Filed 6/18/15 Greenberg v. Super. Ct. CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
DAVID GREENBERG et al., B262432
Petitioners, (Los Angeles County
Super. Ct. No. BC555224)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
HENNESSY INDUSTRIES, INC. ,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Joseph R. Kalin, Judge. Petition
Granted.
Simon Greenstone Panatier Bartlett and Brian P. Barrow for Petitioners.
No appearance by Respondent.
Gordon & Rees, Don Willenburg and Mitchell B. Malachowski for Real
Party in Interest.
Petitioners David and Gloria Greenberg asserted products liability claims
against real party in interest Hennessy Industries, Inc. (Hennessy), alleging that a
brake lining arcing machine manufactured by its predecessor in interest released
asbestos dust that caused David Greenberg’s mesothelioma. The trial court
granted summary judgment in Hennessy’s favor on petitioners’ claims, concluding
that Hennessy was not liable for injury caused by asbestos dust from brake linings
its predecessor in interest neither manufactured nor distributed. Petitioners seek a
writ directing the trial court to vacate the grant of summary judgment and to enter a
new order denying Hennessy’s motion for summary judgment or adjudication. We
grant the petition for writ of mandate.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The following facts are not in dispute: From the early 1950’s to the 1980’s,
the Automotive Maintenance Machinery Company (AMMCO) manufactured an
“arcing” machine designed to grind drum brake linings for cars and light passenger
trucks with standard sized brake shoes. From the early 1950’s to the 1980’s, the
great majority of such drum brake linings contained asbestos. Because the
AMMCO machines created dust when used, AMMCO equipped them with a dust
collection system to collect dust from the linings being abraded. Asbestos-
containing brake linings were so prevalent that in 1973, AMMCO began using a
system that it called an “‘asbestos dust collector.’”
From 1960 to 1986, David Greenberg worked as a full time auto mechanic
in New York City and Los Angeles. In 1967, he established his own business in
the San Fernando Valley, and bought a new AMMCO machine equipped with a
dust collection system. Until 1986, when the business closed, Greenberg used the
AMMCO machine. In June 2014, he was diagnosed as suffering from malignant
pleural mesothelioma.
2
In August 2014, petitioners initiated the underlying action against several
defendants, including Hennessy as AMMCO’s alleged successor in interest,
asserting products liability claims based on negligence and strict liability, as well
as claims for conspiracy and loss of consortium. The claims are founded on
allegations that the AMMCO machine, when used as intended to grind drum brake
linings, released asbestos dust, that Hennessy failed to give adequate warnings
regarding that fact, and that the machine’s release of asbestos dust -- despite the
presence of a dust collection system -- constituted a design defect.
Relying on O’Neil v. Crane Co. (2012) 53 Cal.4th 335 (O’Neil), Hennessy
sought summary adjudication or summary judgment, contending that it had no
liability for petitioners’ alleged injuries on any theory for a single reason, namely,
that it was not legally responsible for injuries attributable solely to products
AAMCO neither made nor distributed. Hennessy argued that the AMMCO
machine itself contained no asbestos, and that petitioners otherwise could not
establish the circumstances necessary for the imposition of liability on a
manufacturer for injury from products it neither made nor distributed. Hennessy
maintained that under O’Neil, no such liability arose unless the AMMCO
machine’s sole intended purpose was to abrade asbestos-containing brake linings.
That condition, Hennessy argued, could not be demonstrated because the AMMCO
machine had the capacity to abrade asbestos-free brake linings, which were
available in the 1960’s and 1970’s.
In opposing summary adjudication and summary judgment, petitioners
submitted evidence that from the 1950’s to the mid-1980’s, it would have been
“‘impossible’” for an average garage worker using the AMMCO machine not to
have ground asbestos-containing brake linings. In addition, petitioners offered
evidence that the AMMCO machines released asbestos dust despite the presence of
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dust collection systems, including the asbestos dust collector that AMMCO began
offering in 1973.
On February 27, 2015, the trial court granted summary judgment, stating:
“The [AMMCO] machine in no way contributed to [petitioners’] harm.
[Citations.] The machine was not designed for the purpose of only grinding
asbestos[-containing] brake shoes. The dust collection bag was not placed on the
machine as a means of protecting users from asbestos. [Citation.]” On March 5,
2015, petitioners filed their petition for writ of mandate. We issued an order to
show cause on March 17, 2015.
DISCUSSION
Petitioners challenge the grant of summary judgment, contending there are
triable issues regarding Hennessy’s potential liability for their injuries. For the
reasons discussed below, we agree.
A. Relief By Writ
At the threshold, we address the propriety of our review of the summary
judgment. “Immediate writ review of an order granting summary judgment against
some but not all of the defendants in a case is appropriate where the trial is
proceeding against one or more codefendants. [Citation.] Immediate review is
preferable to obviate possible multiple trials in the case. [Citation.]” (Johnson v.
Superior Court (2006) 143 Cal.App.4th 297, 304 (Johnson).)
In October 2014, the trial court granted petitioners a preferential trial date of
February 17, 2015, following their presentation of expert medical opinion that
Greenberg’s health was deteriorating due to his mesothelioma, and that there was
considerable doubt of his survival beyond six months. In January 2015, at the
request of one of Hennessy’s co-defendants, the trial date was continued to March
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2, 2015. Following the grant of summary judgment in Hennessy’s favor, the trial
court agreed to continue trial to permit petitioners to seek writ review.
