Rondon v. Hennessy Industries, Inc.

Opinion

I.

INTRODUCTION

Appellant Renee Rondon, as the successor in interest to her late husband Frank Rondon, appeals the trial court’s award of summary judgment in favor of Hennessy Industries, Inc. (Hennessy). Frank Rondon developed mesothe-lioma as the result of exposure to asbestos while working as a mechanic.

Craig Mountz, a product engineer who had been employed by Hennessy since 1975, also submitted a declaration about the use of the grinders on nonasbestos brakes. He stated Hennessy grinders did not contain asbestos. Hennessy “brake shoe arcing machines are designed to reshape the friction material of a brake shoe (brake lining), regardless of the brake shoe’s composition.” Hennessy “brake shoe arcing machines were not specifically designed or intended to be used solely with asbestos-containing brake linings, or any other type of brake shoe lining.” Hennessy designed additional abrasives to better tailor its machines to different brake linings and created a grit abrasive for nonasbestos metallic brakes. “Although the high performance grit would last longer than the standard grit in high volume situations involving metallic and high-performance linings, both the standard grit and the high performance grit were capable of and could in fact arc metallic and high-performance brake linings.”

In arguing it was entitled to summary judgment as a matter of law, Hennessy distinguished two recent decisions by our court: Shields v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 782 [ 140 Cal.Rptr.3d 268 ] (Shieldsj, and Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103 [ 141 Cal.Rptr.3d 167 ] (Bettencourt). Shields and Bettencourt both held that allegations against Hennessy could survive motions for judgment on the pleadings because Hennessy could potentially be liable, as the grinders’ sole, intended, and inevitable use was to grind asbestos-containing brakes. Unlike those cases, Hennessy argued that here, at the summary judgment stage where the court can consider evidence, the undisputed facts show the grinders were not designed exclusively to be used with asbestos-containing brakes.

Rondon filed an opposition arguing that Hennessy’s grinders substantially contributed to Rondon’s asbestos exposure, citing O’Neil v. Crane Co. (2012) 53 Cal.4th 335 [ 135 Cal.Rptr.3d 288 , 266 P.3d 987 ] (O’Neil) and Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129

Rondon also submitted the deposition of Hennessy employee Craig Mountz. In his deposition, Mountz stated he did not know what percentage of brakes had asbestos lining but “our grinder grinds any kind of brakes, so it wouldn’t matter if they banned asbestos and went to full metallic. It wouldn’t have mattered to us from a machine standpoint.” The standard grit would work on any brake type. Mountz explained a mechanic could use either grit on either kind of brake but “the grit for metallic brakes would last a little bit longer.”

The action of the grinders released dust. Mountz agreed the main concern with the grinders was the release of that dust. Beginning in 1973, Hennessy provided an asbestos dust collector bag as standard equipment. The dust collector was for all kinds of dust, but the “big push in 1973” was to collect asbestos dust. Prior to 1973, the grinders did not have any warning about the dust or use of a dust bag.

Summary Judgment Order

The court granted Hennessy’s motion for summary judgment, concluding it was impossible for Rondon to establish liability under the four key authorities: O’Neil, Tellez-Cordova, Shields, and Bettencourt. Rondon could not prove that its grinders were manufactured to be used exclusively and inevitably with asbestos-containing brakes. The court referred to the declaration of Dr. Darnell, who confirmed that several companies marketed nonas-bestos brakes during the 1960’s and 1970’s. Darnell explained that although nonasbestos brakes were less frequently used, they were regularly seen on sports cars and other high performance “muscle” cars. Mountz testified that Hennessy grinders were used on standard brakes and that Hennessy offered three different grit belts for the grinders depending on the type of brakes. The court also noted that Rondon did not dispute that nonasbestos brakes were used, although their use was minimal.

The court did not directly address Rondon’s negligence claim.

