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Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
ROGER M. MANSUKHANI (SBN: 164463)
STEVEN SOBEL (SBN: 177210)
MATTHEW A. MASON (SBN: 228056) ELECTRONICALLY
K.C. SWISHER (SBN: 245238) FILED
GORDON & REES LLP Superior Court of California,
101 W. Broadway, Suite 2000 County of San Francisco
San Diego, CA 92101
Telephone: (619) 696-6700 SEP a 5 20 10
Facsimile: (619) 696-7124 BY: ALISON AGBAY
Deputy Clerk
Attorneys for Defendant
HENNESSY INDUSTRIES, INC.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ANTHONY CONTE, ) CASE NO. CGC-09-275046
)
Plaintiff, ) Complaint filed: 01/30/09
)
vs. ) DEFENDANT HENNESSY
) INDUSTRIES, INC.’S SUPPLEMENTAL
ASBESTOS DEFENDANTS (BP) As ) REPLY TO PLAINTIFFS
Reflected on Exhibits B, B-1, C, F, G; and ) SUPPLEMENTAL OPPOSITION TO
DOES 1-8500; and SEE ATTACHED LIST. ) DEFENDANT’S MOTION FOR
\ JUDGMENT ON THE PLEADINGS
)
) [Filed and served concurrently with
} Declaration of K.C. Swisher and Exhibits
)_Attached Thereto 0
)
} Date: Under Submission
) Time: 9:30
) Judge: Hon. Harold E. Kahn
) Dept: 220
)
Pursuant to this Court’s order, Defendant Hennessy Industries, Inc. (“Hennessy”) hereby
respectfully submits its supplemental reply to Plaintiff's supplemental opposition to Hennessy’s
Motion for Judgment on the Pleadings on the limited issue of whether leave to amend should be
granted. In accordance with this Court’s order, this supplemental reply was filed and served via
Lexis on September 15, 2010 and this matter is now under submission.
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DEFENDANT HENNESSY INDUSTRIES, INC,’S SUPPLEMENTAL REPLY TO PLAINTIFF’S
SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
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MEMORANDUM OF POINTS AND AUTHORITIES
1 INTRODUCTION
Plaintiff's proposed amended complaint makes clear that Plaintiff cannot state a cause of
action against Hennessy. No magic words that Plaintiff can use will create liability under
California law where none exists. Indeed, as highlighted by Plaintiff's own allegations,
Plaintiff's claims against Hennessy fail as a matter of law for three independent reasons.
i. Plaintiff does not and cannot allege that Hennessy’s arcing machine contained the
asbestos which proximately caused his injury (just as in Taylor v. Elliot Turbomachinery Co.
(2009) 171 Cal.App.4th 564). Hennessy cannot be held liable for injuries proximately caused by
the asbestos-containing products of others. (ébid.)
2. Plaintiff does not and cannot allege that asbestos contained within brake linings
manufactured by others was only dangerous when used with Hennessy’s grinding machine (just
as in Garman v. Magic Chef, Inc. (1981) 117 Cal.App.3d 634 and as opposed to Tellez-Cordova
y. Campbell-Hausfeld (2004) 129 Cal.App.4th 577}. Rather, Plaintiff specifically alleges that:
“Before, during and after inspection of worn brake products, decedent was exposed to asbestos
from said products. (Ex. A at 63:3-9.] As Plaintiff's own Complaint admits, “manipulation and
removal of the asbestos-containing [brake shoes] at issue here would have presented a
S| danger, whether they were sed in Combination with [Defendant’ s pritiding machine}; some
other type of equipment, or even all by themselves. (Taylor, supra, 171 Cal.App.4th at 587-
587.) The fact that Plaintiff was exposed to the toxin (asbestos) without the necessary use of the
Hennessy’s “instrumentality” (the grinding machine) is precisely the same fact that the Tellez-
Cordova court used to distinguish itself from Garman (and thus, this matter). As the Telfez-
Cordova court would agree, Hennessy cannot be liable for the asbestos-containing products of
others that expose a user to harm when used with a number of instrumentalities or even all by
themselves.
3. Plaintiff does not and cannot allege that the asbestos-containing brake linings are
“necessary attachments” that join with Hennessy’s grinding machine to form one complete
system (as opposed to Tellez-Cordova). The lesson from Te/lez-Cordova, in a Garman factual
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DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF'S
SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
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situation, is that there is no liability unless the instrumentality is a precondition of — and a
necessary component to -- the defect which causes the injury. Here, Plaintiffs proposed
amendment once again alleges that the brake shoes and the arcing machine are two separate
products, one inherently dangerous and one not, that are used in conjunction with each other.
Plaintiff cannot allege that the grinding machine is a necessary component to the brake shoes.
Despite being given the opportunity to do so, Plaintiff does not and cannot allege that
Hennessy manufactured the asbestos “brake products that caused Plaintiff's injuries.” All the
“semantic nonsense” in the world will not change this result: Plaintiffs proposed amended
complaint fails to state a cause of action against Hennessy and leave to amend should be denied.
Il. SUMMARY OF RELEVANT ALLEGATIONS
The only causes of action for which Plaintiff seeks leave to amend are the fourteenth and
fifteenth causes of action for “Asbestos Brake Shoe Grinding Machine” Negligence and Strict
Liability. {Ex. B.] Once again, however, Plaintiff's proposed amendments to these causes of
action does not allege that Hennessy’s grinding machine contained asbestos. Rather, as with the
original complaint, Plaintiffs allege that:
[Defendant} knew or should have known and intended that the aforesaid asbestos
brake shoe grinding machines ...would be used by consumers...including the
decedent herein, in conjunction with asbestos-containing brake linings...”
{Ex. B at 2:26-3:2 (emphasis added).}' eee
Based upon their allegation that it was foreseeable and intended that the grinding
machine would be used in conjunction with asbestos-containing brake linings, Plaintiff allege:
[Defendant] faited to protect users...including the Plaintiff herein, who were in
proximity to said asbestos brake shoe grinding machines and related products and
equipment...from exposure to and inhalation and ingestion of asbestos fibers
caused to be released from asbestos-containing brake lining...
[Ex. B at 2:19-23 (emphasis added).]
Plaintiff's proposed amendment proceeds to state how Defendant should have altered its
machine to accommodate for the asbestos contained within brake shoes manufactured by others:
" At this point in the briefing of this matter, Hennessy will only quickly note, once again, that this is precisely the
same contention alleged by the unsuccessful plaintiffs in Taylor. (See Taylor, supra, 171, Cal.App.4th at 372-573).
