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BRAYTON@PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD
PO BOX 6169
NOVATO, CALIFORNIA 94948-6169.
{415} 898-1555
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ALAN R. BRAYTON, ESQ., 8.B. #73685
DAVID R. DONADIO, ESQ, §.B. #154436
OREN P. NOAH, ESQ., 8.B. #136310 ELECTRONICALLY
BRAYTON*PURCELL LLP FILED
Attorneys at Law Superior Court of California,
222 Rush Landing Road County of San Francisco
P.O. Box 6169
Novato, California 94948-6169 AUG 11 2010
415) 898-1555 Clerk of the Court
entative Ruling Contest Email: contestasbestosTR@braytonlaw.com °*' AU‘SON ae puty Clerk
Attomeys for Plaintiff
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ANTHONY CONTE,
Plaintiff,
ASBESTOS
No, CGC-09-275046
PLAINTIFF’S OPPOSITION TO
DEFENDANT HENNESSY INDUSTRIES,
INC.’S MOTION FOR JUDGMENT ON
THE PLEADINGS
VS.
ASBESTOS DEFENDANTS (BP)
ee
Date: August 24, 2010
Time: 9:30 a.m.
Dept.: 220, Hon. Harold E. Kahn
Trial Date: March.14, 2011
Action Filed: January 30, 2009
L
INTRODUCTION
Defendant HENNESSY INDUSTRIES, INC. (“HENNESSY”) erroneously claims that
California law now immunizes it from the traditional notions of products liability, even though
it acknowledges that plaintiff was exposed to asbestos from the use of its brake grinding
machines, which, when used as intended and directed, ground up the asbestos-containing brake
lining material and spewed it into the air around plaintiff, where he breathed it in.
Accordingly, HENNESSY’s Motion for Judgment on the Pleadings on the products
liability causes of action should be denied. :
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PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC."S MOTION FOR JUDGMENT ON THE PLEADINGSCe TB DH HH FY Hw =
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However, should there be some infirmity in the pleading which may be corrected by
amendment, plaintiff would request leave to make such amendment.
IL.
FACTUAL BACKGROUND
Plaintiff ANTHONY CONTE was exposed to asbestos while he was employed by an
automobile dealership through the use of an Ammo brand brake grinding machine,
manufactured by HENNESSY, and, thus, contracted and suffers from asbestosis and asbestos-
related pleural disease. (Complaint.)
He brought this action for personal injuries against various defendants which are alleged
to be responsible for his asbestos exposure, including HENNESSY, which designed,
manufactured and marketed Ammeo brand brake grinding machines, These machines were
used to reshape asbestos-containing brake linings and, in doing so, ground up the asbestos brake
lining material into a fine powder and blew it into the air. (Id.)
TH.
LEGAL ARGUMENT
A. PLAINTIFFS HAVE STATED SUFFICIENT FACTS TO SET FORTH VALID
CAUSES OF ACTION FOR DEFECTIVE PRODUCTS UNDER
CALIFORNIA LAW.
To state a cause of action against a manufacturer for products liability based upon
negligence, a plaintiff must allege that he was injured by the defective nature of a product
manufactured by the defendant.
Plaintiff alleged all of this.
HENNESSY argues that it somehow has no duty with regard to injuring or killing those
of its customers or other users who operate its machinery in the manner in which it was
designed and marketed.
However, the law is clear that:
“The manufacturer of a product that is reasonably certain to be dangerous if
negligently made, has a duty to exercise reasonable care in the design,
manutacture, testing and inspection of the product so that the product may be
My safely used in a manner and for a purpose for which is was made.” (BAJ/ 9.21)
Ninjuce\10925 4p! dhgpp-HENNES- mtn judgment-pleadings wed 2
PLAINTIFF’S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS,eo em NH mM Bw N
Here, plaintiff has alleged that he was injured through the use, in the intended manner,
HENNESSY’s brake grinding machines, which were designed and marketed for the purpose of
abrading brake linings, the vast majority of which contained asbestos, and, which because of
their design, caused substantial amounts of the asbestos which had been bound in the brake
lining to become free and airborne, all around the plaintiff.
Plaintiff also alleged that HENNESSY was similarly negligent in failing to warn him of
|, such airborne asbestos exposure.
Similarly, plaintiff has alleged that HENNESSY is strictly liable for the defective nature
of its brake grinding machines.
i. he Holding i I licable to Hi sy in this Case
HENNESSY’s entire Motion is predicated upon the canard that California law has been
revolutionized and that a company that designs, manufactures and markets a machine which,
when used as directed, spews airborne toxins, is now immune from responsibility unless it also
sold the toxins. The case of Taylor v. Elliot Turbomachinery Co. (2009) 171 Cal App.4th 564,
while unique and remarkable, does not go so far as to overturn decades of established products
liability law.
In Taylor the defendants were pump and valve manufacturers whose products were
|| installed on Navy ships, without any evidence of their involvement with the asbestos-containing
products used in their products. Here, defendant was not just a mere supplier of parts for a
system. Rather, HENNESSY designed, manufactured and marketed brake shoe grinding
|| machines that had one, and only one, purpose: to reshape asbestos-containing brake linings
|| through mechanical abrasion. That direct involvement eliminates any claim that HENNESSY
was a mere supplier of a non asbestos-containing product that somehow came into contact with
someone else’s asbestas-containing product.
To be clear, the plaintiff's evidence will demonstrate that HENNESSY’s products
themselves were defective (both as designed and in failure to warn) because their design caused
Apiured\t0925 ph d.opy-HENNES ey, pleadings wed 3
PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC."S MOTION FOR JUDGMENT ON THE PLEADINGS:all around its operators, when they used the machines as intended and, in fact, as directed by
HENNESSY, both in writing and orally.