DISCUSSION

A. Standard of Review

We summarized the well-known procedural rules and standard of review applicable to motions for summary judgment recently in Ram’s Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071 , 1078-1079 [ 185 Cal.Rptr.3d 935 ] (Ram’s Gate Winery):

“Summary judgment and summary adjudication provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Code Civ. Proc., § 437c, subd. (f)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 , 843 [ 107 Cal.Rptr.2d 841 , 24 P.3d 493 ] . . . (Aguilar).) A defendant moving for summary judgment or summary adjudication may demonstrate that the plaintiff’s cause of action has no merit by showing that (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (f)(2), (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) This showing must be supported by evidence, such as affidavits, declarations, admissions, interrogatory answers, depositions, and matters of which judicial notice may be taken. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850, 855; Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582 , 587 [ 176 Cal.Rptr.3d 279 ] . . . .)

“After the defendant meets its threshold burden, the burden shifts to the plaintiff to present evidence showing that a triable issue of one or more

material facts exists as to that cause of action or affirmative defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff may not simply rely on the allegations of its pleadings but, instead, must set forth the specific facts showing the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists if, and only if, the evidence reasonably permits the trier of fact to find the contested fact in favor of the plaintiff in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 850.)

“In ruling on the motion, the trial court views the evidence and inferences therefrom in the fight most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 , 768 [ 107 Cal.Rptr.2d 617 , 23 P.3d 1143 ] . . . (Saelzler).) If the trial court concludes the evidence or inferences raise a triable issue of material fact, it must deny the defendant’s motion. (Aguilar, supra, 25 Cal.4th at p. 843; Saelzler, supra, 25 Cal.4th at p. 768.) But the trial court must grant the defendant’s motion if the papers show there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

“ ‘We review an order granting summary judgment or summary adjudication de novo. (Aguilar, supra, 25 Cal.4th at p. 860.) We independently examine the record to determine whether a triable issue of material fact exists. (Saelzler, supra, 25 Cal.4th at p. 767.) The trial court’s stated reasons for granting summary judgment or summary adjudication are not binding on us because we review its ruling, not its rationale. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688 , 694 [ 23 Cal.Rptr.3d 915 ] . . . [“The sole question properly before us on review of the summary judgment is whether the judge reached the right result . . . whatever path he might have taken to get there . . . .”].)’ (Collin v. CalPortland Co., supra, 228 Cal.App.4th at p. 588, italics omitted).” (Ram’s Gate Winery, supra, 235 Cal.App.4th at pp. 1078-1079.)

B. Strict Liability

Strict liability is imposed for three types of product defects: manufacturing defects, design defects, and warning defects. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987 , 995 [ 281 Cal.Rptr. 528 , 810 P.2d 549 ] (Anderson).) Rondon argues that Hennessy’s machines caused the release of asbestos dust when used on standard brake finings and Hennessy failed to give adequate warning that its grinders released asbestos dust. Rondon also argued the grinders were defectively designed and did not protect users from airborne asbestos.

On appeal the manufacturers argued that their tools could be used with a “ ‘universe of grindable products’ ” on all types of materials, but the court did not consider these facts at the demurrer stage and relied solely on the allegations in the complaint. (Tellez-Cordova, supra, 129 Cal.App.4th at p. 582.) In reversing the trial court’s ruling, the appellate court noted that the complaint alleged that the application of the abrasive discs or wheels that produced toxic dust was the “inevitable use” of the tools. (Id. at p. 584.) The “allegation is that the tools had no function without the abrasives which disintegrated into toxic dust.” (Id. at p. 585.)

The O’Neil court distinguished Tellez-Cordova on two grounds. First, the power tools in Tellez-Cordova could "'only be used in a potentially injury-producing manner.” (O’Neil, supra, 53 Cal.4th at p. 361, original italics.) The tools’ “sole purpose” was to grind metals which would produce harmful dust. (Ibid.) To the contrary, in O’Neil the normal operation of the pumps and valves did not “inevitably cause the release of asbestos dust.” (Ibid.) Second, the action of the power tools in Tellez-Cordova caused the release of harmful dust. (Ibid.) “Where the intended use of a product inevitably creates a hazardous situation, it is reasonable to expect the manufacturer to give warnings.” (Ibid.) But manufacturers are not required to warn about all foreseeable harms that might occur in the vicinity of their products. (O’Neil, at p. 362.)