DEFENDANT HENNESSY INDUSTRIES, INC,’S SUPPLEMENTAL REPLY TO PLAINTIFF'S
SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
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Said machines could have been designed and built with features that would have
prevented humans from exposure to asbestos made airborne by the machines.
These design failures include, without limitation, failure to have effective dust
collection systems that would have prevented wholesale asbestos-fiber release and
worksite contamination causing humans to be exposed to the airborne asbestos
fibers...
[Ex. B. at 3:26-4:7.]
While these allegations are admittedly specific, what is missing from this paragraph (and
indeed the entire complaint) is an allegation that the asbestos contained within the brake linings
was only dangerous when used with Hennessy’s grinding machine. More importantly, Plaintifi’s
specific allegations in other portions of their Complaint completely foreclose any such inference.
Indeed, Plaintiff specifically allege -- in two different places -- that:
Before, during and after inspection and replacement of worn brake products,
decedent was exposed to asbestos from said products. Producers of the brake
products that caused Plaintiff’s injuries as hereinafter set forth cannot presently
be identified, through no fault of Plaintiff.
[Ex. A at 63:3-9; 66:24-27 (emphasis added).]
Finally, the proposed allegations also include the word “asbestos” in several places as an
adjective to describe the brake shoes that were grinded by the machines. [See Ex. B at 1:11,
1:17-18 & 1:26-17, etc.] These words are just bells and whistles utilized by Plaintiff to distract
from the absence of substantive allegations that wotld state'a cause of action against Hennessy.
Wi. ARGUMENT
A. Leave to Amend is Properly Denied Where the Issue is a Legal One Which
Cannot Be Remedied by Pleading Additional Facts
While leave to amend can be granted when the issue with a plaintiffs pleading is the
failure to allege sufficient facts to state a cause of action, such is not the case when the issue
raised by the pleading is a legal one. (Schonfeldt v. State of Calif: (1998) 61 Cal.App.4th 1462.)
Indeed: “Leave to amend should be denied where...the nature of the claim is clear, but no
liability exists under substantive law.” (Lawrence vy. Bank of Am. (1985) 163 Cal.App.3d 431,
436 (emphasis added).)
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DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF’S
SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
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Such is precisely the case here. The issue presented by the claims at bar has always been
that Plaintiff cannot plead around the preclusive authority of Garman and Taylor. Now, after
being given a chance to propose a pleading that would possibly circumvent this authority, it is
apparent that Plaintiff cannot do so. No magic words will alter the fact that “no liability exists
under [the] substantive law” of Garman, Taylor and even Tellez-Cordova itself. (Ibid.
B. Plaintiff's Proposed Amended Complaint Fails to Plead Around the Legal
Issues Precluding His Claim For Strict Liability Against Hennessy
1 Plaintiff Does Not and Cannot Allege that Hennessy’s Brake Shoe
Arcing Machine Contained the Asbestos which Proximately Caused
Plaintiff's Injury
As this issue was briefed thoroughly in the original reply and moving papers, it is only
addressed briefly here. In short, Plaintiff does not allege that Hennessy’s arcing machine itself
contained asbestos ~ the toxin which both Taylor and Plaintiff's own complaint states was the
cause of Plaintiff's asbestos-related injury. Indeed, Plaintiff specifically alleges ~ in two
different places -- that he was exposed to asbestos from these products without the use of the
Hennessy’s machine and that these exposures caused Plaintiff's injury:
Before, during and after inspection and replacement of worn brake products,
decedent was exposed to asbestos from said products, Producers of the brake
products that caused Plaintiff’s injuries as hereinafter set forth cannot presently
be identified, through no fault of Plaintiff.
[Ex. A at 63:3-9; 66:24-27.]
Per Plaintiff's own factual allegations:
[T]he asbestos-containing products at issue in our case were themselves
inherently dangerous. Jf was their asbestos content-not any feature of
respondents’ equipment—that made them hazardous...manipulation and removal
of the asbestos-containing products at issue here would have presented a
danger...whether they were used in combination with respondents’ equipment,
some other type of equipment, or even all by themselves.
(Tayior, supra, 171 Cal.App.4th at 587-588 (emphasis added).}
No matter where, how or why it is used, asbestos is inherently dangerous. The risk of
danger, “the injury-producing product, is asbestos” manufactured by others. (Braaten v.
Saberhagen Holdings (Wash. 2008) 198 P.3d 493.) [This] “conclusion is not affected by the fact
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DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF'S
SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
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that the use of asbestos-containing materials with [Defendant’s] equipment was both foreseeable
and anticipated by [Defendant]. (Taylor, supra, 171 Cal-App.4th at 585.)
2. Plaintiff Does Not and Cannot Allege that Asbestos Contained within
Brake Shoes Manufactured By Others Was Only Dangerous When
Used with Hennessy’s Grinding Machine
Once again, Plaintiff does not allege that the asbestos-containing brake shoes at issue
here are only dangerous when used in conjunction with Hennessy’s grinding machine.” Rather,
in an incomplete effort to plead this matter within Te//ez-Cordova, Plaintiff assert that:
Until subjected to defendants’ products, asbestos fiber bundles were physically
bound or otherwise attached in a matrix in the non-friable asbestos brake lining.
[Ex. A at 3:4-6.]
While Plaintiff tries to create the inference that the asbestos-containing brake shoes at
issue were harmless without Hennessy’s grinding machine, the specific facts in Plaintiff's
complaint foreclose any such inference. Again, Plaintiff specifically pleaded that he was
exposed to asbestos “/bjefore, during and after inspection and replacement of worn brake
products” and that these products caused Plaintiff's injury. [Ex. A. at 63:3-9; 66:24-27.] Per
Plaintiff's own admissions, merely inspecting the brake products at issue caused Plaintiff's
exposure to asbestos, and thus, his asbestos-related disease. These specific, binding allegations
‘|/in Plaintiff's prior pleading preclude any inference or allegation to the contrary. (Mercury Cas,
Co v. Sup. Ct. (Garcia) (1986) 179 Cal. App.3d 1027, 1035; C & H Foods Co. v. Hartford Ins.
Co. (1984) 163 Cal.App.3d 1055, 1063.)