The defective machines, themselves, abraded and otherwise subjected the asbestos-
containing brake linings to physical forces that caused hazardous exposures to plaintiff. See
e.g,, Lellez-Cordova y. Campbell-Hausfield (2004) 129 Cal App.3d 577.
The Taylor court’s discussion of Garman v, Magic Chef. Inc. (1981) 117 Cal.App.3d
634 makes the point that because the stove in Garman did not itself, on the facts of Garman,
present any “unreasonably dangerous condition or feature,” then the respondent stove
manufacturer was not subject to liability for failure to warn. In the instant case, the facts and
evidence are much different - and Garman supports plaintiff's case. Plaintiff's evidence will
show that, unlike Garman, HENNESSY’s products themselves did present a dangerous design
and that its features caused the plaintiff's injuries. Analogous to Garman, the instant case is one
where it’s as if the respondent in Garman required dangerous/leaking copper tubing in its
installation and operation - had those been the facts of Garman, which would represent an
“unreasonably dangerous condition or feature of the respondent’s product,” the Garman court
would have had little difficulty in holding respondent liable for failure to warn. Because
HENNESSY’s products were unreasonably dangerous and always physically caused substantial
releases hazardous airborne asbestos, Garman, as specifically quoted in Taylor, supports
defendant’s failure to warn liability.
The facts of the instant case are clearly distinguishable from the products at issue in
Taylor. The products at issue in this case are machines designed by defendant HENNESSY
which physically caused substantial releases of airborne asbestos when used as directed for the
purpose for which is was designed, manufactured and marketed. Unlike the replacement part
packing and gaskets that were at issue in Taylor, the product at issue in the instant case is the
instrumentality of plaintiff's exposure to the asbestos in the brake linings.
As noted above, HENNESSY is not an innocent manufacturer of a product made
dangerous by the application of another party’s asbestos-containing products. HENNESSY
designed, manufactured and sold their products for the express purpose of mechanically
K:tlelurecht09254ipitiong HENNES mes judement-pleadings.wpd 4
PLAINTIPF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC.'S MOTION FOR JUDGMENT ON THE PLEADINGSOC wo DDR BBN
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abrading asbestos-containing brake linings and, in the process, released substantial amounts of
asbestos into the air, when operated and used as intended and, in fact, directed. During ail
relevant times, all of the brake linings which HENNESSY’s machines were intended to be used
with contained asbestos, This fact was surely known by HENNESSY when it designed its
machines, as their only purpose was to reshape asbestos-containing brake linings through
abrasion.
Plaintiff has alleged both negligence and strict liability theories of design defect: two
bases of liability which the Taylor court specifically did not address in its decision. See, Taylor
v. Elliott Turbo Machinery Co Inc., supra, footnote 4 at 572: “The only causes of action at
issue in this appeal are those alleging failure to warn, under both strict liability and negligence.”
See, also, “Under California law, strict products liability has been invoked for three types of
product defects: (1) manufacturing defects, (2) design defects, and (3) “warning defects.”
“(citation omitted) “We are here concerned solely with the third category.” (Id. at 577.)
Aside from the failure to address design defect causes of action, Taylor is not controlling
in this matter even as to failure to warn claims for several reasons.
California law does impose, for very sound overarching public policy reasons, a duty on
product manufacturers to warn of hazards inherent in defective products they make and market.
Taylor endeavors to somehow revise this as regards to a specific subclass of component or other
parts in defendant’s products, yet cites the very policies the Taylor holding belies when doing
so. Taylor, when examined, collapses on its own premise, having much to do with its erroneous
point of view and perspective. Defendant’s design and manufacture of its own products the
intended use of which guarantees the subsequent release of asbestos fibers, and the resultant
hazards known to occur, renders the defendant’s subject to failure to warn product liability
mandates and claims of negligence under Civil Code § 1714.
To be sure, plaintiff's evidence will prove asbestos dangers inherent in the defendant’s
products (not those of others) so as to’substantially support the notion that HENNESSY bore a
duty to warn of the hazards presented by its own products. Johnson v. American Standard, Inc.
(2008) 43 Cal.4th 56, 64. Plaintiff will prove that defendant designed, manufactured and
Ak Muredl OF2S4\pld\opp- HENNES- min udgmest-pleadings wp 3
PLAINTIFF'S OPPOSITION TO’DEFENDANT HENNESSY INDUSTRIES, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGSmarketed products solely designed for applying mechanical abrasion to asbestos-containing
brake linings which, when used as intended and, in fact, directed by HENNESSY, caused its
users to be exposed to substantial quantities of airborne asbestos, assuring a release of asbestos
and subsequent exposure to anyone working with or around its products.
Cases brought against those involved in product manufacture and sale are to be viewed
through a remedial prism upon which product liability law was founded dating to Justice
Tobriner’s writings in Greenman v. Yuba Power Products Inc, (1963) 59 Cal.2d 57. (See, also,
Fortman v. Hemeco, Inc. (1989) 211 Cal.App.3d 241; Kasel vy. Remington Arms Co. (1972) 24
Cal.App.3d 711; Bay Summit v. Shell Oil Co, (1996) 51 Cal.App.4th 762.) As between an
injured product consumer and those involved in its design and chain of distribution, the latter is
to bear the loss. Taylor is not consonant with these policies it often cites and cannot be
harmonized with precedent, the opinion’s 35-page effort to do so notwithstanding. Taylor is
incompatible with the long standing California policy to protect “product-using citizens”
injured by products used as intended. A pump shaft designed to physically abut asbestos
packing, a valve stem whose ‘intended use abrades asbestos from valve packing designed to rest
adjacent to the moving stem, maintenance and repair - represent the challenged design features
of the defendant’s products - not others - just as in this case. That is the perspective that is
missing from Taylor and one mandated by product liability law Taylor doesn’t change.