More recently this district issued two opinions, Shields and Bettencourt, applying O’Neil and Tellez-Cordova. Both cases involved claims against Hennessy that were dismissed by the trial court on motions for judgment on the pleadings. (Shields, supra, 205 Cal.App.4th 782 ; Bettencourt, supra, 205 Cal.App.4th 1103 .) In Shields, the plaintiff was a mechanic who was diagnosed with lung cancer from asbestos exposure. He alleged Hennessy was liable in negligence and strict liability. (Shields, supra, 205 Cal.App.4th at p. 784.) The complaint alleged that Hennessy grinders were designed for use on cars and trucks with brakes that contained asbestos. (Id. at p. 786.) Hennessy “ ‘specifically designed [its] machines for grinding asbestos-containing brake linings [and they] had no other function than to grind asbestos-containing brake linings.’ ” (Id. at p. 787.) This was their “ ‘only intended use.’ ” (Ibid.)

Division One of this court held that the plaintiffs’ causes of action were sufficient to survive a motion for judgment on the pleadings. (Shields, supra, 205 Cal.App.4th at p. 797.) Plaintiffs alleged that Hennessy designed and

Division Five reached a similar result in Bettencourt. The trial court had granted judgment on the pleadings on strict liability and negligence causes of action against Hennessy. (Bettencourt, supra, 205 Cal.App.4th at p. 1111.) The complaint alleged that “[djuring the periods relevant to this litigation, all brakeshoe [«'c] linings used on automobiles, light trucks, and commercial trucks in the United States contained asbestos.” {Id. at p. 1108.) Hennessy’s grinders were specifically designed to grind brakes and had no other function. (Ibid.) The allegation was the sole and intended purpose of Hennessy’s grinders was to grind brakes and all brake shoe linings in the United States contained asbestos, so “it was not only foreseeable that Hennessy’s machines would be used to grind such linings, this was their inevitable use.” (Bettencourt, supra, 205 Cal.App.4th at p. 1117.) This allegation is “indistinguishable from those Tellez-Cordova held sufficient to survive demurrer.” (Bettencourt, at p. 1117.) “Under the allegations of plaintiffs’ complaints, which we must accept as true, Hennessy’s ‘product was intended to be used with another product for the very activity that created a hazardous situation: ” (Ibid., citing O’Neil, supra, 53 Cal.4th at p. 361.) Hennessy bears some direct responsibility because its product substantially contributed to the harm. (Bettencourt, at p. 1117.) Therefore, the court concluded that “[ljike our colleagues in Division One, we hold that plaintiffs’ ‘allegations satisfy the circumscribed parameters of liability articulated by the Court of Appeal in Tellez-Cordova and approved by the Supreme Court in O’Neil: ” (Bettencourt, at p. 1112, citing Shields, supra, 205 Cal.App.4th at p. 798.)

The most recent case to address Hennessy’s liability is Sherman. (Sherman, supra, 237 Cal.App.4th 1133 .) The Second District reversed an award of summary judgment in favor of Hennessy. The plaintiffs asserted claims for negligence, strict liability and loss of consortium. (Id. at p. 1137.) The plaintiffs alleged that Hennessy sold grinders whose “ ‘sole function’ ” was to abrade asbestos-containing brake linings, and asbestos dust was released when the grinders were used. (Ibid.) Hennessy argued that it could not be

The evidence presented in Sherman is strikingly similar to the evidence presented by Hennessy in this case. Hennessy relied on the declaration of an industrial safety expert, Dennis Bridge, and Craig Mountz, a Hennessy engineer. (Sherman, supra, 237 Cal.App.4th at p. 1144.) Bridge stated that nonasbestos brake linings were available in the 1960’s and 1970’s for popular “muscle” cars and some passenger cars. (Ibid.) Mountz stated that the grinders were designed to work on any type of brake, regardless of whether it contained asbestos. (Ibid.) Hennessy manufactured different abrasives “ ‘to better tailor’ ” the machine to certain metallic and high performance brake linings. (Ibid.) Hennessy maintained that during the time Sherman worked with its grinders, there were nonasbestos brakes available and being used. (Id. at pp. 1144-1145.)