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? it should further be noted that Plaintiff will never plead that asbestos-containing brake linings are only dangerous
when used in conjunction with Hennessy’s grinding machine. Such an allegation would mean that manufactures,
marketers and distributors of asbestos-containing brake shoes would only be proper defendants to this matter and all
other asbestos matters in cases in which Hennessy’s grinding machine is involved in the litigation. In cases in which
Hennessy’s grinding machine is not identified, the following defendants would be immune from liability: Pneamo-
Abex Corporation; Honeywell, Inc., Auto Specialties Manufacturing Company, Brassbestos Brake Lining Company,
Bridgestone/Firestone Inc., The Budd Company, DaimlerChysler Corperation, Dana Corporation, Ford Motor
Company, Gatke Corporation, General Motors Corporation, Lear-Siegler Diversified Holdings, Corp. Maremont
Corporation, Morton International, Inc., Parker-Hannifin Corporation, Reddaway Manufacturing Company, Riteset
Manufacturing Company, Southem Power, Inc., Standard Motor Products Ine (E.1.S.}; Thoikol Corporation, Boeing
North American, Inc. Borg-Warner Automotive, Ine., General Motors Corporation, International Truck and Engine
Corporation (Navistar), Southern Power, inc. and Meritor Automotive Group.
[Ex. A at 62:19-28 and 64:12-18..] 6
DEFENDANT HENNESSY INDUSTRIES, INC.°S SUPPLEMENTAL REPLY TO PLAINTIFF’S
SUPPLEMENTAL OPPOSITION TO DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
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The fact that Plaintiff was exposed to the toxin (asbestos) without the necessary use of
the Defendant’s “instrumentality” (the grinding machine) is precisely the same fact that the
Tetlez-Cordova court used to distinguish itself from Garman. \n Tellez-Cordova, the plaintiff,
a lamp maker, ground metal parts with grinders manufactured by the defendants:
The complaint alleged that...the tools “necessarily operated” with wheels or discs
composed of aluminum oxide...that when the tools were used for their intended
purpose, respirable metallic dust from the metal being ground and from the abrasive
wheels and discs was generated and released...
(id. at 580.)
“The allegations [were] that...respondents' products were designed to be used in but one
ultimate ‘finished product,’ that is in combination with the specified abrasive wheels and
discs”...and that “the tools had no function without the abrasives which disintegrated into toxic
dust.” (id. at 584, 586.) Most importantly, the plaintiff specifically alleged that the latent
aluminum oxide was not toxic until it was connected to Defendant’s power tools and became
airborne. (id. at 581.) In finding that the Complaint could potentially state a cause of action
against the defendant, the Tellez-Cordova court was careful to distinguish itself from Garman:
In Garman v. Magic Chef, Inc., supra, 117 Cal.App.3d 634, the plaintiff had a
motor home, which had a propane gas system. The motor home also had a stove,
manufactured by defendant. The propane system leaked, and when the plaintiff lit
the stove, there was an explosion. Plaintiff contended that the stove's instruction
manual was inadequate because it did not warn the user to check the motor home
for gas leaks before lighting the stove. We said that the failure to warn was not a
legal cause of the explosion—it was the propane tubing, not the stove, which was
defective. We pointed out that a lit cigarette could equally have caused the
explosion, and said that “{t{he product here did not cause or create the risk of
harm” (id. at p. 638)...
....Here, the allegation is that the tools had no function without the abrasives
which disintegrated into toxic dust. In Garman, the propane could have
exploded through other instrumentalities, such as a match, Here, the allegation
is that the abrasive products were not dangerous without the power of the tools.
(Tellez-Cordova, supra, 129 Cal.App.4th at 585 (emphasis added).)
The Tellez-Cordova court's own analysis precludes Hennessy from being liable here. As
opposed to Tellez-Cordova, Plaintiff admits that Plaintiff was exposed to the toxin at issue
{asbestos) without the use of Hennessy’s instrumentality (i. grinding machine). [Ex. A at 63:3-
9; 66:24-27.] As the Tellez-Cordova court explained that “[i]n Garman, the propane could have
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DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF'S
SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
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exploded through other instrumentalities, such as a match,” in this case, the proposed amended
complaint does not allege that asbestos brake shoes only released asbestos dust through the use
of Hennessy’s arcing machine. Just like in Garman, Plaintiff could just as easily have been
exposed to asbestos fibers from brake shoes through other instrumentalities, such as the use of
sandpaper or a rasp or even a grinding machine made by someone other than Hennessy.
In this respect, this Court should indeed follow the reasoning of the Tellez-Cordova court.
Teliez-Cordova explained how under the law of this state, as articulated in Garman, the maker of
an instrumentality is not liable for injuries caused by a dangerous product that happens to be used
in conjunction with that instrumentality, unless that dangerous product somehow requires the use
of that instrumentality.
This was directly stated and applied by the Taylor court, when it distinguished the facts
before it, the same facts present in this instant case, from Tellez-Cordova:
In contrast to the abrasive wheels and discs in Tellez-Cordova, manipulation and
removal of the asbestos-containing products at issue here would have presented
a danger...whether they were used in combination with respondents’
equipment, some other type of equipment, or even all by themselves.
(Taylor, supra, 171 Cal.App.4th at pp. 587-588 (emphasis added).) Unlike the aluminum oxide
in Tellez-Cordova, asbestos is inherently dangerous, fundamentally distinguishing that case from
the instant case. As demonstrated above, this is alleged on the face of Plaintiff's Master
Complaint, establishing that asbestos-containing products are dangerous without any grinding.
There is no authority for the proposition that a defendant can be held liable merely
because it was an instrumentality in causing the ultimate harm. The defective product to which
liability attaches must the product that proximately causes the harm. According to Taylor,
Garman, Tellez-Cordova, and Plaintiffs own allegations, there is one product that proximately
caused Plaintiff's asbestos-related disease. That product is asbestos. As Hennessy’s grinding
machine does not contain the asbestos to which Plaintiff was exposed, Hennessy cannot be held
liable as a matter of law.
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DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF’S
SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
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3. Plaintiff Does Not and Cannot Allege that the Asbestos-Containing
Brake Shoes are “Necessary Attachments” that Join with Hennessy’s
Grinding Machine to Form One Complete System
Finally, Plaintiff's proposed amendment suffers from a third fatal defect as it once again
cannot plead around the allegation that Hennessy’s arcing machine and the asbestos-containing
brake shoes are two separate products, as opposed to parts of one complete system. In Tellez-
Cordova, the allegations were that (1) “the products [were] defective when used in combination
with their necessary attachments” (Tellez-Cordova, supra, 171 Cal.App.4th at 587; (2) the
toxins were contained within the necessary attachments to the power tools (/d. at 580); and (3)
the necessary attachments joined with the power tools to form a “finished product.” (/d. at 584).