Under the circumstances, immediate review of the summary judgment
would potentially avoid a second trial against Hennessy in which Greenberg’s
participation would be doubtful. Furthermore, the issues presented are primarily
questions of law, making their resolution by writ review appropriate. (Fisherman’s
Wharf Bay Cruise Corp. v. Superior Court (2004) 114 Cal.App.4th 309, 319.) We
therefore exercise our discretion to review the summary judgment. (Johnson,
supra, 143 Cal.App.4th at p. 304.)
B. Standard of Review
“A defendant is entitled to summary judgment if the record establishes as a
matter of law that none of the plaintiff’s asserted causes of action can prevail.
[Citation.]” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Generally,
“the party moving for summary judgment bears an initial burden of production to
make a prima facie showing of the nonexistence of any triable issue of material
fact; if he carries his burden of production, he causes a shift, and the opposing
party is then subjected to a burden of production of his own to make a prima facie
showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar), fn. & italics omitted.) In
moving for summary judgment, “all that the defendant need do is to show that the
plaintiff cannot establish at least one element of the cause of action -- for example,
that the plaintiff cannot prove element X.” (Id. at p. 853.)
“‘Review of a summary judgment motion by an appellate court involves
application of the same three-step process required of the trial court. [Citation.]’”
(Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662.) The
three steps are (1) identifying the issues framed by the complaint, (2) determining
5
whether the moving party has made an adequate showing that negates the
opponent’s claim, and (3) determining whether the opposing party has raised a
triable issue of fact. (Ibid.) Following a grant of summary judgment, we review
the record de novo for the existence of triable issues, and consider the evidence
submitted in connection with the motion, with the exception of evidence to which
objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24
1
Cal.4th 317, 334.)
C. Governing Principles
In view of the trial court’s ruling, the key issue is whether under O’Neil,
Hennessy can be liable for injuries arising from the application of the AMMCO
machine to asbestos-containing brake shoes.
1
Here, our review encompasses the evidence submitted by the parties, with the
exception of certain items of evidence submitted to the trial court by petitioners. In
connection with Hennessy’s motion, both sides raised numerous written evidentiary
objections to the showing proffered by their adversary. The trial court overruled
petitioners’ objections, and overruled in part and sustained in part Hennessy’s objections.
Because the parties do not challenge those rulings, we disregard the excluded evidence,
with the exception of two items of evidence discussed below.
In opposing the writ petition, Hennessy has effectively conceded that we may
consider two items of evidence to which Hennessy successfully objected. Generally,
material allegations in a petition not denied in the verified answer must be taken as true.
(Baumgardner v. City of Hawthorne (1951) 104 Cal.App.2d 512, 517.) Here, petitioners
allege that in 1973, AMMCO submitted two patent applications regarding a dust
collection system, stating that the AMMCO machine potentially created dust constituting
a “‘definite health hazard,’” and that a serious problem existed “‘because of the inherent
danger to the persons using this type of equipment.’” Although the trial court’s
evidentiary rulings excluded the two patent applications, Hennessy’s verified answer
expressly admits that the applications contain those statements. Our review of the grant
of summary judgment thus encompasses the statements.
6
1. Products Liability
A plaintiff may seek recovery in a “products liability” case either on a theory
of strict liability or on a theory of negligence. (Merrill v. Navegar, Inc. (2001) 26
Cal.4th 465, 478.) Under either theory, the plaintiff must prove that a defect in the
product caused injury. (Ibid.) In addition, to establish a negligence theory, a
plaintiff must prove that the defect in the product was due to the defendant’s
negligence. (Ibid.) Generally, recovery is permitted for three kinds of defects:
manufacturing defects, design defects, and warning defects, that is, inadequate
warnings or failures to warn. (Anderson v. Owens-Corning Fiberglas Corp. (1991)
53 Cal.3d 987, 995; Merrill v. Navegar, Inc., supra, 26 Cal.4th at p. 749; Powell v.
Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 363-364.)
Here, Hennessy sought summary adjudication or summary judgment on
petitioners’ products liability claims, which sound in strict liability and negligence,
and their related claims. The claims are founded on allegations that Hennessy
failed to give adequate warnings that the AMMCO machine released asbestos dust,
and that the machine’s release of asbestos dust despite the presence of a dust
collection system reflected a design defect.
Our focus is on strict liability, as O’Neil places special emphasis on that type
of products liability. The doctrine of strict products liability is traceable to
Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 59-60 (Greenman),
in which the plaintiff asserted claims against a power tool manufacturer based on
injuries he suffered as a result of using the tool. In imposing strict liability for the
injuries on the manufacturer, our Supreme Court held that “it was sufficient that
plaintiff proved that he was injured while using the [tool] in a way it was intended
to be used as a result of a defect in design and manufacture of which plaintiff was
not aware that made the [tool] unsafe for its intended use.” (Id. at p. 64.) “The
purpose of such liability,” the court explained, “is to insure that the costs of
7
injuries resulting from defective products are borne by the manufacturers that put
such products on the market[,] rather than by the injured persons who are
powerless to protect themselves.” (Id. at p. 63.)
In later decisions, the Supreme Court established that under the doctrine,
courts ordinarily must look beyond the product’s “‘normal’” or intended use to its
reasonably foreseeable uses. (Cronin v. J.B.E Olson Corp. (1972) 8 Cal.3d 121,
126 (Cronin); Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 366.)
“Generally, foreseeability is relevant in a strict liability analysis to determine
whether injury is likely from a potential use or misuse of a product.” (O’Neil,
supra, 53 Cal.4th at p. 362.) That determination is appropriate because “[t]he
design and manufacture of products should not be carried out in an industrial
vacuum[,] but with recognition of the realities of their everyday use.” (Cronin,
supra, 8 Cal.3d at p. 126; accord, Horn v. General Motors Corp., supra, 17 Cal.3d
at p. 366.)