Sherman presented evidence that during the 1960’s and 1970’s brake linings “ ‘almost universally’ ” contained asbestos. (Sherman, supra, 237 Cal.App.4th at p. 1145.) Like Rondon in this case, Sherman submitted the declaration of an industrial safety expert who explained that as late as 1986, 90 to 95 percent of brake linings contained asbestos. (Id. at p. 1145.) In 1973, Hennessy began offering an asbestos dust collection system with its grinders along with a warning label that “ ‘brake lining materials contain asbestos.’ ” (Id. at p. 1146, original capitalization omitted.)

The Second District limited its analysis to whether the Hennessy grinder “contributed substantially to the harm.” (Sherman, supra, 237 Cal.App.4th at pp. 1146-1147.) A duty is imposed when “ ‘the intended use of a product inevitably creates a hazardous situation,’ but not when that situation is merely foreseeable and is due solely to another product.” (Id. at p. 1147, original italics, quoting O’Neil, supra, 53 Cal.4th at pp. 361-362.) The court concluded that Hennessy’s grinders were designed to abrade brake linings for passenger cars and light trucks, “the vast majority of which contained asbestos from the 1960’s to the mid-1970’s.” (Sherman, at p. 1147.) Hennessy even began to market an asbestos dust collection system because asbestos brakes were “ ‘near universal.’ ” (Ibid.) The grinder necessarily produced dust in its intended use which made it “virtually inevitable that the average user would be exposed to hazardous asbestos dust.” (Id. at p. 1148.) “[T]he machine was intended to be used with drum brake linings ‘for the very activity’ that generated the asbestos dust, the creation of which was ‘inevitabl[e]’—rather than merely foreseeable—due to the overwhelming prevalence of asbestos-containing linings.” (Ibid., fn. omitted.)

We agree with the Second District and conclude that O’Neil does not require “exclusive use,” but rather requires “inevitable use.” (See Sherman, supra, 237 Cal.App.4th at p. 1149.) O’Neil does not use the term exclusive use; it mentions inevitable use: “Where the intended use of a product inevitably creates a hazardous situation, it is reasonable to expect the manufacturer to give warnings.” (O’Neil, supra, 53 Cal.4th at p. 361, italics added.) The O’Neil court mentioned the concept of a “sole purpose” when distinguishing Tellez-Cordova. (O’Neil, at p. 361.) The court stated that unlike the pumps and valves, the power tools in Tellez-Cordova could only be used in an injury-producing manner. “Their sole purpose was to grind metals in a process that inevitably produced harmful dust.” (Ibid., italics added.) Shields and Bettencourt echo this “sole use” concept but only to the extent they are accepting the language used in the allegations of the complaint. Both cases conclude the plaintiffs’ allegations that the grinders’ “sole” use was to grind asbestos-containing brakes is sufficient to satisfy O’Neil. (See Shields, supra, 205 Cal.App.4th 782 ; Bettencourt, supra, 205 Cal.App.4th 1103 .) But neither case holds that a finding of sole or exclusive use is necessary under O’Neil.