2. Rather, this Case Is Controlled by the Prevailing California Law.
Including the Holding in Tellez-Cordova
Defendant correctly comprehends that what it urges this Court to do is in direct conflict
with the Court of Appeal’s holding in Tellez-Cordova v. Campbell-Hausfeld (2004) 129
Cal.App.4th 577. Thus, HENNESSY urges this Court to ignore that binding precedent.
However, a simple reading of HENNESSY’s attempt to distinguish the facts of this case
from those of Tellez-Cordova illustrates the falsity of HENNESSY’s argument.
HENNESSY argues that:
“The instant matter is completely distinguishable from Tellez-
Tellez-Cordova.
In Tellez-Cordova, the substances released from the abrasive wheels and disks
were ‘aluminum oxide and other inorganic materials.’ (Tellez-Cordova, supra,
Ateneo SENNES ni judarnemplend 6
PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC,’S MOTION FOR JUDGMENT ON THE PLEADINGS:Ce NY DA mH Bw wD
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129 Cal.App 4th at 580.) Plaintiff in that matter specifically alleged that the disk
and belt attachments were not harmful until they were connected to the
defendants’ power tools. (1d. at 579-580.) Simply, the aluminum oxide
contained in the disks and wheels was only dangerous when it became airbome.
And the aluminum oxide only became airborne with the use of defendants’
power tools.” (Defendant’s Memorandum of Points & Authorities, 8:13-20,
emphasis in original.) .
Here, plaintiff is alleging that HENNESSY’s abrasive power tools, when used as
intended and directed, released substantial amounts of asbestos into the air around the users of
its brake grinding machines. Just as the aluminum oxide in the Tellez-Cordova case was not
harmful until it became airborne and breathed into the plaintiff’s lungs, the asbestos in the brake
linings was not harmful until it “became airborne with the use of the defendants’ power tools”
and was breathed into plaintiff's lungs.
B. DEFENDANT HENNESSY’S ATTEMPT TO CITE AND REFER TO A
TRIAL COURT CASE DECISION IS IMPROPER AND SHOULD BE
DISREGARDED.
Plaintiff objects to HENNESSY’s attempt to cite an unpublished trial court opinion in
an unrelated case. This citation is clearly a violation of California Rule of Court Rule 8.1115,
which provides, in relevant part, that "[a]n opinion of a California Court of Appeal or superior
court appellate division that is not certified for publication or ordered published must not be
cited or relied on by a court or a party in any other action." Likewise, it is improper to cite to a
trial court opinion in an unrelated case. (See Santa Ana Hosp, Med. Ctr. v. Belshe (1997) 56
Cal.App4th 819, 831.) In fact, such citations may expose HENNESSY’s counsel to sanctions.
(See Alicia T. v, County of Los Angeles (1990) 222 Cal.App.3d 869, 885*886.)
Plaintiff further objects to HENNESSY’s improper and unsupported attempt to request
judicial notice regarding this unrelated case. C.C.P. § 438(d) provides that the grounds for a
motion for judgment on the pleadings “shall appear on the face of the challenged pleading or
from any matter of which the court is required to take judicial notice.”
The court “must” or “may” judicially notice certain matters under Evidence Code §§
451 & 452, respectively. Here, HENNESSY appears to be asking that the court use its
permissive judicial notice powers under Evid. Code § 452(d) for the “records of any court in
Mh
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PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS.Co me WI Rw Bb BN
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this state.” However, just because a matter is contained within a court record, it is not necessary
the proper subject of judicial notice.
Here, HENNESSY is attempting to use the judicial notice provision to “shoehorn” this
| Court into considering the ruling of a sister trial court in an unrelated matter on the same legal
|| issue that is before this Court. Judicial notice for court records is “limited to matters that are
indisputably true. (Fremont Indem, Co. v. Fremont Gen, Corp. (2007) 148 Cal. App.4th 97,
113.) Such judicial notice cannot be used to accept as true the contents of pleadings or other
documents, as such matters are inadmissible hearsay. (Day v. Sharp (1975) 50 Cal.App.3d 904,
| 914.) A court may take judicial notice of the existence of a finding of fact made in another
action, but it may not accept the finding as true. As explained by J. Weil and I. Brown, in
Calif. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) {]7:15.5,
“Otherwise the judge in the first case would be made ‘infallible’ on all matters, usurping the
doctrines of res judicata and collateral estoppel.”
Because the other trial court case is unrelated to this action, the order for which
HENNESSY seeks judicial notice is not an element of proof for any matter of claim or defense
in this action. Thus, its existence does not control the rights and duties of the parties herein
and, is not subject to judicial notice.
Further, just as it is improper for HENNESSY to ask this Court to judicially notice to
|| facts found by that other trial court judge, it is improper for HENNESSY to ask this Court to
judicially notice the conclusion of law reached by that other trial court judge.
Cc. SHOULD THE COURT DETERMINE THAT THE COMPLAINT IS
INADEQUATE, THEN PLAINTIFFS WOULD REQUEST LEAVE OF
COURT TO AMEND ACCORDINGLY.
