffs to identify all witnesses who support their claim for
punitive damages. In response, plaintiff identified himself and Persons Most Knowledgeable of Duro
Dyne, past and present. (Sep. Stmt., Fact 6.) Although requested, plaintiffs failed to identify the
contact information for any alleged witness with information to support their punitive damages claim
as they did not identify any specific living witnesses other than Mr. Ross. (Sep. Stmt., Fact 7.)

Duro Dyne asked plaintiffs to describe each alleged violation of any statute, ordinance or
regulation by Duro Dyne, but in response plaintiffs listed all applicable statutes, ordinances and
regulations without providing any specific information regarding the alleged violations. (Sep. Stmt.,

Fact 8.) Although asked, plaintiffs failed to identify by name and titled the person who violated any

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statute, ordinance or regulation, and the specific conduct in violation of the statute. (Sep. Stmt., Fact
9.) Although asked, plaintiffs failed to identify by name and title each officer or agent of Duro Dyne
who plaintiffs claim had advanced knowledge and acted in conscious disregard such that plaintiffs
are entitled to punitive damages. (Sep. Stmt., Fact 10.)

Although requested, plaintiffs failed to identify any specific documents which support their
claim for punitive damages against Duro Dyne, and instead include a laundry list of documents

allegedly relevant to the case as a whole. (Sep. Stmt., Fact 11.) Although requested, plaintiffs

8 || failed to identify by name and title the officer, director agent of Duro Dyne who made any

representations to plaintiff regarding the safety of any Duro Dyne products. (Sep. Stmt., Fact 12.)

Plaintiffs did not provide any specific facts or details that supports their punitive damages
claim; that Duro Dyne engaged in deceptive acts to plaintiff’s detriment or in conscious disregard
of his safety; or that Duro Dyne failed to warn plaintiff of any dangers or hazards that Duro Dyne
knew of at the time of plaintiff's exposure. (Sep. Stmt., Fact 13.)

On April 9, 2012, Duro Dyne served plaintiffs with Requests for Production of Documents.
(Sep. Stmt., Fact 14.) Requests for Production Nos. 15 through 22 request that plaintiffs produce
any and all documents that support their contention that Duro Dyne either acted in conscious
disregard of his safety or support his cause of action for fraud, conspiracy and/or concert of action
that entitles plaintiffs to punitive damages from Duro Dyne. (Sep. Stmt., Fact 15.) In response to
Requests for Production Nos. 15 through 22, plaintiffs referred to their response to Request for
Production No. 1, which stated a generic laundry list of documents that purportedly support all of
their claims, but failed to actually identify any specific document that supports their claim for
punitive damages. (Sep. Stmt., Fact 16.)

On April 9, 2012, Duro Dyne served plaintiffs with Judicial Council Form Interrogatory
17.1. Form Interrogatory 17.1(b)-(d) requires plaintiffs to state all facts, witnesses, and documents
serving as the basis to all Requests for Admission responses which do not amount to an unqualified
admission. (Sep. Stmt., Fact 17.) In response to Duro Dyne’s Form Interrogatories, plaintiffs’
responses consisted of a restatement of the allegations contained in their responses to Special

Interrogatories. Although Form Interrogatory 17.1(b) seeks facts, plaintiff's responses supplied

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3413-329411 |[little more than hyperbolic accusation and bald assertions. In a conclusory fashion, plaintiffs insist
2 | that Duro Dyne knew of the potential hazards associated with asbestos, but intentionally failed to
3 | warn plaintiff. Plaintiffs submit no factual support for this position. Moreover, the numerous
4 | articles and studies that plaintiffs cite relating to heath hazards associated with exposure to asbestos
5 | which have appeared in the medical and scientific literatures since the turn of the century are not
identified, specified or defined. (Sep. Stmt., Fact 18.)

In response to Duro Dyne’s comprehensive written discovery efforts, plaintiffs have

6
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8 | provided no admissible evidence which supports their claim for punitive damages against Duro
9} Dyne. (Sep. Stmt., Fact 19.)