Merely turning on the complete, finished grinder in Tellez-Cordova exposed its users to toxins.
No such allegations are present here. Indeed, as Plaintiff's allegations make clear,
Hennessy’s brake shoe grinding machine and the asbestos-containing brake shoes are two,
separate products. [Ex. B at 3:1-2.] Plaintiff does not and cannot allege that any part of
Hennessy’s finished product -- the grinder — contained asbestos. Rather, Plaintiff alleges that
Hennessy’s grinder was “used in conjunction” with asbestos-containing brake lining. [Ex. B at
3:1-2.] Merely turning on Hennessy’s complete grinder does not expose its users to toxins.
Just as the law does not impose a duty upon the manufacturers of lighters to warn of the dangers
‘of cigarette smoking, Hennessy does not have a duty to warn of the dangers of asbestos-
containing brake lining used “in conjunction with” its arcing machine. (/id.)
Plaintiff's other new allegations are completely irrelevant to the legal issue which
precludes his claims. In his proposed amendment, Plaintiff alleges that: “During all relevant
time periods, all brake shoe linings used with or on automobiles, light trucks and commercial
trucks, as serviced by the defendants’ products” contained asbestos. [Ex. B at 3:2-4.] However,
Plaintiff does not allege (nor can he allege) that the asbestos-containing brake shoes were
“necessary attachments” to defendant’s grinding machine or that the brake shoes and the
grinder formed one “finished product.” More importantly, these allegations do not speak to the
critical issue which separates this matter from Tellez-Cordova and brings this case within
Garman. Plaintiff cannot allege facts showing that the asbestos-containing brake linings were
9.
DEFENDANT HENNESSY INDUSTRIES, INC."S SUPPLEMENTAL REPLY TO PLAINTIFF'S
SUPPLEMENTAL OPPOSITION TO DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
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dangerous only when used with Defendant’s grinding machine. Rather, the specific allegations
in Plaintiff s complaint confirm that the asbestos-containing brake linings caused Plaintiff's
injury without the use of Defendant’s machine.
“Regardless of the theory upon which liability is predicated, whether negligence... strict
liability in tort, or other grounds, it is obvious that to hold a manufacturer... liable for injury
caused by a particular product, there must first be proof that the defendant produced,
manufactured, sold, or was in some way responsible for the product.” (Garcia vy. Jos. Vince Co.
(1978) 84 Cal.App.3d 868, 874.) Here, as Hennessy did not manufacture, market or distribute
the asbestos which Plaintiff admits caused his injury, it cannot be held Hable to Plaintiff as
matter of law. This is the result necessitated by California’s “bright-line” stream of commerce
tule. (Taylor, supra, 171 Cal.App.4th at 576.)
Cc. Plaintiff's Proposed Amended Complaint Fails te Plead Around the Legal
Issues Precluding His Claim For Negligence Against Hennessy
Plaintiff's proposed negligence allegations fail for similar reasons. While Plaintiff's
amendment cites in numerous places that it was “foreseeable” and “intended” that these
Defendant’ s arcing machine would be used in conjunction with asbestos-containing brake lining,
these allegations remain insufficient for two, independent reasons. [See e.g. 3:24-4:19.] First,
Plaintiff's allegations of foreseeability is legally insufficient. “What must be foreseeable is the
harm to [Decedentl, not the fact that asbestos-containing materials would be used with
{Hennessy’s] equipment.” (Taylor, supra, 171 Cal.App.4th at 593-94.)
Stated more generally, can a manufacturer reasonably be expected to foresee the
risk of latent disease arising from products supplied by others that may be used
with the manufacturer’s product years or decades after the product leaves the
manufacturer’s control? So viewed, the foreseeability of harm arising from an
alleged failure to warn becomes considerably less certain.
(id. at 593-94 (emphasis added.}
Second, “even assuming that the risk is a foreseeable one, other policy considerations
weigh against recognition of a duty in these circumstances.” (/d. at 594.)
While important, ‘foreseeability alone is not sufficient to create an independent
tort duty.’ [Citation] *[F]oreseeability is not synonymous with duty; nor is ita
substitute.” [Citation.]...Even if an injury is foreseeable, “policy reasons may
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DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF'S
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dictate a cause of action should not be sanctioned no matter how foreseeable
a risk.” [Citation.]
(Taylor, supra, 17) Cal.App.4th at 594-95 (emphasis added).)
As in Taylor, policy reasons preclude the imposition of a duty because: (1) Hennessy’s
conduct is not blameworthy as California law does not impose strict liability for failing to
accommodate for defects in the products of others; (2) imposition of a duty will not prevent
future injury as asbestos is heavily regulated by both state and federal agencies; and (3) it is
doubtful that manufacturers can insure against products over which they have no control. (/bid.)
Finally, the most important factor weighing against the imposition of a duty is the social
consequence of creating a cause of action. As stated in Taylor:
Defendants whose products happen to be used in conjunction with defective
products made or supplied by others could incur liability not only for their own
products, but also for every other product with which their product might
foreseeably be used.
Ud. at 595-596.)
Plaintiff cannot pleads facts which would create a duty upon Hennessy under Row/and v.
Christian (1968) 69 Cal.2d 108, 112-113. His failed proposed amended pleading is an admission
of such. (/d. at 579). Thus, because Hennessy does not owe Plaintiff a legal duty, it cannot be
held liable for regligence as'a matter of law.
IV. CONCLUSION
Despite being given the opportunity to do so, Plaintiff has not and cannot allege facts
which circumvent the preclusive authority negating the existence ofa duty in this case. No
amount of adjectives will change this result. Accordingly, leave to amend should be denied as
Plaintiff has shown that no liability against Hennessy exists under substantive law. (Lawrence,
supra, 163 Cal.App.3d at 436.)
«
Dated: September | ? » 2010 GORD S LLP
By:
Steven Sobel
K.C. Swisher
Attorneys for Defendant
HENNESSY INDUSTRIES, INC.