The Court is to use the same standards for requests for leave to amend in response to
motions for judgment on the pleadings as for demurters, and leave is to be routinely granted.
(People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 692.
“Where a demurrer is sustained or a motion for judgment on the pleadings is granted as
to the original complaint, denial of leave to amend constitutes an abuse of discretion if the
a
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PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC,"§ MOTION FOR JUDGMENT ON THE PLEADINGSSoS eo NADH Bw NG
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pleading does not show on its face that it is incapable of amendment.” (Virginia G. v. ABC
Unified School Dist. (1993) 15 Cal. App.4th 1848, 1852.)
Thus, should the Court determine that there is an insufficiency in the Complaint,
plaintiff would request leave of Court to respond to HENNESSY’s Motion for Judgment on the
Pleadings on such matters,
CONCLUSION
For the foregoing reasons, the Court should deny defendant HENNESSY INDUSTRIES,
INC.’s Motion for Judgment on the Pleadings with respect to the products liability (negligence
and strict liability) causes of action.
Alternatively, should the Court determine that there is an insufficiency in the Complaint,
plaintiff would request leave of Court to respond to HENNESSY’s Motion for Judgment on the
Pleadings on such matters.
Dated: _AUG 10 2010
Atforneys for Plaintiff
[To comply with Department 220's rules regarding tentative rulings, you must call
the Law & Motion Message Line (415) 493-3594 to give us notice if you wish to contest a
tentative ruling. A copy of any email notification to Dept. 220 must be sent to
contestasbestosT R@braytonlaw.com.]
Sfnjure\10025 Ned gop: MENNES-mun-odgmentpleadings wod 9
PLAINTIFF’S OPPOSITION TO DEFENDANT HENNESSY !NDUSTRIES, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS:BRAYTON@PURCELL LLP
ATIORNEYS AT LAW
222 RUSH LANDING ROAD
POBOX 6169
NOVATO, CALIFORNIA 94948-6169
{AIS} 898-1555.
1 PROOF OF SERVICE BY LEXIS-NEXIS E-SERVICE
1am employed in the County of Marin, State of Califormia. I am over the age of 18
ears and am not a party to the within action. My business address is 222 Rush Landing Road,
.O. Box 6169, Novato, California, 94948-6169.
On August 11, 2016, I electronically served (E-Service), pursuant to General Order No.
158, the following documents:
2
3
4
5
PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES,
6 INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS; [PROPOSED]
ORDER
7
8
9
on the interested parties in this action by utilizing Lexis-Nexis E-service program pursuant to
General Order No. 158, to transmit a true copy thereof to the following party(ies):
SEE ATTACHED SERVICE LIST
10 The above document(s) were transmitted by Lexis-Nexis E-Service.
i Executed on August 11, 2010, at Novato, California.
12 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
.
i , ~S dA A
Diane I. Davidowski
19]| Anthony Conte v. Asbestos Defendants (BP.
San Francisco Superior Court Case No. CGC-09-275046
PROOF OF SERVICE BY E-SERVICEBrayton-Purcell Service List
Date Created: 8/10/2010-22:23:57 PM
(DED)
Created by: LitSupport - ServiceList ~ Reporting
Matter Number: 109254.001 - Anthony Conte
Bassi, Edlin, Huie & Blum LLP
351 California Street, Suite 200
San Francisco, CA 941)
415-397-9006 $15397-1339 (fax)
Defendants:
J.T, Thorpe & Son, Inc. (THORPE)
Parker-Hannifin Corporation (PARKHF)
Gordon & Rees LLP
Embarcadero Center West
275 Battery Street, Suite 2000
San Francisco, CA
445-986-5900 415~ 986 8054 (fax)
Defendants:
ssenKrupp Budd Company (fka The
Bud iyesmpare) (BUDD)
McKague & Fong, LLP.
3 Montgomery tre eet Suite 1100
San Francisco,
415-409-5222 fisea05- "0467 (fax)
Defendants:
aur" Northern Santa Fe Corporation
Sedgwick, Detert, Moran & Arnold
One Market Plaza
Steuart Tower, 8" Floor
San Francisco, CA 9410:
415-781-7900 415-781 638 {fax}
Defendants:
General Electric Company (GE)
Po Bax te 160°
5o30 Lakeshore dyenue
Oakland, CA 94610
510-835-8330 $10-835-5117 (fax)
Defendants:
Berry & Berry (B&B) .