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3. LEGAL ARGUMENT

1 A. The Court May Properly Dispose of Plaintiffs’ Punitive Damages Claim.
2 Code of Civil Procedure section 437¢(p)(2) provides:
3 A defendant . . . has met his or her burden of showing that a cause of action
has no merit if that party has shown that one of more elements of the cause
4 of action, even if not separately pleaded, cannot be established, or that there
15 is a complete defense to that cause of action. Once the defendant . . . has
met that burden, the burden shifts to the plaintiff. . . to show that a triable
6 issue of one or more material facts exists as to that cause of action of a
defense thereto. The plaintiff... may not rely upon the mere allegations or
7 denials of its pleadings to show that a triable issue of material facts exists
but, instead, shall set forth the specific facts showing that a triable issue of
8 material fact exists as to that cause of action or a defense thereto.
19 (Emphasis Added).
20 Although Code of Civil Procedure section 437c(p)(2) applies to motions made to

21 | summarily adjudicate causes of action, the burden-shifting paradigm and evidentiary requirements
22 | are instructive for motions made to summarily adjudicate damages claims.

23 Duro Dyne may prevail on summary adjudication by showing that an essential element

24 | "cannot be established' by pointing to an absence of evidence to support this element." (Hunter v.
25 || Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1288 (citing to Code Civ, Proc.

26 | $4370(0)(2) (italics in original).) Moreover, Duro Dyne is not required to affirmatively disprove
27 | plaintiff's claims. (Hunter v. Pac. Mech. Corp., (1995) 37 Cal.App.4th 1282 (overruled in part on

2g || other grounds).) In fact, Duro Dyne, as the moving party “need not affirmatively prove anything . .

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT DURO DYNE
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. itis enough to show that there is insufficient evidence . . . favorable to the plaintiff, to establish a
necessary element of the cause of action.” (Browne v. Turner Construction Co., et al., (2005) 127
Cal.App.4th 1334, 1340.)

B. Plaintiffs’ Punitive Damages Claim Against Duro Dyne Is Without Merit and
Fails As A Matter Of Law.

a. Punitive Damages Are Generally Disfavored

The Court must evaluate the requirements for creating a triable issue with respect to
punitive damages strictly, because punitive damages are disfavored in California, and should be
viewed "with the greatest of caution." (Beck v. Slate Farm Mut. Auto, Insur, Co. (1976) 54
Cal.App.3d 347, 355; Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 9.) It is a well-
established principle that punitive damages pose an unappealing remedy because they represent a
windfall, which creates an anomaly of excessive compensation. Rosener v. Sears, Roebuck & Co.
(1980) 110 Cal.App.3d 740, 750. For this reason, punitive damages are typically reserved for only
the most egregious conduct when punishment or determent is demanded. 5 Witkin, Summary of
Calif. Law (9th ed.) Torts, § 1327.

The prospect of a punitive damages award dramatically affects the course of litigation
because the amount can have a debilitating effect on a defendant. Therefore, the allowance of such
damages merits cautious application. It is incumbent upon courts to filter undeserving claims of
punitive damages. If there is absolutely no evidence to support such a claim, as it appears in this
case, the defendant should not be burdened with having to address those non-issues. Instead, the
courts should negate the need to expend such time, effort, and expense.

b. Plaintiffs’ Punitive Damages Claim Against Duro Dyne Fails As A Matter of
Law

Civil Code § 3294(a) sets forth the prerequisite for imposition of punitive damages:

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.
(Emphasis Added).

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Therefore, in a tort action such as the case at bar, a jury must be able to find clear and
convincing evidence that a defendant acted with oppression, fraud, or malice in order for a plaintiff
to recover punitive damages. Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 58, 60-61. In
an effort to preemptively resolve any ambiguities associated with these terms Civil Code § 3294(c)
provides the following definitions:

(1) “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.

(2) “Oppression” means despicable conduct that subjects a person to
cruel and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the intention on
the part of the defendant of thereby depriving a person of property or legal
rights or otherwise causing injury.