2. O’Neil
In O’Neil, our Supreme Court examined the extent to which a manufacturer
may be liable for injuries arising from “adjacent” products, that is, products made
and sold by others, but used in conjunction with the manufacturer’s own product.
(O’Neil, supra, 53 Cal.4th at p. 342.) There, the family of a deceased U.S. Navy
seaman asserted claims for negligence and strict liability against manufacturers of
pumps and valves used on warships, alleging that the serviceman’s exposure to
asbestos dust from asbestos-containing materials used in connection with the
pumps and valves caused his fatal mesothelioma. (Id. at pp. 342-347.) The court
rejected the claims, concluding that “a product manufacturer may not be held liable
in strict liability or negligence for harm caused by another manufacturer’s product
unless the defendant’s own product contributed substantially to the harm, or the
8
defendant participated substantially in creating a harmful combined use of the
products.” (Id. at p. 342.)
In assessing the scope of a manufacturer’s liability for injuries arising from
“adjacent” products, the court’s attention centered on the strict liability doctrine.
(O’Neil, supra, 53 Cal.4th at pp. 342, 348.) The court observed that from the
outset, that doctrine had been premised on deficiencies in the defendant’s own
product, and that courts had generally rejected strict liability claims -- including
“design defects” and “duty to warn” claims -- predicated on injuries from “entirely
distinct” products neither made nor supplied by the defendant. (Id. at pp. 335-
353.) The court took special note of Taylor v. Elliot Turbomachinery Co., Inc.
(2009) 171 Cal.App.4th 564, 571-572 (Taylor), in which the widow of a U.S. Navy
seaman sued several valve and pump manufacturers, alleging that they were
responsible for her husband’s asbestos-related injuries. (O’Neil, supra, at pp. 351-
352.) In affirming summary judgment in favor of the defendants on the plaintiff’s
“duty to warn” strict liability claims, the appellate court in Taylor relied in part on
the so-called “component parts doctrine,” which shields the manufacturer of a
component part from liability for injuries arising from a finished product into
which the component has been integrated unless the component was defective
when it left the manufacturer, or the manufacturer substantially participated in the
integration of the component into the finished product. (Taylor, supra, 171
Cal.App.4th at pp. 570-571, 584-586.)
The O’Neil court distinguished three decisions in which liability had been
imposed on a manufacturer, one of which is pertinent here, namely, Tellez-
Cordova v. Campbell-Hausfeld/Scott Fetzger (2004) 129 Cal.App.4th 577, 579-
9
2
581 (Tellez-Cordova). There, the plaintiff asserted strict liability claims based on
defective warnings and design defects against manufacturers of grinding, sanding,
and cutting tools the plaintiff had used. The plaintiff’s complaint alleged that the
defendants’ tools released toxic dust from other manufacturers’ products, and that
the dust caused his injuries. (Ibid.) The defendants successfully demurred to the
complaint on the basis of the component parts doctrine. (Id. at p. 581.) In
reversing, the appellate court concluded that the component parts doctrine was
inapplicable: “The facts before us are not that respondents manufactured
component parts to be used in a variety of finished products, outside their control,
2
The other two decisions were Deleon v. Commercial Manufacturing & Supply Co.
(1983) 148 Cal.App.3d 336 (Deleon) and Wright v. Stang Manufacturing Co. (1997) 54
Cal.App.4th 1218, 1222 (Wright). In Deleon, the plaintiff, a worker in a fruit processing
plant, was injured when her arm was caught in a rotating power shaft located three feet
above a fruit bin she had been cleaning. (148 Cal.App.3d at pp. 340-341.) She sued the
bin’s manufacturer, which obtained summary judgment on her strict liability claims.
(Id. at pp. 340-342.) The appellate court reversed, concluding there were triable issues
regarding the application of the component parts doctrine, as there was evidence the
manufacturer had participated in the design of the production line that incorporated the
bin. (Id. at p. 345.) In distinguishing Deleon, the O’Neil court noted that there was no
evidence that the valve and pump manufacturers played such a role regarding the use of
their products on warships. (O’Neil, supra, 53 Cal.4th at p. 359.)
In Wright, the defendant manufactured a water cannon that had been mounted on a
fire engine. (Wright, supra, 54 Cal.App.4th at p. 1222.) When the plaintiff, a firefighter,
used the water cannon, it broke loose, threw him to the ground, and fell on him. (Ibid.)
The defendant obtained summary judgment on the plaintiff’s strict liability claim on the
theory that the cannon’s mount, rather than the cannon itself, was defective. (Id. at
pp. 1222-1223.) In reversing the grant of summary judgment, the appellate court
concluded that there were triable issues whether the cannon suffered from a design defect
because it was incompatible with a sufficiently strong mounting system; in addition, the
court determined that there were triable issues whether the defendant had failed to warn
about a potential mismatch between the cannon’s water pressure and the strength of its
mount. (Id. at p. 1236.) The O’Neil court concluded that Wright was distinguishable
because the firefighter’s injuries arose from a failure of the entire water cannon assembly,
rather than from the failure of a component part not made by the defendant. (O’Neil,
supra, 53 Cal.4th at pp. 359-360.)
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but instead that respondents manufactured tools which were specifically designed
to be used with the abrasive wheels or discs they were used with, for the intended
purpose of grinding and sanding metals, that the tools necessarily operated with
those wheels or discs, that the wheels and discs were harmless without the power
supplied by the tools, and that when the tools were used for the purpose intended
by respondents, harmful respirable metallic dust was released into the air.” (Id. at
p. 582.)