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DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF'S
SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
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Gordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 ROGER M. MANSUKHANI (SBN: 164463) STEVEN SOBEL (SBN: 177210) MATTHEW A. MASON (SBN: 228056) ELECTRONICALLY K.C. SWISHER (SBN: 245238) FILED GORDON & REES LLP Superior Court of California, 101 W. Broadway, Suite 2000 County of San Francisco San Diego, CA 92101 Telephone: (619) 696-6700 SEP a 5 20 10 Facsimile: (619) 696-7124 BY: ALISON AGBAY Deputy Clerk Attorneys for Defendant HENNESSY INDUSTRIES, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ANTHONY CONTE, ) CASE NO. CGC-09-275046 ) Plaintiff, ) Complaint filed: 01/30/09 ) vs. ) DEFENDANT HENNESSY ) INDUSTRIES, INC.’S SUPPLEMENTAL ASBESTOS DEFENDANTS (BP) As ) REPLY TO PLAINTIFFS Reflected on Exhibits B, B-1, C, F, G; and ) SUPPLEMENTAL OPPOSITION TO DOES 1-8500; and SEE ATTACHED LIST. ) DEFENDANT’S MOTION FOR \ JUDGMENT ON THE PLEADINGS ) ) [Filed and served concurrently with } Declaration of K.C. Swisher and Exhibits )_Attached Thereto 0 ) } Date: Under Submission ) Time: 9:30 ) Judge: Hon. Harold E. Kahn ) Dept: 220 ) Pursuant to this Court’s order, Defendant Hennessy Industries, Inc. (“Hennessy”) hereby respectfully submits its supplemental reply to Plaintiff's supplemental opposition to Hennessy’s Motion for Judgment on the Pleadings on the limited issue of whether leave to amend should be granted. In accordance with this Court’s order, this supplemental reply was filed and served via Lexis on September 15, 2010 and this matter is now under submission. fit iif -1- DEFENDANT HENNESSY INDUSTRIES, INC,’S SUPPLEMENTAL REPLY TO PLAINTIFF’S SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 Oo Om NY DR A BF Ww NY = we ett an mw & Ww YN & 17 MEMORANDUM OF POINTS AND AUTHORITIES 1 INTRODUCTION Plaintiff's proposed amended complaint makes clear that Plaintiff cannot state a cause of action against Hennessy. No magic words that Plaintiff can use will create liability under California law where none exists. Indeed, as highlighted by Plaintiff's own allegations, Plaintiff's claims against Hennessy fail as a matter of law for three independent reasons. i. Plaintiff does not and cannot allege that Hennessy’s arcing machine contained the asbestos which proximately caused his injury (just as in Taylor v. Elliot Turbomachinery Co. (2009) 171 Cal.App.4th 564). Hennessy cannot be held liable for injuries proximately caused by the asbestos-containing products of others. (ébid.) 2. Plaintiff does not and cannot allege that asbestos contained within brake linings manufactured by others was only dangerous when used with Hennessy’s grinding machine (just as in Garman v. Magic Chef, Inc. (1981) 117 Cal.App.3d 634 and as opposed to Tellez-Cordova y. Campbell-Hausfeld (2004) 129 Cal.App.4th 577}. Rather, Plaintiff specifically alleges that: “Before, during and after inspection of worn brake products, decedent was exposed to asbestos from said products. (Ex. A at 63:3-9.] As Plaintiff's own Complaint admits, “manipulation and removal of the asbestos-containing [brake shoes] at issue here would have presented a S| danger, whether they were sed in Combination with [Defendant’ s pritiding machine}; some other type of equipment, or even all by themselves. (Taylor, supra, 171 Cal.App.4th at 587- 587.) The fact that Plaintiff was exposed to the toxin (asbestos) without the necessary use of the Hennessy’s “instrumentality” (the grinding machine) is precisely the same fact that the Tellez- Cordova court used to distinguish itself from Garman (and thus, this matter). As the Telfez- Cordova court would agree, Hennessy cannot be liable for the asbestos-containing products of others that expose a user to harm when used with a number of instrumentalities or even all by themselves. 3. Plaintiff does not and cannot allege that the asbestos-containing brake linings are “necessary attachments” that join with Hennessy’s grinding machine to form one complete system (as opposed to Tellez-Cordova). The lesson from Te/lez-Cordova, in a Garman factual 2 DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF'S SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 Oo Oe YN DW BF Ww NY MN we MY YN NR Dm — a situation, is that there is no liability unless the instrumentality is a precondition of — and a necessary component to -- the defect which causes the injury. Here, Plaintiffs proposed amendment once again alleges that the brake shoes and the arcing machine are two separate products, one inherently dangerous and one not, that are used in conjunction with each other. Plaintiff cannot allege that the grinding machine is a necessary component to the brake shoes. Despite being given the opportunity to do so, Plaintiff does not and cannot allege that Hennessy manufactured the asbestos “brake products that caused Plaintiff's injuries.” All the “semantic nonsense” in the world will not change this result: Plaintiffs proposed amended complaint fails to state a cause of action against Hennessy and leave to amend should be denied. Il. SUMMARY OF RELEVANT ALLEGATIONS The only causes of action for which Plaintiff seeks leave to amend are the fourteenth and fifteenth causes of action for “Asbestos Brake Shoe Grinding Machine” Negligence and Strict Liability. {Ex. B.] Once again, however, Plaintiff's proposed amendments to these causes of action does not allege that Hennessy’s grinding machine contained asbestos. Rather, as with the original complaint, Plaintiffs allege that: [Defendant} knew or should have known and intended that the aforesaid asbestos brake shoe grinding machines ...would be used by consumers...including the decedent herein, in conjunction with asbestos-containing brake linings...” {Ex. B at 2:26-3:2 (emphasis added).}' eee Based upon their allegation that it was foreseeable and intended that the grinding machine would be used in conjunction with asbestos-containing brake linings, Plaintiff allege: [Defendant] faited to protect users...including the Plaintiff herein, who were in proximity to said asbestos brake shoe grinding machines and related products and equipment...from exposure to and inhalation and ingestion of asbestos fibers caused to be released from asbestos-containing brake lining... [Ex. B at 2:19-23 (emphasis added).] Plaintiff's proposed amendment proceeds to state how Defendant should have altered its machine to accommodate for the asbestos contained within brake shoes manufactured by others: " At this point in the briefing of this matter, Hennessy will only quickly note, once again, that this is precisely the same contention alleged by the unsuccessful plaintiffs in Taylor. (See Taylor, supra, 171, Cal.App.4th at 372-573). DEFENDANT HENNESSY INDUSTRIES, INC,’S SUPPLEMENTAL REPLY TO PLAINTIFF'S SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 Oo CO SO NR & BY Le MM NR NR BD NR RR Ree CoN DR BR ON DO NS Said machines could have