Inherent in each of these definitions is an element of intent which plaintiffs must prove to
successfully prevail on a claim for punitive damages. The converse of this pretext is that simple
actions of negligence are generally not subjected to punitive damages. See, e.g Lee v. Bank of
America (1990) 218 Cal.App.3d 914, 920. This conception of punitive damage application
conforms to goals of punishment and determent. In the event of an accident, where a party acted
without any degree of intent, let alone a reprehensible one, the objective of punitive damages are
not served. In a general discussion of these concepts, the court in Ebaugh v. Rabkin (1972) 22
Cal.App.3d 891, 894-895, observed that:

The cases interpreting section 3294 make it clear that in order to
warrant the allowance of punitive damages the act complained of
must not only be willful in the sense of intentional, but it must also
be accompanied by aggravating circumstances, amounting to
malice. The malice required implies an act conceived in a spirit of
mischief or with criminal indifference towards the obligations owed
to others .. . Mere spite or ili will is not sufficient; and mere
negligence, even gross negligence is not sufficient to justify an
award of punitive damages. [Citations omitted, emphasis in
original. The cases also point out that the only form of malice
contemplated by Civil Code section 3294, which creates the right to
exemplary damages, is malice in fact. [Citations omitted; emphasis
in original.] Under general definition, malice in fact denotes ill will
on the part of the defendant, or his desire to do harm for the mere
satisfaction of doing it. In the ultimate analysis, malice in fact is
malice of evil motive. [Citation omitted.]

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This sentiment was later echoed in Taylor v, Superior Court (1979) 24 Cal.3d 890, 894-895
Where the defendant’s wrongdoing has been intentional and
deliberate, and has the character of outrage frequently associated
with crime, all but a few courts have permitted the jury to award in
the tort action “punitive” or “exemplary” damages . .. Something
more than the mere commission of a tort is always required for
punitive damages. There must be circumstances of aggravation or
outrage, such as spite or malice, or a fraudulent or evil motive on
the party of the defendant, or such a conscious and deliberate
disregard of the interests of others that his conduct may be called
willful or wanton.

Despite these seemingly universal requirements that a defendant may only be subjected to
punitive damages if his behavior amounts to something more deserving than mere negligence,
plaintiffs in the current action seek punitive damages against Duro Dyne, even though there is no
evidence whatsoever that Duro Dyne acted with malice, oppression or fraud. In light of the case
law and the lack of evidence presented on this issue by plaintiffs, plaintiffs’ punitive damages
claim against Duro Dyne must fail.

The ambiguity of plaintiffs’ claim is highlighted by the fact that, to date, they have not
provided any concrete, clearly articulated basis for their punitive damages claim against Duro
Dyne. Thus, it is uncertain whether the following discussion should be focused on “malice,”
“oppression,” or “fraud.” Plaintiffs also claim in their responses to Duro Dyne’s written discovery
that Duro Dyne knew that asbestos could cause injury or death but they provide no basis for such
an allegation. Plaintiffs contend that Duro Dyne marketed and distributed asbestos-containing
products despite said knowledge, but again they provide no evidence to support such an assertion.
Furthermore, plaintiffs’ response is ambiguous in that it does not specify or give details about the
alleged conduct on the part of Duro Dyne employees which was willful, malicious, or done with a
wanton disregard for plaintiff's safety, As discussed above in the Statement of Relevant Facts
section, plaintiffs’ responses are devoid of any facts, documents or witnesses regarding the alleged
behavior that rises above mere negligence of Duro Dyne employees which support plaintiffs’
contentions. Thus, plaintiffs’ claims in this regard are based on mere speculation and bald
assertions.