The question then becomes: If “virtually all” brake linings during the relevant time period contained asbestos, which resulted in Hennessy’s machines being used 95 or 99 percent of the time to grind brakes producing asbestos dust, did the intended use of the product inevitably create a

The facts here are more akin to Tellez-Cordova because the action of the grinders caused the release of asbestos dust from the brakes. The hazard was created from the use of the products together. (Shields, supra, 205 Cal.App.4th at p. 797.) Unlike the pumps and valves in O’Neil, the grinders here contributed to the hazard by releasing the asbestos dust from the brake linings. “[Hennessy’s] machine’s role in the creation of the relevant hazardous condition was not merely foreseeable, but intended and contributed substantially to the condition itself. Similarly, unlike the pumps and valves in O’Neil, which did not cause the release of asbestos fibers, here, it was the grinding action of [Hennessy] ’s machine that generated the release of harmful asbestos dust.” (Sherman, supra, 237 Cal.App.4th at p. 1148, fn. 4.)

The Sherman court rejected Hennessy’s argument that the Tellez-Cordova exception only applied when a product can solely be used in an injury-producing manner. (Sherman, supra, 237 Cal.App.4th at pp. 1148-1149.) “We find the relevant question not whether asbestos-containing brake linings were necessary to the operation of [Hennessy]’s machine, as Hennessy maintains, but whether someone using the grinder as intended during the period in question would invariably have been subjected to asbestos dust.” (Id. at p. 1149.) The court concluded that use of the machine “ ‘for the very activity that created a hazardous situation’ was not merely possible, but inevitable.” (Ibid., quoting O’Neil, supra, 53 Cal.4th at p. 361.)

The Sherman court found that Hennessy grinders were designed for passenger cars and trucks, “the vast majority of which contained asbestos from the 1960’s to the mid-1970’s.” (Sherman, supra, 237 Cal.App.4th at

We are further persuaded by the policy argument advanced in Sherman. Because a manufacturer derives an economic benefit from use of its product with certain other products, and “the combined use of the tool with those products inevitably created a hazardous condition, it was fair to require the tool manufacturer to share liability for the resulting injuries.” {Sherman, supra, 237 Cal.App.4th at p. 1149.) The policy rationale underlying Tellez-Cordova was that if a manufacturer’s product contributed to the hazardous situation, the manufacturer should be held liable. The combined use of Hennessy’s machines with the asbestos-containing brakes inevitably created a hazardous condition by releasing asbestos fibers into the air. Hennessy was in a position to provide safeguards from this exposure. Hennessy’s ability do to this is evidenced by the addition of asbestos dust collectors to all machines in 1973. Rondon should therefore be given the opportunity to prove that Hennessy shares liability for injuries resulting from the hazardous condition created by the use of its grinders in the 1960’s and 1970’s.

C. Negligence

The existence of a duty of care is a legal question for the court. (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564 , 593 [ 90 Cal.Rptr.3d 414 ].) The question before us is the same as posed in O’Neil: whether a manufacturer owes a duty of care to prevent exposure posed by another manufacturer’s product. (O’Neil, supra, 53 Cal.4th at pp. 364-365.)

Bettencourt held the plaintiffs had stated a cause of action for negligence because strict liability and negligence parallel and supplement each other. (Bettencourt, supra, 205 Cal.App.4th at p. 1118.) The same policy considerations that militate in favor of the imposition of strict liability apply with equal force to negligence. {Ibid.) “Because plaintiffs state a cause of action for strict liability under the rules announced in O ’Neil, we likewise find their allegations sufficient to state a cause of action for negligence.” (Bettencourt, at p. 1118.)

Under O’Neil, a product manufacturer may be liable for the harm caused by another product where the manufacturer’s product contributes substantially to the harm. (O’Neil, supra, 53 Cal.4th at p. 362.) In Rowland v. Christian (1968) 69 Cal.2d 108 [ 70 Cal.Rptr. 97 , 443 P.2d 561 ] {Rowland), our Supreme Court set forth the principal factors we must weigh

In light of our analysis of the strict liability issue, we conclude that there is also a triable issue as to negligence. We will, however, briefly review the Rowland factors as they apply here.