Hassard Bonnington LLP
Two Embarcadero Center
Suite 1800
San Francisco, CA $4111
415-288-9800 415-288-9802 (fax)
Defendants:
Honeywell International, Inc. (HONEY W}
Perkins Coie LLP
Four Embarcadero Soper, Suite 2400
San Francisco, CA i
415-344-7000 fis sad. 7288 (fax)
Defendants:
Honeywell International, Inc. (HONEY W)
Walsworth, Franklin, Bevins & MeCall
601 Montgome Street, 9* Floor ©
San Francisco, iN
4ts. 781-7072 fs 391-6258 (fax)
Defendant
Quinte tndustries, Inc. (QUINTC)
Run By : Davidowski, Diane
Gordon & Rees LLP
101] West Broadway
Suite 2000
San Diego, CA 921
619-696-6700 319-696-7124 (fax)
Defendants:
Hennessy Industries, Inc. (HENNES)
1
sage & Tong, LLP
641 Fulton Avenue
Suite 130
Sacramento, CA 95825
916-974-3000 916-974-7063 (fax)
Defendants
Union Pacifi fic Railroad Company (UP)
Pond North, LLP
350 South Grand Avenue
Suite 3300
Los Angeles, CA 90071
213-617-6170 213-623-3594 (fax)
Defendants:
CBS Corporation (fka Viacom Inc., fka
Westinghouse Electric Corporation)
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BRAYTON@PURCELL LLP ATTORNEYS AT LAW 222 RUSH LANDING ROAD PO BOX 6169 NOVATO, CALIFORNIA 94948-6169. {415} 898-1555 oO OD MD NM BW Nm wR RY RNR NN RD Dm ea Se AA mA BO Yh =F SF OO YU RAaA PR wD DH BS ALAN R. BRAYTON, ESQ., 8.B. #73685 DAVID R. DONADIO, ESQ, §.B. #154436 OREN P. NOAH, ESQ., 8.B. #136310 ELECTRONICALLY BRAYTON*PURCELL LLP FILED Attorneys at Law Superior Court of California, 222 Rush Landing Road County of San Francisco P.O. Box 6169 Novato, California 94948-6169 AUG 11 2010 415) 898-1555 Clerk of the Court entative Ruling Contest Email: contestasbestosTR@braytonlaw.com °*' AU‘SON ae puty Clerk Attomeys for Plaintiff SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ANTHONY CONTE, Plaintiff, ASBESTOS No, CGC-09-275046 PLAINTIFF’S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS VS. ASBESTOS DEFENDANTS (BP) ee Date: August 24, 2010 Time: 9:30 a.m. Dept.: 220, Hon. Harold E. Kahn Trial Date: March.14, 2011 Action Filed: January 30, 2009 L INTRODUCTION Defendant HENNESSY INDUSTRIES, INC. (“HENNESSY”) erroneously claims that California law now immunizes it from the traditional notions of products liability, even though it acknowledges that plaintiff was exposed to asbestos from the use of its brake grinding machines, which, when used as intended and directed, ground up the asbestos-containing brake lining material and spewed it into the air around plaintiff, where he breathed it in. Accordingly, HENNESSY’s Motion for Judgment on the Pleadings on the products liability causes of action should be denied. : iit K Alejured\10025<1p)d\opp-HENNES- mp judament-pleadings. wp 1 PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC."S MOTION FOR JUDGMENT ON THE PLEADINGSCe TB DH HH FY Hw = wvoN PM PYM hw yo = = — &e Uk RR OH FS CeErwXIAaaREEO KR CS However, should there be some infirmity in the pleading which may be corrected by amendment, plaintiff would request leave to make such amendment. IL. FACTUAL BACKGROUND Plaintiff ANTHONY CONTE was exposed to asbestos while he was employed by an automobile dealership through the use of an Ammo brand brake grinding machine, manufactured by HENNESSY, and, thus, contracted and suffers from asbestosis and asbestos- related pleural disease. (Complaint.) He brought this action for personal injuries against various defendants which are alleged to be responsible for his asbestos exposure, including HENNESSY, which designed, manufactured and marketed Ammeo brand brake grinding machines, These machines were used to reshape asbestos-containing brake linings and, in doing so, ground up the asbestos brake lining material into a fine powder and blew it into the air. (Id.) TH. LEGAL ARGUMENT A. PLAINTIFFS HAVE STATED SUFFICIENT FACTS TO SET FORTH VALID CAUSES OF ACTION FOR DEFECTIVE PRODUCTS UNDER CALIFORNIA LAW. To state a cause of action against a manufacturer for products liability based upon negligence, a plaintiff must allege that he was injured by the defective nature of a product manufactured by the defendant. Plaintiff alleged all of this. HENNESSY argues that it somehow has no duty with regard to injuring or killing those of its customers or other users who operate its machinery in the manner in which it was designed and marketed. However, the law is clear that: “The manufacturer of a product that is reasonably certain to be dangerous if negligently made, has a duty to exercise reasonable care in the design, manutacture, testing and inspection of the product so that the product may be My safely used in a manner and for a purpose for which is was made.” (BAJ/ 9.21) Ninjuce\10925 4p! dhgpp-HENNES- mtn judgment-pleadings wed 2 PLAINTIFF’S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS,eo em NH mM Bw N Here, plaintiff has alleged that he was injured through the use, in the intended manner, HENNESSY’s brake grinding machines, which were designed and marketed for the purpose of abrading brake linings, the vast majority of which contained asbestos, and, which because of their design, caused substantial amounts of the asbestos which had been bound in the brake lining to become free and airborne, all around the plaintiff. Plaintiff also alleged that HENNESSY was similarly negligent in failing to warn him of |, such airborne asbestos exposure. Similarly, plaintiff has alleged that HENNESSY is strictly liable for the defective nature of its brake grinding machines. i. he Holding i I licable to Hi sy in this Case HENNESSY’s entire Motion is predicated upon the canard that California law has been revolutionized and that a company that designs, manufactures and markets a machine which, when used as directed, spews airborne toxins, is now immune from responsibility unless it also sold the toxins. The case of Taylor v. Elliot Turbomachinery Co. (2009) 171 Cal App.4th 564, while unique and remarkable, does not go so far as to overturn decades of established products liability law. In Taylor the defendants were pump and valve