Plaintiffs’ brief and veiled allusions towards punitive damages do not appear to be based on

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CORON ORNS MOTION FOR SUMMARY ADIUDICATION OF PLAIN TIFTS" CLAIM FOR PUNITIVE

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3413-3,29411 | the notion of intentional, willful, or affirmative conduct by Duro Dyne. Rather, it seems that

2 | plaintiffs anchor their punitive damages claim against Duro Dyne on the allegation that Duro Dyne
3 || fraudulently concealed a known risk by failing to warn plaintiff of the potential health hazards

4 | associated with asbestos. As discussed supra, in any event, plaintiffs have not set forth any

5 | admissible evidence that Duro Dyne engaged in conduct which warrants imposition of punitive
damages. Rather, they attempt to satisfy their burden through speculation, In Kendall Yacht Corp.
v. United California Bank (1975) 50 Cal.App.3d 949, 958, the court declared that “[a]n award of
exemplary damages cannot be based on mere speculation; it depends instead on a definite showing
of a willingness to vex, harass or injure consistent with a wrongful intent to injure.” Plaintiffs have

10 | made no such showing for the reasons discussed above.

11 Cc. Duro Dyne Cannot be Held Liable for Punitive Damages Because There is No
Evidence to Establish That a Duro Dyne Officer, Director or Managing Agent

12 Engaged in Oppression, Fraud or Malice, or Authorized or Ratified Any Such
Wrongful Conduct.

13

Civil Code section 3294provides in pertinent part:

(a) In an action for the breach of an obligation not arising from contract,
15 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

16 actual damages, may recover damages for the sake of example and by way of

17 punishing the defendant.

18 (b) . .. With respect to a corporate employer, the advance knowledge and
conscious disregard, authorization, ratification or act of oppression, fraud, or

19 malice must be on the part of an officer, director, or managing agent of the

20 corporation.

2 As such, to substantiate an award for punitive damages against a corporate entity such as

3 || Duro Dyne, plaintiffs must show that an officer, director or managing agent of Duro Dyne engaged
93 | in oppression, fraud or malice, or authorized or ratified such wrongful conduct. (Civ. Code, §

4 3294(b).) This is because "[aJn award of exemplary damages cannot be based on mere speculation;
it depends instead on a definite showing of a willingness to vex, harass or injure consistent with a
wrongful intent to injure." (Kendall Yacht Corp. v. United California Bank (1975) 30 Cal.App.3d
949, 958.)

Here, plaintiffs have not identified or produced any evidence, much less clear and

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convincing evidence, to substantiate his claim that Duro Dyne ever disregarded Mr. Ross’ interests
such that its conduct could be characterized as willful or wanton, Duro Dyne propounded
comprehensive discovery to determine the basis for plaintiffss punitive damages claim. However,
plaintiffs have identified no specific witnesses or corporate documents such as minutes or internal
memorandums that would establish, by clear and convincing evidence that an officer, director or
managing agent of Duro Dyne acted with malice, oppression or fraud towards Mr. Ross. Other
than baseless allegations and a laundry list of generic documents and persons, plaintiffs have
provided no evidence to support their claim for punitive damages. By providing zero evidence
against Duro Dyne, plaintiffs’ claim for punitive damages must be summarily adjudicated.

dD. Duro Dyne Has Shifted the Burden to Plaintiffs to Prove Their Punitive
Damages Claim by Clear and Convincing Evidence.

As stated above, plaintiffs have not set forth any evidence, much less clear and convincing
evidence that Duro Dyne engaged in conduct which warrants imposition of punitive damages.
Rather, plaintiffs attempt to satisfy their burden through improper speculation. In Kendall Yacht
Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958, the court declared that “[a]n
award of exemplary damages cannot be based on mere speculation; it depends instead on a definite
showing of a willingness to vex, harass or injure consistent with a wrongful intent to injure.”

A defendant moving for summary adjudication “must only show that one or more elements
of the cause of action...cannot be established by the plaintiff.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 853.) The burden will shift to a plaintiff who provides factually devoid
discovery responses, which seek all facts establishing liability against a defendant. (Andrews v.
Foster Wheeler, LLC (2006) 138 Cal.App.4th 96, 104-105; McGonnell v. Kaiser Gypsum
Company, Inc. (2002) 98 Cal.App.4th 1098, 1104.)