been designed and built with features that would have prevented humans from exposure to asbestos made airborne by the machines. These design failures include, without limitation, failure to have effective dust collection systems that would have prevented wholesale asbestos-fiber release and worksite contamination causing humans to be exposed to the airborne asbestos fibers... [Ex. B. at 3:26-4:7.] While these allegations are admittedly specific, what is missing from this paragraph (and indeed the entire complaint) is an allegation that the asbestos contained within the brake linings was only dangerous when used with Hennessy’s grinding machine. More importantly, Plaintifi’s specific allegations in other portions of their Complaint completely foreclose any such inference. Indeed, Plaintiff specifically allege -- in two different places -- that: Before, during and after inspection and replacement of worn brake products, decedent was exposed to asbestos from said products. Producers of the brake products that caused Plaintiff’s injuries as hereinafter set forth cannot presently be identified, through no fault of Plaintiff. [Ex. A at 63:3-9; 66:24-27 (emphasis added).] Finally, the proposed allegations also include the word “asbestos” in several places as an adjective to describe the brake shoes that were grinded by the machines. [See Ex. B at 1:11, 1:17-18 & 1:26-17, etc.] These words are just bells and whistles utilized by Plaintiff to distract from the absence of substantive allegations that wotld state'a cause of action against Hennessy. Wi. ARGUMENT A. Leave to Amend is Properly Denied Where the Issue is a Legal One Which Cannot Be Remedied by Pleading Additional Facts While leave to amend can be granted when the issue with a plaintiffs pleading is the failure to allege sufficient facts to state a cause of action, such is not the case when the issue raised by the pleading is a legal one. (Schonfeldt v. State of Calif: (1998) 61 Cal.App.4th 1462.) Indeed: “Leave to amend should be denied where...the nature of the claim is clear, but no liability exists under substantive law.” (Lawrence vy. Bank of Am. (1985) 163 Cal.App.3d 431, 436 (emphasis added).) fit 4. DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF’S SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 0 Oo SM DR HR RB WD be NON BN RD BNR RR ae 2A aA fF B&B OW = SF Cw WB KR HR PB BW NY me So Such is precisely the case here. The issue presented by the claims at bar has always been that Plaintiff cannot plead around the preclusive authority of Garman and Taylor. Now, after being given a chance to propose a pleading that would possibly circumvent this authority, it is apparent that Plaintiff cannot do so. No magic words will alter the fact that “no liability exists under [the] substantive law” of Garman, Taylor and even Tellez-Cordova itself. (Ibid. B. Plaintiff's Proposed Amended Complaint Fails to Plead Around the Legal Issues Precluding His Claim For Strict Liability Against Hennessy 1 Plaintiff Does Not and Cannot Allege that Hennessy’s Brake Shoe Arcing Machine Contained the Asbestos which Proximately Caused Plaintiff's Injury As this issue was briefed thoroughly in the original reply and moving papers, it is only addressed briefly here. In short, Plaintiff does not allege that Hennessy’s arcing machine itself contained asbestos ~ the toxin which both Taylor and Plaintiff's own complaint states was the cause of Plaintiff's asbestos-related injury. Indeed, Plaintiff specifically alleges ~ in two different places -- that he was exposed to asbestos from these products without the use of the Hennessy’s machine and that these exposures caused Plaintiff's injury: Before, during and after inspection and replacement of worn brake products, decedent was exposed to asbestos from said products, Producers of the brake products that caused Plaintiff’s injuries as hereinafter set forth cannot presently be identified, through no fault of Plaintiff. [Ex. A at 63:3-9; 66:24-27.] Per Plaintiff's own factual allegations: [T]he asbestos-containing products at issue in our case were themselves inherently dangerous. Jf was their asbestos content-not any feature of respondents’ equipment—that made them hazardous...manipulation and removal of the asbestos-containing products at issue here would have presented a danger...whether they were used in combination with respondents’ equipment, some other type of equipment, or even all by themselves. (Tayior, supra, 171 Cal.App.4th at 587-588 (emphasis added).} No matter where, how or why it is used, asbestos is inherently dangerous. The risk of danger, “the injury-producing product, is asbestos” manufactured by others. (Braaten v. Saberhagen Holdings (Wash. 2008) 198 P.3d 493.) [This] “conclusion is not affected by the fact -5- DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF'S SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 Oo Oe YN DR WH RB YN Nw YM NM NN RB NR Nm meet eo YN A A BF OB NM B&F Se wD A HA RB Hw HW EF OS that the use of asbestos-containing materials with [Defendant’s] equipment was both foreseeable and anticipated by [Defendant]. (Taylor, supra, 171 Cal-App.4th at 585.) 2. Plaintiff Does Not and Cannot Allege that Asbestos Contained within Brake Shoes Manufactured By Others Was Only Dangerous When Used with Hennessy’s Grinding Machine Once again, Plaintiff does not allege that the asbestos-containing brake shoes at issue here are only dangerous when used in conjunction with Hennessy’s grinding machine.” Rather, in an incomplete effort to plead this matter within Te//ez-Cordova, Plaintiff assert that: Until subjected to defendants’ products, asbestos fiber bundles were physically bound or otherwise attached in a matrix in the non-friable asbestos brake lining. [Ex. A at 3:4-6.] While Plaintiff tries to create the inference that the asbestos-containing brake shoes at issue were harmless without Hennessy’s grinding machine, the specific facts in Plaintiff's complaint foreclose any such inference. Again, Plaintiff specifically pleaded that he was exposed to asbestos “/bjefore, during and after inspection and replacement of worn brake products” and that these products caused Plaintiff's injury. [Ex. A. at 63:3-9; 66:24-27.] Per Plaintiff's own admissions, merely inspecting the brake products at issue caused Plaintiff's exposure to asbestos, and thus, his asbestos-related disease. These specific, binding allegations ‘|/in Plaintiff's prior pleading preclude any inference or allegation to the contrary. (Mercury Cas, Co v. Sup. Ct. (Garcia) (1986) 179 Cal. App.3d 1027, 1035; C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1063.) Vit ? it should further be noted that Plaintiff will never plead that asbestos-containing brake linings are only dangerous when used in conjunction with Hennessy’s grinding machine. Such an allegation would mean that manufactures, marketers and distributors of asbestos-containing brake shoes would only be proper defendants to this matter and all other asbestos matters in cases in which Hennessy’s grinding machine is involved in the litigation. In cases in which Hennessy’s grinding machine is not identified, the following defendants would be immune from liability: Pneamo- Abex Corporation; Honeywell, Inc., Auto Specialties Manufacturing Company, Brassbestos Brake Lining Company, Bridgestone/Firestone Inc., The Budd Company, DaimlerChysler Corperation, Dana Corporation, Ford Motor Company, Gatke Corporation, General Motors Corporation, Lear-Siegler Diversified Holdings, Corp. Maremont Corporation, Morton International, Inc., Parker-Hannifin Corporation, Reddaway Manufacturing Company, Riteset Manufacturing Company, Southem Power, Inc., Standard Motor Products Ine (E.1.S.