Rondon stresses the first factor: The foreseeability of the risk Hennessy’s grinders posed to mechanics using them. The recognition of a legal duty of care “ ‘ “depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.” ’ ” (O’Neil, supra, 53 Cal.4th at p. 364, quoting Burgess v. Superior Court (1992) 2 Cal.4th 1064 , 1072 [ 9 Cal.Rptr.2d 615 , 831 P.2d 1197 ].) In O’Neil, the court held it was not foreseeable that the plaintiff, who worked around the manufacturer’s pumps and valves more than 20 years after they were sold would develop an injury nearly 40 years after his workplace exposure. (O’Neil, at p. 365.) Here, the intended use of the grinders was to grind brake linings, the vast majority of which contained asbestos. Hennessy knew the normal and intended use of its grinders released asbestos dust. The “alleged injuries were not unforeseeable merely because Hennessy’s brakeshoe [ sic\ grinding machines did not themselves contain asbestos.” (Bettencourt, supra, 205 Cal.App.4th at p. 1118.) Hennessy is liable for the design and warning defects of its own product, which produced harmful asbestos dust during normal use in grinding brake linings. (See id. at pp. 1118-1119.) We conclude it was foreseeable the average user would be exposed to asbestos dust.

Hennessy does not dispute the second factor that Rondon’s death was caused by mesothelioma from exposure to asbestos, but argues the third factor, claiming that connection between Hennessy’s conduct and Rondon’s injuries is remote. Rondon used Hennessy’s arcing machines beginning in 1965 when “virtually all” brake linings contained asbestos. (Contra, Taylor v. Elliott Turbomachinery Co., Inc., supra, 171 Cal.App.4th at pp. 594-595 [“Respondents’ allegedly culpable conduct is the failure to warn of a danger arising from other manufacturers’ products two decades after respondents delivered their products to the Navy. Any connection between respondents’ conduct and

The fourth factor is moral blame. While Hennessy did not manufacture an asbestos product, it knew for decades that its machines, when used as intended, would release hazardous asbestos dust into the air. When required by regulations in 1973, Hennessy provided asbestos dust collectors and warnings about asbestos dust on all machines. Hennessy, therefore, should bear some level of responsibility for the asbestos exposure caused by use of its grinders, which could have been reduced or prevented by warnings or added safety features.

As to the fifth factor, whether imposing a duty of care could prevent future harm, Hennessy had the ability to lessen the harm from use of its grinders. In O’Neil, the court concluded “[t]here is no reason to think a product manufacturer will be able to exert any control over the safety of replacement parts or companion products made by other companies.” (O’Neil, supra, 53 Cal.4th at p. 365.) Here, Hennessy could have exerted control over the safety of its machines by providing an asbestos dust collection system (prior to 1973) and providing warnings. Hennessy may not have been able to control the types of brakes manufactured by other companies, but it could ensure that its machines were more safely used with any type of brake. “Hennessy is not being asked to ‘insure against products over which [it has] no control.’ . . . [Plaintiffs seek to hold Hennessy liable for design and warning defects in Hennessy’s own product, not the products of others.” (Bettencourt, supra, 205 Cal.App.4th at p. 1118.)

The sixth factor is the burden on defendant and consequences for imposing a duty of care. “Even when foreseeability was present,” our Supreme Court has “declined to allow recovery on a negligence theory when damage awards threatened to impose liability out of proportion to fault or to promote virtually unlimited responsibility for intangible injury.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370 , 398 [ 11 Cal.Rptr.2d 51 , 834 P.2d 745 ].) Mesothelioma caused by direct exposure to asbestos being released by the use of Hennessy grinders does not extend liability to an unlimited number of individuals. Imposing such a duty undoubtedly creates a burden on Hennessy, but this burden is not out of proportion to its fault in creating the harm.

The final factor is the availability and cost of insurance for the risk involved. This factor counsels against finding a duty of care where a manufacturer must ensure against the “ ‘unknowable risks and hazards’ lurking in every product that could possibly be used with or in the manufacturer’s product. [Citation.]” (O’Neil, supra, 53 Cal.4th at p. 365.) Here,