The plaintiffs in Andrews filed a product liability cause of action against an equipment
manufacturer for allegedly causing plaintiff's asbestos-related disease. One of the defendants,
Foster Wheeler, filed a motion for summary judgment contending that plaintiffs had no evidence
that plaintiff was exposed to asbestos from any Foster Wheeler equipment. (Andrews v, Foster

Wheeler, LLC (2006) 138 Cal.App.4th 96, 99.) Foster Wheeler pointed to the fact that “[Plaintiff]

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had admitted in deposition that he had no knowledge-of Foster Wheeler, of having worked with or
in the presence of anyone working with Foster Wheeler products, or of ever being exposed to
asbestos as a result of any action by or interaction with Foster Wheeler.” (/d.) Foster Wheeler also
maintained that “Plaintiffs did not identify any facts supporting their claim in their answers to
Foster Wheeler's special interrogatories, which sought all of plaintiffs’ knowledge about,
[Plaintiff's] exposure to-asbestos from Foster Wheeler products.” (f.) The trial court, and later
the appellate court, found that “Foster Wheeler had met its initial burden of demonstrating that

plaintiffs were aot in possession of any evidence to support their claim and had thus failed to. meet

their burden of presenting admissible evidence that created a triable issue of material fact” and

granted Foster Wheeler summary judgment. (/d. at p. 100.)

Similar to Andrews, plaintiffs” factually devoid discovery responses in this. case illustrate
their inability to identify any specific fact, witness-and/or document supporting their punitive
damages claim against Duro Dyne. Therefore, Dura Dyne has shown that plaintiffs have not and
cannot identify any evidence in support of their claim for punitive damages. ‘Specifically, Doro
Dyne has successfully made an affirmative showing that shifts the burden to plaintiffs to establish a
triable issue of fact regarding their punitive damages claim against Duro Dyne in this case, In light
of the fact that plaintiffs have not yet been.able to produce a triable issue of fact as to punitive
damages to. date, there is no reason to believe that they will do so before trial. Consequently,
plaintiffs’ claim against Duro Dyne for punitive damages must be summarily adjudicated.

4 CONCLUSION

Based on the above, Duro Dyne respectfully requests that the Court grant its Mation for
Summary Adjudication on the issue of punitive damages,

Dated: February 19,2013 WALSWORTH, FRANKLIN, BEVINS & MeCALL, LLP

IFER A, CORMIER
HILLARY H. HUTH
Attorneys for Defendant
DURO DYNE CORPORATION

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WEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEPENDANT DURO-DYNE
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PROOF OF SERVICE

Tam eniployed in the County of San Francisco, State of California. Tam over the age of 18
and not a party lo the within action, My business address is 601 Montgomery Street, Ninth Floor,
San Francisco, California 94111-2612.

On February 20, 2013, Lserved the within document(s) described as:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
DURO DYNE CORPORATION’S MOTION FOR SUMMARY ADJUDICATION OF
PLAINTIFFS' CLAIM FOR PUNITIVE DAMAGES

on the interested parties in this action as stated below:

Brayton Purcell LLP ALL DEFENSE COUNSEL
222 Rush Landing Road

| P.O. Box 6149

Novato, CA 94948

(BY ELECTRONIC FILING/SER VICE) I provided the document(s) listed above
electronically to the LexisNexis File & Serve Website to the parties on the Service List
maintained on the LexisNexis File & Serve. Website for this case. If the document is
provided to LexisNexis electronically by 5:00 p.m., then the document will be deemed
served on the date that it was provided to LexisNexis. A copy of the "LexisNexis File &
Serve Filing Receipt” page will be maintained with the original document(s) in our office.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true.and correct.

Executed on February 20, 2013, at San Francisco, California.

__.duvily P, Catig i
(Type or print.name)

coe -li-

ap SORPORATION'S MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS’ CLAIM FOR PUNITIVE
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