manufacturers whose products were || installed on Navy ships, without any evidence of their involvement with the asbestos-containing products used in their products. Here, defendant was not just a mere supplier of parts for a system. Rather, HENNESSY designed, manufactured and marketed brake shoe grinding || machines that had one, and only one, purpose: to reshape asbestos-containing brake linings || through mechanical abrasion. That direct involvement eliminates any claim that HENNESSY was a mere supplier of a non asbestos-containing product that somehow came into contact with someone else’s asbestas-containing product. To be clear, the plaintiff's evidence will demonstrate that HENNESSY’s products themselves were defective (both as designed and in failure to warn) because their design caused Apiured\t0925 ph d.opy-HENNES ey, pleadings wed 3 PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC."S MOTION FOR JUDGMENT ON THE PLEADINGS:all around its operators, when they used the machines as intended and, in fact, as directed by HENNESSY, both in writing and orally. The defective machines, themselves, abraded and otherwise subjected the asbestos- containing brake linings to physical forces that caused hazardous exposures to plaintiff. See e.g,, Lellez-Cordova y. Campbell-Hausfield (2004) 129 Cal App.3d 577. The Taylor court’s discussion of Garman v, Magic Chef. Inc. (1981) 117 Cal.App.3d 634 makes the point that because the stove in Garman did not itself, on the facts of Garman, present any “unreasonably dangerous condition or feature,” then the respondent stove manufacturer was not subject to liability for failure to warn. In the instant case, the facts and evidence are much different - and Garman supports plaintiff's case. Plaintiff's evidence will show that, unlike Garman, HENNESSY’s products themselves did present a dangerous design and that its features caused the plaintiff's injuries. Analogous to Garman, the instant case is one where it’s as if the respondent in Garman required dangerous/leaking copper tubing in its installation and operation - had those been the facts of Garman, which would represent an “unreasonably dangerous condition or feature of the respondent’s product,” the Garman court would have had little difficulty in holding respondent liable for failure to warn. Because HENNESSY’s products were unreasonably dangerous and always physically caused substantial releases hazardous airborne asbestos, Garman, as specifically quoted in Taylor, supports defendant’s failure to warn liability. The facts of the instant case are clearly distinguishable from the products at issue in Taylor. The products at issue in this case are machines designed by defendant HENNESSY which physically caused substantial releases of airborne asbestos when used as directed for the purpose for which is was designed, manufactured and marketed. Unlike the replacement part packing and gaskets that were at issue in Taylor, the product at issue in the instant case is the instrumentality of plaintiff's exposure to the asbestos in the brake linings. As noted above, HENNESSY is not an innocent manufacturer of a product made dangerous by the application of another party’s asbestos-containing products. HENNESSY designed, manufactured and sold their products for the express purpose of mechanically K:tlelurecht09254ipitiong HENNES mes judement-pleadings.wpd 4 PLAINTIPF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC.'S MOTION FOR JUDGMENT ON THE PLEADINGSOC wo DDR BBN RN MR RM NR ND ROR me me ee Se ee e230 Am FDP YN & SO &® UY KR WH RB Nm Oo abrading asbestos-containing brake linings and, in the process, released substantial amounts of asbestos into the air, when operated and used as intended and, in fact, directed. During ail relevant times, all of the brake linings which HENNESSY’s machines were intended to be used with contained asbestos, This fact was surely known by HENNESSY when it designed its machines, as their only purpose was to reshape asbestos-containing brake linings through abrasion. Plaintiff has alleged both negligence and strict liability theories of design defect: two bases of liability which the Taylor court specifically did not address in its decision. See, Taylor v. Elliott Turbo Machinery Co Inc., supra, footnote 4 at 572: “The only causes of action at issue in this appeal are those alleging failure to warn, under both strict liability and negligence.” See, also, “Under California law, strict products liability has been invoked for three types of product defects: (1) manufacturing defects, (2) design defects, and (3) “warning defects.” “(citation omitted) “We are here concerned solely with the third category.” (Id. at 577.) Aside from the failure to address design defect causes of action, Taylor is not controlling in this matter even as to failure to warn claims for several reasons. California law does impose, for very sound overarching public policy reasons, a duty on product manufacturers to warn of hazards inherent in defective products they make and market. Taylor endeavors to somehow revise this as regards to a specific subclass of component or other parts in defendant’s products, yet cites the very policies the Taylor holding belies when doing so. Taylor, when examined, collapses on its own premise, having much to do with its erroneous point of view and perspective. Defendant’s design and manufacture of its own products the intended use of which guarantees the subsequent release of asbestos fibers, and the resultant hazards known to occur, renders the defendant’s subject to failure to warn product liability mandates and claims of negligence under Civil Code § 1714. To be sure, plaintiff's evidence will prove asbestos dangers inherent in the defendant’s products (not those of others) so as to’substantially support the notion that HENNESSY bore a duty to warn of the hazards presented by its own products. Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64. Plaintiff will prove that defendant designed, manufactured and Ak Muredl OF2S4\pld\opp- HENNES- min udgmest-pleadings wp 3 PLAINTIFF'S OPPOSITION TO’DEFENDANT HENNESSY INDUSTRIES, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGSmarketed products solely designed for applying mechanical abrasion to asbestos-containing brake linings which, when used as intended and, in fact, directed by HENNESSY, caused its users to be exposed to substantial quantities of airborne asbestos, assuring a release of asbestos and subsequent exposure to anyone working with or around its products. Cases brought against those involved in product manufacture and sale are to be viewed through a remedial prism upon which product liability law was founded dating to Justice Tobriner’s writings in Greenman v. Yuba Power Products Inc, (1963) 59 Cal.2d 57. (See, also, Fortman v. Hemeco, Inc. (1989) 211 Cal.App.3d 241; Kasel vy. Remington Arms Co. (1972) 24 Cal.App.3d 711; Bay Summit v. Shell Oil Co, (1996) 51 Cal.App.4th 762.) As between an injured product consumer and those involved in its design and chain of distribution, the latter is to bear the loss. Taylor is not consonant with these policies it often cites and cannot be harmonized with precedent, the opinion’s 35-page effort to do so notwithstanding. Taylor is incompatible with the long standing California policy to protect “product-using citizens” injured by products used as intended. A pump shaft designed to physically abut asbestos packing, a valve stem whose ‘intended use abrades asbestos from valve packing designed to rest adjacent to the moving stem, maintenance and repair - represent the challenged design features of the defendant’s products - not others - just as in this case. That is the perspective that is missing from Taylor and one mandated by product liability law Taylor doesn’t change. 2. Rather, this Case Is Controlled by the Prevailing California Law. Including the Holding in Tellez-Cordova Defendant correctly comprehends that what it urges this Court to do is in direct conflict with the Court of Appeal’s holding in Tellez-Cordova v. Campbell-Hausfeld (2004) 129 Cal.App.4th 577. Thus, HENNESSY urges this Court to ignore that binding precedent. However, a simple reading of HENNESSY’s attempt to distinguish the facts of this case from those of Tellez-Cordova illustrates the falsity of HENNESSY’s argument. HENNESSY argues that: “The instant matter is completely distinguishable from Tellez- Tellez-Cordova. In Tellez-Cordova, the substances released from the abrasive wheels and disks were ‘aluminum oxide and other inorganic materials.’ (Tellez-Cordova, supra, Ateneo SENNES ni judarnemplend 6 PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC,’S MOTION FOR JUDGMENT ON THE PLEADINGS:Ce NY DA mH Bw wD ww Ne Ss 14 129 Cal.App 4th at 580.) Plaintiff in that matter specifically alleged that the disk and belt attachments were not harmful until they were connected to the defendants’ power tools. (1d. at 579-580.) Simply, the aluminum oxide contained in the disks and wheels was only dangerous when it became airbome. And the aluminum oxide only became airborne with the use of defendants’ power tools.” (Defendant’s Memorandum of Points & Authorities, 8:13-20, emphasis in original.) . Here, plaintiff is alleging that HENNESSY’s abrasive power tools, when used as intended and directed, released substantial amounts of asbestos into the air around the users of its brake grinding machines. Just as the aluminum oxide in the Tellez-Cordova case was not harmful until it became airborne and breathed into the plaintiff’s lungs, the asbestos in the brake linings was not harmful until it “became airborne with the use of the defendants’ power tools” and was breathed into plaintiff's lungs. B. DEFENDANT HENNESSY’S ATTEMPT TO CITE AND REFER TO A TRIAL COURT CASE DECISION IS IMPROPER AND SHOULD BE DISREGARDED. Plaintiff objects to HENNESSY’s attempt to cite an unpublished trial court opinion in an unrelated case. This citation is clearly a violation of California Rule of Court Rule 8.1115, which provides, in relevant part, that "[a]n opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action." Likewise, it is improper to cite to a trial court opinion in an unrelated case. (See Santa Ana Hosp, Med. Ctr. v. Belshe (1997) 56 Cal.App4th 819, 831.) In fact, such citations may expose HENNESSY’s counsel to sanctions. (See Alicia T. v, County of Los Angeles (1990) 222 Cal.App.3d 869, 885*886.) Plaintiff further objects to HENNESSY’s improper and unsupported attempt to request judicial notice regarding this unrelated case. C.C.P. § 438(d) provides that the grounds for a motion for judgment on the pleadings “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” The court “must” or “may” judicially notice certain matters under Evidence Code §§ 451 & 452, respectively. Here, HENNESSY appears to be asking that the court use its permissive judicial notice powers under Evid. Code § 452(d) for the “records of any court in Mh K Mojuredt03254\pld\ypo HENNES -mo-adyment pleadings pd 7 PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS.Co me WI Rw Bb BN DMN NN NR NK RS Sew ets A vA FY HP =-— So we IHR HA BR WY HR = this state.” However, just because a matter is contained within a court record, it is not necessary the proper subject of judicial notice. Here, HENNESSY is attempting to use the judicial notice provision to “shoehorn” this | Court into considering the ruling of a sister trial court in an unrelated matter on the same legal || issue that is before this Court. Judicial notice for court records is “limited to matters that are indisputably true. (Fremont Indem, Co. v. Fremont Gen, Corp. (2007) 148 Cal. App.4th 97, 113.) Such judicial notice cannot be used to accept as true the contents of pleadings or other documents, as such matters are inadmissible hearsay. (Day v. Sharp (1975) 50 Cal.App.3d 904, | 914.) A court may take judicial notice of the existence of a finding of fact made in another action, but it may not accept the finding as true. As explained by J. Weil and I. Brown, in Calif. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) {]7:15.5, “Otherwise the judge in the first case would be made ‘infallible’ on all matters, usurping the doctrines of res judicata and collateral estoppel.” Because the other trial court case is unrelated to this action, the order for which HENNESSY seeks judicial notice is not an element of proof for any matter of claim or defense in this action. Thus, its existence does not control the rights and duties of the parties herein and, is not subject to judicial notice. Further, just as it is improper for HENNESSY to ask this Court to judicially notice to || facts found by that other trial court judge, it is improper for HENNESSY to ask this Court to judicially notice the conclusion of law reached by that other trial court judge. Cc. SHOULD THE COURT DETERMINE THAT THE COMPLAINT IS INADEQUATE, THEN PLAINTIFFS WOULD REQUEST LEAVE OF COURT TO AMEND ACCORDINGLY. The Court is to use the same standards for requests for leave to amend in response to motions for judgment on the pleadings as for demurters, and leave is to be routinely granted. (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 692. “Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the a KNMnjured10925tpld.opp-HENNES. men jadgmentpleadings wp 8 PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, INC,"§ MOTION FOR JUDGMENT ON THE PLEADINGSSoS eo NADH Bw NG tah ket aA WwW F&F BR NH K S&S 18 19 20 21 22 23 24 25 26 27 28 pleading does not show on its face that it is incapable of amendment.” (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal. App.4th 1848, 1852.) Thus, should the Court determine that there is an insufficiency in the Complaint, plaintiff would request leave of Court to respond to HENNESSY’s Motion for Judgment on the Pleadings on such matters, CONCLUSION For the foregoing reasons, the Court should deny defendant HENNESSY INDUSTRIES, INC.’s Motion for Judgment on the Pleadings with respect to the products liability (negligence and strict liability) causes of action. Alternatively, should the Court determine that there is an insufficiency in the Complaint, plaintiff would request leave of Court to respond to HENNESSY’s Motion for Judgment on the Pleadings on such matters. Dated: _AUG 10 2010 Atforneys for Plaintiff [To comply with Department 220's rules regarding tentative rulings, you must call the Law & Motion Message Line (415) 493-3594 to give us notice if you wish to contest a tentative ruling. A copy of any email notification to Dept. 220 must be sent to contestasbestosT R@braytonlaw.com.] Sfnjure\10025 Ned gop: MENNES-mun-odgmentpleadings wod 9 PLAINTIFF’S OPPOSITION TO DEFENDANT HENNESSY !NDUSTRIES, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS:BRAYTON@PURCELL LLP ATIORNEYS AT LAW 222 RUSH LANDING ROAD POBOX 6169 NOVATO, CALIFORNIA 94948-6169 {AIS} 898-1555. 1 PROOF OF SERVICE BY LEXIS-NEXIS E-SERVICE 1am employed in the County of Marin, State of Califormia. I am over the age of 18 ears and am not a party to the within action. My business address is 222 Rush Landing Road, .O. Box 6169, Novato, California, 94948-6169. On August 11, 2016, I electronically served (E-Service), pursuant to General Order No. 158, the following documents: 2 3 4 5 PLAINTIFF'S OPPOSITION TO DEFENDANT HENNESSY INDUSTRIES, 6 INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS; [PROPOSED] ORDER 7 8 9 on the interested parties in this action by utilizing Lexis-Nexis E-service program pursuant to General Order No. 158, to transmit a true copy thereof to the following party(ies): SEE ATTACHED SERVICE LIST 10 The above document(s) were transmitted by Lexis-Nexis E-Service. i Executed on August 11, 2010, at Novato, California. 12 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. . i , ~S dA A Diane I. Davidowski 19]| Anthony Conte v. Asbestos Defendants (BP. San Francisco Superior Court Case No. CGC-09-275046 PROOF OF SERVICE BY E-SERVICEBrayton-Purcell Service List Date Created: 8/10/2010-22:23:57 PM (DED) Created by: LitSupport - ServiceList ~ Reporting Matter Number: 109254.001 - Anthony Conte Bassi, Edlin, Huie & Blum LLP 351 California Street, Suite 200 San Francisco, CA 941) 415-397-9006 $15397-1339 (fax) Defendants: J.T, Thorpe & Son, Inc. (THORPE) Parker-Hannifin Corporation (PARKHF) Gordon & Rees LLP Embarcadero Center West 275 Battery Street, Suite 2000 San Francisco, CA 445-986-5900 415~ 986 8054 (fax) Defendants: ssenKrupp Budd Company (fka The Bud iyesmpare) (BUDD) McKague & Fong, LLP. 3 Montgomery tre eet Suite 1100 San Francisco, 415-409-5222 fisea05- "0467 (fax) Defendants: aur" Northern Santa Fe Corporation Sedgwick, Detert, Moran & Arnold One Market Plaza Steuart Tower, 8" Floor San Francisco, CA 9410: 415-781-7900 415-781 638 {fax} Defendants: General Electric Company (GE) Po Bax te 160° 5o30 Lakeshore dyenue Oakland, CA 94610 510-835-8330 $10-835-5117 (fax) Defendants: Berry & Berry (B&B) . Hassard Bonnington LLP Two Embarcadero Center Suite 1800 San Francisco, CA $4111 415-288-9800 415-288-9802 (fax) Defendants: Honeywell International, Inc. (HONEY W} Perkins Coie LLP Four Embarcadero Soper, Suite 2400 San Francisco, CA i 415-344-7000 fis sad. 7288 (fax) Defendants: Honeywell International, Inc. (HONEY W) Walsworth, Franklin, Bevins & MeCall 601 Montgome Street, 9* Floor © San Francisco, iN 4ts. 781-7072 fs 391-6258 (fax) Defendant Quinte tndustries, Inc. (QUINTC) Run By : Davidowski, Diane Gordon & Rees LLP 101] West Broadway Suite 2000 San Diego, CA 921 619-696-6700 319-696-7124 (fax) Defendants: Hennessy Industries, Inc. (HENNES) 1 sage & Tong, LLP 641 Fulton Avenue Suite 130 Sacramento, CA 95825 916-974-3000 916-974-7063 (fax) Defendants Union Pacifi fic Railroad Company (UP) Pond North, LLP 350 South Grand Avenue Suite 3300 Los Angeles, CA 90071 213-617-6170 213-623-3594 (fax) Defendants: CBS Corporation (fka Viacom Inc., fka Westinghouse Electric Corporation)