The O’Neil court concluded that Tellez-Cordova marked an exception to the
general rule barring imposition of strict liability on a manufacturer for harm caused
by another manufacturer’s product. (O’Neil, supra, 53 Cal.4th at p. 362.) That
exception is applicable when “the defendant’s own product contributed
substantially to the harm.” (Ibid.) In expounding the exception, the court rejected
the notion that imposition of strict liability on manufacturers is appropriate when it
is merely foreseeable that their products will be used in conjunction with products
made or sold by others. (Id. at pp. 361-362.) The O’Neil court further explained:
“Recognizing a duty to warn was appropriate in Tellez-Cordova because there the
defendant’s product was intended to be used with another product for the very
activity that created a hazardous situation. Where the intended use of a product
inevitably creates a hazardous situation, it is reasonable to expect the manufacturer
to give warnings. Conversely, where the hazard arises entirely from another
product, and the defendant’s product does not create or contribute to that hazard,
liability is not appropriate. We have not required manufacturers to warn about all
foreseeable harms that might occur in the vicinity of their products.” (Ibid.)
The O’Neil court further concluded the facts in Tellez-Cordova differed
from the situation before it in two key respects. (O’Neil, supra, 53 Cal.4th at
p. 361.) As the “sole purpose” of the power tools in Tellez-Cordova was to grind
metals, they could only be used in a potentially injury-producing manner, unlike
11
the defendant manufacturers’ pumps and valves, whose “normal operation . . . did
not inevitably cause the release of asbestos dust.” (Id. at p. 361) Moreover, unlike
the pumps and valves, “it was the action of the power tools . . . that caused the
release of harmful dust, even though the dust itself emanated from another
substance.” (Ibid., italics omitted.) In view of those differences, the pumps and
valves did not satisfy two requirements identified by the underlying appellate court
for the imposition of strict liability under Tellez-Cordova, namely, that the
manufacturer’s product “‘is necessarily used in conjunction with another
product,’” and that the “‘danger results from the use of the two products together.’”
(Id. at p. 361.) The O’Neil court determined that “[the] pumps and valves were not
‘necessarily’ used with asbestos components, and danger did not result from the
use of [the] products ‘together.’” (Ibid.)
After determining that the plaintiffs asserted no tenable strict liability claim,
the O’Neil court turned to their negligence claims. (O’Neil, supra, 53 Cal.4th at
p. 365.) The court declined to impose a duty of care, stating that “[t]he same
policy considerations that militate against imposing strict liability in this situation
apply with equal force in the context of negligence.” (Id. at p. 366.)
3. Relevant Post-O’Neil Decisions
Following O’Neil, two appellate courts have applied the Tellez-Cordova
exception was applicable to products liability claims resembling those presented
here. In Shields v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 782, 784
(Shields), the plaintiffs’ complaints asserted products liability claims predicated on
allegations that they suffered injury due to exposure to asbestos dust released by
the application of the AMMCO machine to asbestos-containing brake linings. The
appellate court reversed judgments on the pleadings in favor of Hennessy,
concluding that the plaintiffs’ allegations satisfied the Tellez-Cordova exception to
12
the rule confining strict liability to a manufacturer’s own products, as described in
O’Neil. (Shields, supra, 205 Cal.App.4th at pp. 797-798.) The court stated:
“Taken as true, the causes of action contend that Hennessy distributed a machine
directly to consumers designed only to grind asbestos-containing brake linings, a
machine that was defective because its intended operation necessarily released
asbestos fibers into the air and was not a machine manufactured for use as a
component in another finished product. . . . [T]he alleged sole and intended use of
the brake arcing machine resulted in the release of contained asbestos particles.”
(Id. at p. 798, fn. omitted.)
In Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103,
1106-1110 (Bettencourt), which also involved products liability claims based on
the AMMCO machine, the appellate court reached a similar conclusion. After
Hennessy obtained judgments on the pleadings without leave to amend, the
appellate court reversed, concluding that the plaintiffs’ proposed amendments
stated facts satisfying the Tellez-Cordova exception. (Id. at pp. 1110-1120.)
According to the proposed allegations, “the sole and intended purpose” of the
AMMCO machine “was to grind asbestos-containing brake linings. At the time in
question, all brakeshoe linings used on automobiles and trucks in the United States
contained asbestos, and it was not only foreseeable that [the] machines would be
used to grind such linings, this was their inevitable use. The asbestos fibers
bundles were physically bound in a matrix in the nonfriable linings, and only when
subjected to the action of [the] machines were the fibers released into the air where
they posed a danger to those exposed. Thus, when used as designed and intended,
[the] machines caused the release of the toxic agent that injured plaintiffs, although
that agent did not emanate from [the] machines.” (Id. at p. 1117.)
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C. Parties’ Showings
We next examine the parties’ showings, with special attention to the
evidence bearing on the Tellez-Cordova exception.
1. Hennessy’s Evidence
To establish that the Tellez-Cordova exception was inapplicable to
petitioners’ claims, Hennessy maintained that when David Greenberg allegedly
worked with and around an AMMCO machine, asbestos-free brake linings were
commercially available in the United States for use on automobiles and light
trucks, and were, in fact, used with the machines. Hennessy relied primarily on
declarations from automotive expert Russell Darnell, and Craig Mountz, a
Hennessy engineer.
According to Darnell, asbestos-free brake linings have been available in the
United States since 1936. In the 1930’s and 40’s, some domestic corporations
obtained patents for such linings, and certain German-made cars used asbestos-free
metallic linings. In the 1950’s, asbestos-free linings were sold for use with trucks
and the Chevrolet Corvette. In the 1960’s and 1970’s, asbestos-free metallic brake
linings were available for the increasingly popular “muscle” cars and some
passenger cars.