}; Thoikol Corporation, Boeing North American, Inc. Borg-Warner Automotive, Ine., General Motors Corporation, International Truck and Engine Corporation (Navistar), Southern Power, inc. and Meritor Automotive Group. [Ex. A at 62:19-28 and 64:12-18..] 6 DEFENDANT HENNESSY INDUSTRIES, INC.°S SUPPLEMENTAL REPLY TO PLAINTIFF’S SUPPLEMENTAL OPPOSITION TO DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 Oo 8 NY KN TH & WY NO RM NN BD YR RR em eC NW DB WA & YB NY He SO we HN DH HW &F YW HW & The fact that Plaintiff was exposed to the toxin (asbestos) without the necessary use of the Defendant’s “instrumentality” (the grinding machine) is precisely the same fact that the Tetlez-Cordova court used to distinguish itself from Garman. \n Tellez-Cordova, the plaintiff, a lamp maker, ground metal parts with grinders manufactured by the defendants: The complaint alleged that...the tools “necessarily operated” with wheels or discs composed of aluminum oxide...that when the tools were used for their intended purpose, respirable metallic dust from the metal being ground and from the abrasive wheels and discs was generated and released... (id. at 580.) “The allegations [were] that...respondents' products were designed to be used in but one ultimate ‘finished product,’ that is in combination with the specified abrasive wheels and discs”...and that “the tools had no function without the abrasives which disintegrated into toxic dust.” (id. at 584, 586.) Most importantly, the plaintiff specifically alleged that the latent aluminum oxide was not toxic until it was connected to Defendant’s power tools and became airborne. (id. at 581.) In finding that the Complaint could potentially state a cause of action against the defendant, the Tellez-Cordova court was careful to distinguish itself from Garman: In Garman v. Magic Chef, Inc., supra, 117 Cal.App.3d 634, the plaintiff had a motor home, which had a propane gas system. The motor home also had a stove, manufactured by defendant. The propane system leaked, and when the plaintiff lit the stove, there was an explosion. Plaintiff contended that the stove's instruction manual was inadequate because it did not warn the user to check the motor home for gas leaks before lighting the stove. We said that the failure to warn was not a legal cause of the explosion—it was the propane tubing, not the stove, which was defective. We pointed out that a lit cigarette could equally have caused the explosion, and said that “{t{he product here did not cause or create the risk of harm” (id. at p. 638)... ....Here, the allegation is that the tools had no function without the abrasives which disintegrated into toxic dust. In Garman, the propane could have exploded through other instrumentalities, such as a match, Here, the allegation is that the abrasive products were not dangerous without the power of the tools. (Tellez-Cordova, supra, 129 Cal.App.4th at 585 (emphasis added).) The Tellez-Cordova court's own analysis precludes Hennessy from being liable here. As opposed to Tellez-Cordova, Plaintiff admits that Plaintiff was exposed to the toxin at issue {asbestos) without the use of Hennessy’s instrumentality (i. grinding machine). [Ex. A at 63:3- 9; 66:24-27.] As the Tellez-Cordova court explained that “[i]n Garman, the propane could have “Je DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF'S SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 oC Ce DH HW BB YW YD we tet YD WA Bw we So 18 exploded through other instrumentalities, such as a match,” in this case, the proposed amended complaint does not allege that asbestos brake shoes only released asbestos dust through the use of Hennessy’s arcing machine. Just like in Garman, Plaintiff could just as easily have been exposed to asbestos fibers from brake shoes through other instrumentalities, such as the use of sandpaper or a rasp or even a grinding machine made by someone other than Hennessy. In this respect, this Court should indeed follow the reasoning of the Tellez-Cordova court. Teliez-Cordova explained how under the law of this state, as articulated in Garman, the maker of an instrumentality is not liable for injuries caused by a dangerous product that happens to be used in conjunction with that instrumentality, unless that dangerous product somehow requires the use of that instrumentality. This was directly stated and applied by the Taylor court, when it distinguished the facts before it, the same facts present in this instant case, from Tellez-Cordova: In contrast to the abrasive wheels and discs in Tellez-Cordova, manipulation and removal of the asbestos-containing products at issue here would have presented a danger...whether they were used in combination with respondents’ equipment, some other type of equipment, or even all by themselves. (Taylor, supra, 171 Cal.App.4th at pp. 587-588 (emphasis added).) Unlike the aluminum oxide in Tellez-Cordova, asbestos is inherently dangerous, fundamentally distinguishing that case from the instant case. As demonstrated above, this is alleged on the face of Plaintiff's Master Complaint, establishing that asbestos-containing products are dangerous without any grinding. There is no authority for the proposition that a defendant can be held liable merely because it was an instrumentality in causing the ultimate harm. The defective product to which liability attaches must the product that proximately causes the harm. According to Taylor, Garman, Tellez-Cordova, and Plaintiffs own allegations, there is one product that proximately caused Plaintiff's asbestos-related disease. That product is asbestos. As Hennessy’s grinding machine does not contain the asbestos to which Plaintiff was exposed, Hennessy cannot be held liable as a matter of law. fit ‘it -8- DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF’S SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 oO Oe ND DH BY! pet Bb Ww NHN SF S&S 15 3. Plaintiff Does Not and Cannot Allege that the Asbestos-Containing Brake Shoes are “Necessary Attachments” that Join with Hennessy’s Grinding Machine to Form One Complete System Finally, Plaintiff's proposed amendment suffers from a third fatal defect as it once again cannot plead around the allegation that Hennessy’s arcing machine and the asbestos-containing brake shoes are two separate products, as opposed to parts of one complete system. In Tellez- Cordova, the