Mountz stated that AMMCO machines were designed to reshape a brake
lining by mechanical abrasion, regardless of whether the lining contained asbestos.
The machines themselves incorporated no asbestos-containing parts, and AAMCO
otherwise never manufactured, designed, or marketed the brake linings to which
the machine was applied. After AMMCO began making the machine, it
manufactured abrasives and other components intended “to better tailor” the
machine to certain metallic and high performance linings. In the 1960s, due to the
14
increasing presence of metallic and high performance linings, AMMCO created a
special abrasive belt for high volume use of the machine with such linings.
2. Petitioners’ Evidence
Petitioners contended their claims fell within the Tellez-Cordova exception,
offering evidence (1) that the AMMCO machine “necessarily” caused dust, and (2)
that during the pertinent period, due to the prevalence of asbestos-containing
linings, it would have been “impossible” for a garage worker using the machine
not to be exposed to asbestos dust. Their showing relied primarily on deposition
testimony from Mountz.
Regarding the machine’s creation of dust, Mountz stated that from the
1950’s to 1987, the main body of the machine remained the same. Because when
used as intended to grind brake linings the machines necessarily created dust, every
machine was equipped with a dust collection system. The system consisted of a
fabric bag until 1973, when AMMCO arranged for testing of the machine and
introduced what it advertised as an “asbestos dust collector.” Mountz
acknowledged that the pre-1973 and post-1973 systems did not collect all the dust,
and that workers using the machines were exposed to dust in “their breathing
zone[s].”
Regarding a worker’s likelihood of encountering asbestos dust, Mountz
testified as follows:
“Q. . . . . [Y]ou agree that the great majority of brakes that were in use into
the early 1980’s, and even mid[-]1980’s, contained asbestos, true? [¶] . . . [¶]
“[Mountz:] I’m not sure what year exactly, but yes. . .
“Q. Right. And . . . if you are a garage worker in the ‘50’s, ‘60’s, ‘70’s, and
into the mid 1980’s, AMMCO understands that more likely than not, if you[’re]
working with a brake lining, it’s got asbestos in it, true? [¶] . . . [¶]
15
“[Mountz:] Probably.
“Q. In fact . . . , it would be basically impossible for your average garage
worker in the ‘50’s, ‘60’s, ‘70’s, and into the ‘80’s, to be working with an
AMMCO grinder and never grind an asbestos brake. Do you agree with that?
“[Mountz:] Yes.
“Q. In fact, AMMCO understood asbestos to be so prevalent in brakes, as of
the 1970[’]s, it actually referred to its dust collection system as an ‘asbestos dust
collector,’ true?
“[Mountz:] I believe so.” (Italics added.)
D. Analysis
Our focus is on the Tellez-Cordova exception, even though that exception
directly attaches to the rule shielding a product manufacturer from strict liability
for injuries from “adjacent” products, as the grant of summary judgment relied
solely on a determination that the exception is inapplicable. We therefore limit our
inquiry to whether the AMMCO machine “contributed substantially to the harm”
(O’Neil, supra, 53 Cal.4th at p. 362). For the reasons discussed below, we
3
conclude that summary judgment was improperly granted.
The Tellez-Cordova exception, as expounded in O’Neil, requires a special
relationship between the manufacturer’s product and the alleged harm. O’Neil
provides no definition of that relationship, but identifies factors relevant to its
existence. (O’Neil, supra, 53 Cal.4th at pp. 361-362.) Although the O’Neil court
3
Although we may affirm the summary judgment on a ground not relied upon by
the trial court if the parties have had an adequate opportunity to address that ground
(Byars v. SCME Mortgage Banker, Inc. (2003) 109 Cal.App.4th 1134, 1147; Code Civ.
Proc., § 437c, subd. (m)(2)), Hennessy has identified no ground unrelated to the Tellez-
Cordova exception.
16
rejected the underlying appellate court’s imposition of strict liability on the
defendant manufacturers, the O’Neil court appears to have agreed that at least two
factors proposed by the underlying court are required for the relationship, namely,
that the manufacturer’s product “‘is necessarily used in conjunction with another
product,’” and that “‘danger results from the use of the two products together.’”
(O’Neil, supra, at p. 361.) However, the O’Neil court explained the requisite
relationship in more stringent terms, stating that a duty to warn was properly
imposed in Tellez-Cordova because “the defendant’s product was intended to be
used with another product for the very activity that created a hazardous situation.”
(Ibid.) Thus, such 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 pp. 361-362, italics added.)
Petitioners’ showing, if credited, establishes that the relationship between
the AMMCO machine and the related harm closely resembles the product-harm
relationship in Tellez-Cordova. For purposes of the strict liability doctrine,
evidence regarding a product manufacturer’s target market and “‘marketing
scheme’” is relevant to show the product’s intended and foreseeable uses. (Dosier
v. Wilcox Crittendon Co. (1975) 45 Cal.App.3d 74, 78-79.) According to
petitioner’s evidence, AMMCO designed the machine to grind drum brake linings
for passenger cars and light trucks, the “great majority” of which contained
asbestos. Indeed, Mountz acknowledged that they so frequently contained asbestos
during the pertinent period that it was “basically impossible” for the average
garage employee to avoid working with them. Although the machine could be
used with all available drum brake linings for passenger cars and light trucks,
AMMCO gave special attention to machine users who applied it to asbestos-
containing linings, as AMMCO began to market an “‘asbestos dust collector’” for
the machine in 1973. That attention was unsurprising, as asbestos-containing drum
17
4
brake linings were “so prevalent.” According to petitioners’ evidence, because the
machine necessarily created dust in its intended use, its application to the linings
then available inevitably exposed the average garage employee to asbestos dust.
In our view, the product-harm relationship involving the AMMCO machine
satisfies the factors identified in O’Neil for application of the Tellez-Cordova
exception. Petitioners’ evidence shows that the AMMCO machine was necessarily
used with a certain type of lining, and that asbestos dust resulted from that joint
use. Furthermore, the 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
5
prevalence of asbestos-containing linings. (Italics omitted.)
4
AMMCO’s 1973 patent applications evidence its level of concern, as they state
that uncollected dust from the machine created a “‘definite health hazard,’” and that a
serious problem existed “‘because of the inherent danger to the persons using this type of
equipment’” (see fn. 1, ante).
5
The AMMCO machine is thus distinguishable from matches and saws, which
O’Neil states are outside the scope of the Tellez-Cordova exception. In explaining why
the exception is inapplicable when it is merely foreseeable that a product will be used in
conjunction with another hazardous product, the O’Neil court stated that such a view
“would require match manufacturers to warn about the dangers of igniting
dynamite . . . . [¶] . . . California law does not impose a duty to warn about dangers
arising entirely from another manufacturer’s product, even if it is foreseeable that the
products would be used together. Were it otherwise, manufacturers of the saws used to
cut [asbestos-containing] insulation would become the and valves in O’Neil, which did
not cause the release of asbestos fibers, here, it was the grinding action of AMMCO’s
machine that generated the release of harmful asbestos next targets of asbestos lawsuits.”
(O’Neil, supra, 53 Cal.4th at p. 361.) Unlike matches and saws, which are used with a
wide array of different products, the AMMCO 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
AMMCO’s machine that generated the release of harmful asbestos dust.
18
Hennessy contends that the Tellez-Cordova exception is inapplicable
because the machine was designed to abrade all available drum brake linings for
passenger cars and light trucks, regardless of the composition of the linings.
Pointing to Tellez-Cordova, as well as O’Neil, Shields, and Bettencourt, Hennessy
argues that a product falls outside the exception unless it can be used only in an
injury-producing manner. We disagree.
Because those decisions do not expressly impose Hennessy’s proposed
condition, to determine the scope of the Tellez-Cordova exception, we may
properly examine the policies underlying the rule shielding a product manufacturer
6
from strict liability for injuries due to an “adjacent” product. (O’Neil, supra, 53
Cal.4th at p. 342.) As explained in O’Neil, strict liability for such injuries is
ordinarily imposed only on the manufacturer of the “adjacent” product, as product
manufacturers generally lack continuing business relationships, and thus cannot
exert pressure on one another to make safe products. (Id. at p. 363) Moreover, it is
unfair to impose strict liability on manufacturers that derive no economic benefit
from the sale of the injurious product. (Ibid.)
6
None of the cited decisions required satisfaction of the proposed condition. In
Tellez-Cordova, which addressed the legal adequacy of products liability claims in the
context of a demurrer, the appellate court found that the complaint’s allegation that the
pertinent tools “had no function without the abrasives which disintegrated into toxic dust”
sufficed to state strict liability claims. (Tellez-Cordova, supra, 129 Cal.App.4th at
p. 585.) In O’Neil, the court distinguished Tellez-Cordova from the factual situation
presented to it by reference to that allegation, but did not expressly confine the Tellez-
Cordova exception to products possessing a sole or unique harm-producing purpose or
function. (O’Neil, supra, 53 Cal.4th at pp. 361-362.) Shields and Bettencourt, which
also addressed the legal adequacy of products liability claims in the context of a
demurrer, concluded only that such an allegation sufficed for the imposition of liability.
(Shields, supra, 205 Cal.App.4th at p. 798; Bettencourt, supra, 205 Cal.App.4th at
p. 1107.)
19
Although O’Neil does not discuss the policy rationale underlying the Tellez-
Cordova exception, the key consideration relevant to it appears to be derived
economic benefit, as nothing in Tellez-Cordova suggests that the tool manufacturer
there had continuing business relationships with the manufacturers of the other
relevant products. Because the manufacturer’s tool was useable only with certain
other products, it indirectly derived economic benefit from their sale. Accordingly,
as 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.
Here, AMMCO derived a similar economic benefit from the sale of
asbestos-containing drum brake linings as the tool manufacturer in Tellez-Cordova
reaped from the sale of the products on which its grinders, sanders and saws
operated. Because asbestos-containing drum brake linings were “so prevalent”
during the pertinent period, Sherman’s use of the machine “for the very activity
that created a hazardous situation” was not merely possible, but inevitable. We
find the relevant question not whether asbestos-containing brake linings were
“necessary to the operation of AMMCO’s machine,” but whether someone using
the grinder as intended during the period in question would invariably have been
subjected to asbestos dust. On this record, the answer is “yes.”
Hennessy’s reliance on this court’s decision in Sanchez v. Hitachi Koki, Co.,
Ltd. (2013) 217 Cal.App.4th 948 is misplaced. There, a worker, disregarding
express warnings to the contrary, inserted a saw blade into a power grinder, and
suffered injury from the saw blade while using the grinder. (Sanchez v. Hitachi
Koki, Co., Ltd., supra, 217 Cal.App.4th at pp. 950-951.) He asserted products
liability claims against the grinder’s manufacturer, which sought summary
judgment under O’Neil on the ground that it neither made nor sold the blade, and
that the grinder was never intended to be used with a saw blade. (Id. at p. 952.) In
20
affirming the grant of summary judgment, this court concluded that O’Neil barred
imposition of liability on the manufacturer for the worker’s conceded misuse of its
product. (Id. at pp. 954-959.) Distinguishing Tellez-Cordova, we noted that
“[Plaintiffs’] own expert opined that the grinder was not intended to be used with a
saw blade, and the manual expressly warned that use of a saw blade was
‘dangerous and may cause personal injury or property damage.’” (Id. at p. 957.)
In contrast, as explained above, petitioners’ claims are predicated on the intended
7
use of the AMMCO machine, and thus fall within the Tellez-Cordova exception.
7
The other decisions upon which Hennessy relies also are distinguishable. Most
exemplify the component parts doctrine, which is inapplicable here because the AMMCO
machine cannot reasonably be regarded as a component of a finished product over which
AMMCO lacked control. (Garman v. Magic Chef, Inc. (1981) 117 Cal.App.3d 634, 637-
638 [propane stove manufacturer had no duty to warn regarding hazards associated with
pipe connecting stove to propane tank when it did not supply or install pipe]; Powell v.
Standard Brands Paint Co., supra, 166 Cal.App.3d at pp. 360-367 [manufacturer of paint
thinner used in construction project was not liable for injuries arising from use of similar
thinner made by another manufacturer]; Garcia v. Joseph Vince Co. (1978) 84
Cal.App.3d 868, 872-880 [manufacturer of fencing mask was not liable for injuries
arising from use of defective fencing sabre made by another manufacturer]; Blackwell v.
Phelps Dodge Corp. (1984) 157 Cal.App.3d 372, 377-378 [acid manufacturer had no
duty to warn about dangers of pressure formation from acid when manufacturer lacked
control over shipping arrangements, and placed the acid as ordered in defective tank cars
provided by other parties]; Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d
621, 627-629 [supplier of tires lacking valves was not liable for injuries arising from
defective valve, as intermediate manufacturer attached valve to tire before providing it to
injured party]; McGoldrick v. Porter-Cable Tools (1973) 34 Cal.App.3d 885, 888-891
[manufacturer of saw stand was not liable for injuries arising from defective saw made by
another manufacturer]; Zambrana v. Standard Oil Co. (1972) 26 Cal.App.3d 209, 216
[tire manufacturer was not liable for injuries due to tire valve extension made by another
manufacturer].)
All but one of the remaining cases stand for the general proposition that absent
special circumstances, a defendant that neither makes nor distributes a defective product
is not liable for injuries arising from that product. (Peterson v. Superior Court (1995) 10
Cal.4th 1185, 1188 [hotel was not liable for injuries arising from defective bathtub in
hotel room]; Ontiveros v. 24 Hour Fitness USA, Inc. (2008) 169 Cal.App.4th 424, 426-
(Fn. continued on next page.)
21
Hennessy also contends that petitioners cannot establish another fact crucial
to the Tellez-Cordova exception, namely, that the relevant brake linings were safe
absent the use of the AMMCO machine. The crux of Hennessy’s argument is that
the allegations in petitioners’ complaint, coupled with their discovery responses,
8
foreclose their ability to demonstrate that fact. As explained below, we disagree.
Our focus is on whether petitioners can show that the pertinent brake linings
did not release unsafe amounts of asbestos fibers in their ordinary baseline state,
435 [fitness club was not liable for injuries arising from defective exercise machine];
Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 523-524 [former supplier of
asbestos insulation to Navy was not strictly liable for seaman’s injuries from exposure to
asbestos insulation, absent evidence that former supplier had role in the design and
marketing of asbestos insulation to which seaman was actually exposed].) As explained
above, petitioners’ showing, if credited, is sufficient to establish the Tellez-Cordova
exception to that general proposition.
The remaining decision stands for the proposition that a product manufacturer is
not liable for injuries due to modifications of the product by a sophisticated purchaser
aware of the potential dangers arising from the modifications. (Fierro v. International
Harvester Co. (1982) 127 Cal.App.3d 862, 865-869 [manufacturer of skeletal truck
chassis had no duty to warn packing company that modifying the chassis’s battery system
could create a fire hazard].) Nothing before us suggests that petitioners constitute such
sophisticated purchasers.
8
In seeking summary judgment, “a defendant may rely on the complaint’s factual
allegations, which constitute judicial admissions. [Citations.] Such admissions are
conclusive concessions of the truth of a matter and effectively remove it from the issues.”
(Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 222, fn. 3.) However, an allegation
that is not dispositive regarding a matter does not preclude the plaintiff from offering
additional evidence. (Electronic Equipment Express, Inc. v. Donald H. Seiler & Co.
(1981) 122 Cal.App.3d 834, 850.) Similarly, a party seeking summary judgment may
rely on the opponent’s discovery responses, but summary judgment “‘should not be based
on tacit admissions or fragmentary and equivocal concessions, which are contradicted by
other credible evidence.’ [Citations.] To protect the interests of the party opposing
summary judgment, its ‘admissions[, if any,] should be . . . careful[ly] examin[ed] in light
of the entire record.’ [Citations].” (Consumer Cause, Inc. v. SmileCare (2001) 91
Cal.App.4th 454, 473.)
22
9
absent the operation of the AMMCO machine. As Hennessy notes, in Tellez-
Cordova, Shields, and Bettencourt, the allegations identified as sufficient to state a
products liability claim included an allegation that the products to which the
pertinent tool or machine was applied released no hazardous dust when the tool or
machine was not operating. (Tellez-Cordova, supra, 129 Cal.App.4th at p. 585;
Shields, supra, 205 Cal.App.4th at p. 797; Bettencourt, supra, 205 Cal.App.4th at
p. 1117.) Hennessy argues that petitioners cannot establish that fact, in view of
their complaint and discovery responses. Petitioners’ complaint alleges that the
“sawing, chipping, hammering, scraping, sanding, breaking, removal, ‘rip-out’,
and other manipulation” of asbestos-containing products “result[s] in the release of
airborne asbestos fibers . . . .” Furthermore, in response to an interrogatory seeking
“[a] complete description of [the] work” that exposed Greenberg to asbestos,
9
We observe that Hennessy’s contention -- as Hennessy itself has acknowledged --
is directed at the propriety of the imposition of strict liability, not petitioners’ ability to
prove causation of their injuries. Generally, to establish a strict products liability claim,
the plaintiff must prove that “there was a defect in the manufacture or design of the
product and that such defect was a proximate cause of the injuries.” (Cronin, supra, 8
Cal.3d at p. 133, italics added.) Although the evidence regarding those elements may
overlap, they are distinct requirements. (See Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 572-573; Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849,
862-864.) Beyond showing an “abstract ‘defect’” in the product, the plaintiff must
demonstrate that the defect was appropriately causally related to the alleged injuries.
(Soule, supra, 8 Cal.4th at pp. 572-573.) Specifically, in an action based on injuries
attributed to asbestos from potentially more than one source, to establish proximate
causation regarding a manufacturer’s product, the plaintiff must show a threshold
exposure to asbestos from the product, and a reasonable medical probability that a
particular exposure or series of exposures was a substantial factor in bringing about the
risk of the alleged injuries. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953,
982.) As Hennessy’s contention concerns the Tellez-Cordova exception, it targets
petitioners’ ability to demonstrate an essential predicate for an “abstract” defect in the
AMMCO machine itself, specifically, that it was capable of generating exposures to
asbestos fibers satisfying the requirement for proximate causation.
23
petitioners replied: “Sanding, grinding, abrading, use of compressed air, brake and
clutch inspections, cleaning up, including sweeping, cleaning off clothes, cleaning
10
out hair, opening boxes, cleaning off tools and equipment.”
Although those allegations and responses show that various activities on the
linings could release asbestos fibers, they do not establish the extent to which the
linings in their baseline state emitted fibers, absent such activities. Furthermore,
the record discloses evidence that the AMMCO machine’s operation itself was
responsible for the emission of hazardous levels of asbestos fibers. According to
petitioners’ showing, Mountz testified as follows:
“Q. . . .[¶] AMMCO agrees that the hazard when working with brake linings
isn’t from just being next to one or holding one, the hazard, as it pertains
specifically to AMMCO, is grinding that brake lining, true? [¶] . . . [¶]
“[Mountz:] It’s when the dust becomes airborne, yes.” (Italics added.) That
testimony is sufficient to raise triable issues whether the linings were safe in the
10
To the extent Hennessy contends that under the Tellez-Cordova exception, appellants
must establish that the brake linings released asbestos fibers only when abraded by the
AMMCO machine, we disagree. In Tellez-Cordova, the products liability claims
involved multiple metal working machines that performed different operations on metal
parts, including grinding, sanding, and cutting. (Tellez-Cordova, supra, 129 Cal.App.4th
at p. 579.) The appellate court held that liability was properly imposed on the machines’
manufacturers for injuries due to each type of machine, although they created toxic dust
through distinct operations. Thus, the Tellez-Cordova exception is applicable to a
machine that releases asbestos fibers from brake linings, even though other operations on
the brake linings also released asbestos fibers, provided that the linings were safe in their
baseline state.
24
absence of grinding activity upon them. We therefore conclude that summary
11
judgment was improperly granted.
11
In a related contention, Hennessy maintains that petitioners cannot establish
“defective design” claims based on purported defects in the “asbestos dust collector”
introduced in 1973. Hennessy argues that any such claim fails for two reasons, namely,
that the AMMCO machine Greenberg owned was equipped with the pre-1973 dust
collection system, and that liability cannot be imposed on Hennessy with respect to any
dust collection system because petitioners’ injuries are attributable solely to asbestos-
containing products AMMCO neither made nor distributed. We reject Hennessy’s
contention.
The record discloses that petitioners assert no claim specifically predicated on a
design defect in the 1973 “asbestos dust collector.” Petitioners state in their reply brief
that they allege only that the pre-1973 dust collection system reflected a defect in the
AMMCO machine used by Greenberg. For the reasons discussed above, petitioners’
showing is sufficient to demonstrate that the Tellez-Cordova exception encompasses such
a claim, that is, that the AMMCO machine used by Greenberg “contributed substantially
to the harm” (O’Neil, supra, 53 Cal.4th at p. 362). Macias v. Mine Safety Appliances Co.
(2010) 158 Wn.App. 931 [244 P.3d 978], reversed by Macias v. Saberhagen Holdings,
Inc. (2012) 175 Wn.2d 402 [282 P.3d 1069], to which Hennessy directs our attention, is
distinguishable, to the extent that decision stands for the proposition that a manufacturer
of a safety device intended to mitigate a hazard created solely by another manufacturer’s
product is not liable for injuries due to the hazard. (See Macias, supra, at pp. 942-949
[244 P.3d at pp. 985-986] [respirator manufacturer of respirators not liable for worker’s
mesothelioma caused by exposure to asbestos-containing products made by others].)
25
DISPOSITION
Let a peremptory writ of mandate issue directing that respondent trial court
vacate its order granting Hennessy’s motion for summary judgment, and enter a
new order denying summary judgment and summary adjudication. The alternative
writ, having served its purpose, is discharged. Petitioners are awarded their costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
26