allegations were that (1) “the products [were] defective when used in combination with their necessary attachments” (Tellez-Cordova, supra, 171 Cal.App.4th at 587; (2) the toxins were contained within the necessary attachments to the power tools (/d. at 580); and (3) the necessary attachments joined with the power tools to form a “finished product.” (/d. at 584). Merely turning on the complete, finished grinder in Tellez-Cordova exposed its users to toxins. No such allegations are present here. Indeed, as Plaintiff's allegations make clear, Hennessy’s brake shoe grinding machine and the asbestos-containing brake shoes are two, separate products. [Ex. B at 3:1-2.] Plaintiff does not and cannot allege that any part of Hennessy’s finished product -- the grinder — contained asbestos. Rather, Plaintiff alleges that Hennessy’s grinder was “used in conjunction” with asbestos-containing brake lining. [Ex. B at 3:1-2.] Merely turning on Hennessy’s complete grinder does not expose its users to toxins. Just as the law does not impose a duty upon the manufacturers of lighters to warn of the dangers ‘of cigarette smoking, Hennessy does not have a duty to warn of the dangers of asbestos- containing brake lining used “in conjunction with” its arcing machine. (/id.) Plaintiff's other new allegations are completely irrelevant to the legal issue which precludes his claims. In his proposed amendment, Plaintiff alleges that: “During all relevant time periods, all brake shoe linings used with or on automobiles, light trucks and commercial trucks, as serviced by the defendants’ products” contained asbestos. [Ex. B at 3:2-4.] However, Plaintiff does not allege (nor can he allege) that the asbestos-containing brake shoes were “necessary attachments” to defendant’s grinding machine or that the brake shoes and the grinder formed one “finished product.” More importantly, these allegations do not speak to the critical issue which separates this matter from Tellez-Cordova and brings this case within Garman. Plaintiff cannot allege facts showing that the asbestos-containing brake linings were 9. DEFENDANT HENNESSY INDUSTRIES, INC."S SUPPLEMENTAL REPLY TO PLAINTIFF'S SUPPLEMENTAL OPPOSITION TO DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGSGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 0 OR KH WH ee Bw NY YM RP MR MDM NR NR BR Nm mata oc NOK RB NH DO ON RN NS dangerous only when used with Defendant’s grinding machine. Rather, the specific allegations in Plaintiff s complaint confirm that the asbestos-containing brake linings caused Plaintiff's injury without the use of Defendant’s machine. “Regardless of the theory upon which liability is predicated, whether negligence... strict liability in tort, or other grounds, it is obvious that to hold a manufacturer... liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product.” (Garcia vy. Jos. Vince Co. (1978) 84 Cal.App.3d 868, 874.) Here, as Hennessy did not manufacture, market or distribute the asbestos which Plaintiff admits caused his injury, it cannot be held Hable to Plaintiff as matter of law. This is the result necessitated by California’s “bright-line” stream of commerce tule. (Taylor, supra, 171 Cal.App.4th at 576.) Cc. Plaintiff's Proposed Amended Complaint Fails te Plead Around the Legal Issues Precluding His Claim For Negligence Against Hennessy Plaintiff's proposed negligence allegations fail for similar reasons. While Plaintiff's amendment cites in numerous places that it was “foreseeable” and “intended” that these Defendant’ s arcing machine would be used in conjunction with asbestos-containing brake lining, these allegations remain insufficient for two, independent reasons. [See e.g. 3:24-4:19.] First, Plaintiff's allegations of foreseeability is legally insufficient. “What must be foreseeable is the harm to [Decedentl, not the fact that asbestos-containing materials would be used with {Hennessy’s] equipment.” (Taylor, supra, 171 Cal.App.4th at 593-94.) Stated more generally, can a manufacturer reasonably be expected to foresee the risk of latent disease arising from products supplied by others that may be used with the manufacturer’s product years or decades after the product leaves the manufacturer’s control? So viewed, the foreseeability of harm arising from an alleged failure to warn becomes considerably less certain. (id. at 593-94 (emphasis added.} Second, “even assuming that the risk is a foreseeable one, other policy considerations weigh against recognition of a duty in these circumstances.” (/d. at 594.) While important, ‘foreseeability alone is not sufficient to create an independent tort duty.’ [Citation] *[F]oreseeability is not synonymous with duty; nor is ita substitute.” [Citation.]...Even if an injury is foreseeable, “policy reasons may -10- DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF'S SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGSCo Oe NDR HW FWY HH pat eet vo S&S 13 Gordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 tt fs 28 ZRCH:0S65%472a00070 1 dictate a cause of action should not be sanctioned no matter how foreseeable a risk.” [Citation.] (Taylor, supra, 17) Cal.App.4th at 594-95 (emphasis added).) As in Taylor, policy reasons preclude the imposition of a duty because: (1) Hennessy’s conduct is not blameworthy as California law does not impose strict liability for failing to accommodate for defects in the products of others; (2) imposition of a duty will not prevent future injury as asbestos is heavily regulated by both state and federal agencies; and (3) it is doubtful that manufacturers can insure against products over which they have no control. (/bid.) Finally, the most important factor weighing against the imposition of a duty is the social consequence of creating a cause of action. As stated in Taylor: Defendants whose products happen to be used in conjunction with defective products made or supplied by others could incur liability not only for their own products, but also for every other product with which their product might foreseeably be used. Ud. at 595-596.) Plaintiff cannot pleads facts which would create a duty upon Hennessy under Row/and v. Christian (1968) 69 Cal.2d 108, 112-113. His failed proposed amended pleading is an admission of such. (/d. at 579). Thus, because Hennessy does not owe Plaintiff a legal duty, it cannot be held liable for regligence as'a matter of law. IV. CONCLUSION Despite being given the opportunity to do so, Plaintiff has not and cannot allege facts which circumvent the preclusive authority negating the existence ofa duty in this case. No amount of adjectives will change this result. Accordingly, leave to amend should be denied as Plaintiff has shown that no liability against Hennessy exists under substantive law. (Lawrence, supra, 163 Cal.App.3d at 436.) « Dated: September | ? » 2010 GORD S LLP By: Steven Sobel K.C. Swisher Attorneys for Defendant HENNESSY INDUSTRIES, INC. -Ii- DEFENDANT HENNESSY INDUSTRIES, INC.’S SUPPLEMENTAL REPLY TO PLAINTIFF'S SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS