WEBB v. SPECIAL ELECTRIC COMPANYAppellants’ Answer to Petition for ReviewCal.May 14, 2013SUPREME COURT S209927 FILE B233189 MAY 14 2013 Frank A. McGuire Clerk Deputy In THE SUPREME Court OF CALIFORNIA WILLIAM B. WEBB and JACQUELINE V. WEBB, Plaintiffs, Appellants, and Respondents, V. SPECIAL ELECTRIC COMPANY, INC., Defendant, Respondent, and Petitioner. AFTER DECISION BY THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION ONE, NO. B233189; ON APPEAL FROM THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, HONORABLEJOHN SHEPARD WILEY, JUDGE, NO. BC436063 ANSWERTO PETITION FOR REVIEW DEAN A. HANLEY(SBN 169507) TED W. PELLETIER (SBN 172938) ANTHONYE. VIEIRA (SBN 175767) LAW OFFICE OF TED W. PELLETIER PAUL & HANLEY LLP 22 Skyline Road 1608 Fourth Street, Suite 300 San Anselmo, California 94960 Berkeley, CA 94710 Tel: (415) 454-8783 Tel: (510) 559-9980 Fax: (415) 454-1592 Fax: (510) 559-9970 tedpelletierlaw@comcast.net dean@deanhanley.net TABLE OF CONTENTS INTRODUCTION 00... ceecccseeesesseeceseseesseaseecsnsesscseseseecsessassecseesceseeeaseatsnesseaneeeaeeesseeseseees 1 DISCUSSION 0... cecceccecssssssssseccssccseesecseseeseescsesscassaesceesseesceseeaesaeeeeeseenscseessuesseesseasneseeeneeues 3 I. Review of the Opinion is not warranted..............cccccsscssessessseseeseececeseeseeeseeeessesesaneeaees 3 A. No Rule 8.500 grounds for review, .0........cccccesssessesssssecesseseeeeseeecsnesseesaeeseeeseeeseeeeseeseees 4 1. The procedural error: Thetrial court tried to rule on pre-verdict motionsafter the verdict—an errorso rare that no other published Gecision AACTeSSES it... ceessseeceecseeeessececeateeecesensesseesseeceneeseeeaeseesseesesseenseseees 5 2. The substantive error: Thetrial court does nothing novel, upholding a jury’s verdict under governing law based on substantial evidence that Special Electric failed to warn users of its dangerous product.............cc0ccee 8 B. The Opinionrests on independent groundsnot challenged by the Petition.............. 10 C. The Petition rests on numerous misstatements and asserted issues that Cannot be raised here...ees eessesessensscesseeeseeeneeseseseeeecesceeeesseecseeeseeseseeeeeaeeneeeeenetees 12 CONCLUSION0.0.ceeceecsceecssesessesesscessessescessssesseseessesssaceasecsessecsueseeeseeseeseeeeeeuesaeasessaeseeees 18 CERTIFICATION OF WORD COUNT.000..ccccsccsssssssesseeceeenessteeseneeesesseenssasensenseeeeesenaes 18 TABLE OF AUTHORITIES Cases Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310...ecccssssssseeesessessssssessesessssesesscssestesseseeseeeseceseseeeeeseenes 7,15 Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4" 764 ooececccesccsssscssessesssucsssssscsssecssucsssesssessssuessutesuesaerscsseseraeseeesseteneeens 14 Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4" 939 oo..cceecccsssssscsseesseesssssssecsssseessssessssesssusssessseesssstesseverseeesseen ll Johnson v. American Standard (2008) 43 Cal.4° 56 .oececcssscssesscssessusscsesssecssessuesssesesercesavecsuecsesessessessseessetessesscesesevenusensess 9 Sanchez-Corea v. Bank ofAmerica (1985) 38 Cal.3d 892 oooeesccssessececceneessenenessessessssesessesesseseeaecaseceeseseeseseeseseesseseenaes 17 Savnik v. Hall (1999) 74 Cal.App.4™ 733 o.ccceccscsssssssessssssssessusessusscuccesseccsevesevessecsecsuusssuscssuserecerseeenecens 17 Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4? 23 ...ceeccescscccsssssssesssesssecssecssecssevecssecsssecsavcsscsavecsucesscessresseserecs 9, 13 Rules of Court Rulle8.500...ccceccceccesscesssccucssesessacesssccsesscscesessecssaccsaccessceectacesecsaceesescecnceessaceeetacecees 1,4 Other Authorities Restatement (Second) of Torts, section 402A .......cccccccesssssceescesesseeecesseeseseeecseeaeeseseensenes 9 li INTRODUCTION The petition for review (“Petition”) filed by Special Electric Company,Inc. (“Special Electric”) should be denied. The Petition fails to show any Rule 8.500 groundsfor this Court’s review. The only mention of those groundsis in the “Conclusion,” when Special Electric simply states that its arguments show a needto “secure uniformity of decision” and “settle an important question of law.” Petition at 29. But the previous 28 pages contain no effort to show either ground,let alone any pertinent analysis. Nothing in the Petition even hints at a lack of uniformity of decision among the appellate districts. Instead, Special Electric appears to invoke the “important question” ground,asserting at the outset that this case “presents major issues of compelling interest to litigants across California.” Petition at 2. But the Petition, the Opinion, and the record bely this assertion. Far from having anyinterest to, or impact on,other “litigants across California,” this case arises from extremely specific circumstances that are uniqueto this case. The Opinion’s primary groundfor reversalis a trial-court procedural error (attempting to rule on pre-verdict motionsafter the verdict) that is so uncommonthere is not one other published decision addressing it. See Opinion at 11-15. Likewise, the Opinion’s second ground (substantive error) arises from this case’s unique factual circumstances. See Opinion at 15-29. Accordingly, there is little likelihood that these issues will ever recur, let alone often enough to pose an issue of statewide importance for this Court to “settle.” This case is a poor candidate for review also because the Opinion’s disposition—teversalofthetrial court’s JNOV (on “failure to warn”claims) and reinstatement of the underlying jury verdict—rests on three independent rulings, each wholly supporting the reversal. Specifically, the Opinion holds that the JNOV wasnotonly (1) procedurally defective and (2) substantively erroneousbut also (3) unduly broad—evenifthe trial court had properly negated the “failure to warn” verdicts, the judgment for Webbstill rested properly on a discrete verdict for general negligence independentoffailure to warn (Opinion at 29-32). To affect the Opinion’s disposition, this Court would need to reverseall three ofthese holdings. We are confident that the first two holdings are correct and would not be reversed. But the third holding virtually cannot be reversed because it rests on Special Electric’s waiver of the issue on appeal (Opinion at 32)—a waiverruling that the Petition does not challenge. See Petition at 22-23. Finally, review should be denied because the Petition rests on an asserted version ofthis case that is simply not supported by the record or the Opinion below. The petition postures Special Electric as some sort of innocent manufacturer who cared aboutthe users of its dangerous product and did all it could to warn them, reasonably believing that industry “behemoth” Johns-Manville (Petition at 15) would warn downstream product users of the dangers. According to this tale, Johns-Manville’s failure to warn consumers wasa shockto Special Electric, a “highly extraordinary”failure that Special Electric had no “reason to believe” would occur. Petition at 17. Butthis tale is false, belied again by the record and the Opinion. The evidence showed that Special Electric not only made noeffort to warn its product’s users but took active steps to “conceal” the dangers, as the Opinion summarizesin detail: The jury [was] justified in concluding that, far from reasonably relying on Johns-Manville to warn potential users ofit[s] asbestos, Special Electric wasitself engaged in an effort to conceal the dangers of it[s] asbestos—dangers of which both it and Johns-Manville were, or should have been, well aware. .. . Underthe evidence beforeit, the jury was entitled to conclude that Special Electric . . . had no intention of making any effort to warn potential users or obtaining Johns-Manville’s aid in doing so, and that, indeed, Special Electric and Johns-Manville together engaged in efforts to prevent asbestos users from becoming informedofits dangers, Opinion at 26 (emphasis added). That is what this case is about. Special Electric exposed innumerable people to thousandsoftons of its dangerous product (Opinion at 3) without caring about the hazards or even attempting to adequately warn its consumers—indeedtrying to conceal those hazards. Now faced with liability for its actions, Special Electric is trying to hide behind Johns- Manville and detach itself from its callous misconduct. The appellate court below properly rejected this effort. Review is not warranted and should be denied. DISCUSSION I. Review of the Opinion is not warranted. Review ofthe Opinion below is not warranted because (1) the Petition fails to show any groundsfor this Court’s review, (2) the Opinion’s reversal of the JNOVand reinstatement ofthe jury’s underlying verdict rests independently on a general-negligence verdict as to which Special Electric has waived any challenge, and (3) the Petition rests on false narrative thatis belied by the record and the Opinion,raising various other challenges that are inaccurate, unavailable, and unpersuasive. A. No Rule 8.500 groundsfor review. First and foremost, the Petition fails to raise any grounds for review under Rule 8.500. Indeed, the Petition does not even invoke or reference those mandatory groundsuntil the “Conclusion,” when Special Electric baldly asserts that the “issues” raised in the Petition “more than satisfy the requirements of Rule 8.500(b)(1)”: “‘to secure uniformity of decision,’ and ‘to settle an important question of law.’” Petition at 29. But aside from this claim, the Petition lacks any analysis or showing that either asserted ground for review exists. Indeed, the Petition does not remotely assert a lack of “uniformity of decision,”i.e., that the Opinion’s resolution of someissue conflicts with a ruling from another appellate district. Instead, the only ground for review that is even remotely invoked in the Petition appears to be the “important question of law” ground. Although the Petition neverstates it expressly, it does open its discussion by asserting the existence of “major issues of compelling interest to litigants across California.” Petition at 2. Unfortunately, the balance of the Petition does nothing to support this claim. To the contrary, the Petition, in concert with the Opinion and the record, showsthat the Opinion rests on specific circumstancesthat are unique to this case and thus unlikely to recur, let alone recur so frequently that they raise an “important question” for this Court to “settle.” Specifically, although Special Electric initially paints a laundry list of “Issues Presented”(Petition at 1), it limits its assertion of “compelling” issues to two: 1. The procedural error: “How and whena trial court may rule on timely submitted motions for nonsuit, directed verdict, and JNOV.” 2. The substantive error: “Whether a broker to a sophisticated manufactureris subject to a duty to warn that manufacturer of hazards the manufacturer already knows.” Petition at 2. Butneither of these issues raises an issue of statewide importance. 1. The proceduralerror: The trial court tried to rule on pre- verdict motions after the verdict—anerror so rare that no other published decision addressesit. The Opinion’s first independent ground for reversing thetrial court and reinstating the jury’s verdictis that the order vacating the verdict was procedurally erroneous. Opinion at 11-15. This holding arises from a fact pattern so uniquethat it has never before been addressed in a published decision—and will likely never recur: 1. Before the verdict, Special Electric timely moved for nonsuit and a directed verdict. Opinion at 3, 5. These motionsraised entirely different grounds. The nonsuit motion challenged only “the failure to warn cause of action,” asserting that (1) Special Electric had given warnings, and (2) Special Electric was “absolve[d]” of its “duty to warn” because Johns- Manville was a “sophisticated user.” Jd. at 3. The directed-verdict motion challenged only “strict liability,” asserting that Special Electric was only a “broker” that was “outside the chain of distribution.” Jd. at 5. 2. Thetrial court did not rule immediately and allowedbriefing. Opinionat 4, 5; 11 RT 3004:1-3. Webbfiled his opposition to the February 2 nonsuit on February 9, over a week before the February 17 verdict. 1 AA 78-85, 143-150. 3. Special Electric failed to press for or obtain a ruling onits pre- verdict motions, allowing the jury to deliberate and return a verdict on February 17. Opinion at 4, 5; 1 AA 143-150. 4. After the verdict, the trial court announcedits intention to deny the pre-verdict motions and suggested that Special Electric bring a proper, post-verdict JNOV motion. Opinionat 6. 5. Special Electric declined to file a JNOV (or other post-verdict) motion and insisted that the court rule instead on its pre-verdict motions. Jd. 6. Thetrial court acquiesced, allowing subsequentbriefing and scheduling a hearing on the pre-verdict motions. Jd. 7. In post-verdict briefing, Special Electric repeatedly shifted and changedits asserted grounds and supporting arguments. Opinionat 6-7. Special Electric pressed only the “failure to warn” based groundsfrom its nonsuit, abandoningits “only a broker” argument that had beenthe sole ground for a directed verdict. Id. Special Electric now argued that both nonsuit and directed verdict involved the challenge to “failure to warn” liability. Id. Moreoverthis failure-to-warn challenge evolved—Special Electric no longer asserted “sophisticated user,” now arguing for the first time that Johns-Manville was a “sophisticated intermediary,” that Special Electric reasonably “relied” on Johns-Manville to warn the users, and that the warnings that Special Electric supposedly gave were “adequate as a matter of law.” Opinionat 7. 8. Thetrial court granted Special Electric’s motion,via either of twoalternative procedures: (1) the court granted the pre-verdict nonsuit and directed-verdict motions; or (2) the court treated the pre-verdict motions as a JNOV motion and granted that. Opinion at 8-9. As a predicate to this ruling, the court “entered” judgment “as to the jury verdict,” then vacated that judgmentbyits post-verdict order. Opinionat 9. 9. Becausethetrial court had entered judgment on the verdict, negating the pre-verdict motions and leaving JNOV asthe only available challenge, the appellate court considered the propriety of granting JNOV and ruled it procedurally improper. Opinion at 12-15. The JNOV could not be granted becauseit violated numerousstatutory mandates: no JNOV motion was everbrought, no statutory notice was given, and the JNOV wasgranted at an impropertime. Id. It is upon this elaborate fact pattern that the Opinion’s procedural ruling rests. Needless to say, the chancesofthis recurring are slim and none. Nevertheless, Special Electric asserts the following issue as (suppo- sedly) affecting other Californialitigants: “maya trial court rule after a verdict upon otherwise valid pre-verdict motions for nonsuit and directed verdict?” Petition at 1. Butthis general framing of the issue makesits recurrence no more likely. Indeed, through numerous roundsofbriefing, neither the courts nor either party have identified even one case where a court attemptedto rule on pre-verdict motions for nonsuit and a directed verdict after the verdict. And the reason for this is simple: it never happens. Instead, the correct (and common) procedureis that, if the trial court is unable to rule on the pre- verdict motions (e.g., due to time constraints), the proper procedureis to “deny the motion[s] in favor of” and in “reliance upon”the “powerto grant [JNOV]after the jury’s deliberations.” Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 328. This procedure allows the “court to delay, in effect, ruling upon”the pre-verdict motion in favor of a later JNOV. Jd. at 328 n.6. That is the normal course—if the party cannotgetits pre-verdict motion(s) ruled on,it brings a post-verdict JNOV. And that is what Special Electric should have done here and indeed was encouragedto dobythetrial court, but refused. Opinionat6. The Opinion below does nothing more than identify Special Electric’s mistake andtell litigants to follow the proper procedure that everyonebut Special Electric already follows: challenge a verdict by moving for JNOV, newtrial, or any otherstatutorily authorized post-verdict motion. The Opinion’s procedural holding is limited to this case and thus does not raise a statewide question of law for this Court to settle. 2. The substantive error: The trial court does nothing novel, upholding a jury’s verdict under governing law based on substantial evidence that Special Electric failed to warn users of its dangerous product. Like the procedural holding, the trial court’s substantive holding does not raise any issue of statewide importancefor this Court to settle. Special Electric, trying to concoct such an important question, posits the following issue: Whethera broker to a sophisticated manufacturer [Johns-Manville] is subject to a duty to warn that manufacturer of hazards the manufacturer already knows. Petition at 2; accordid. at | (“Is it a tort not to warn a manufacturer of hazards the manufacturer already knows?”). But this supposed “issue” is not presented by the Opinionorthis case. Webbdid notassert, the jury did not find, and the Opinion doesnothold, that Special Electric owed a duty to warn Johns-Manville. Instead, the Opinion upholds Special Electric’s well-established duty to warn users ofits asbestos of that product’s dangers, a duty that the jury properly found was not fulfilled. Opinion at 15-16; see 1 AA 121 (instructions), 146 (verdict). The issue of Johns-Manville’s knowledge arose only when Special Electric asserted that its duty to warn users like Webb was “discharged” because Johns-Manville was a sophisticated “intermediary” whodid not need to be “warned.” Opinionat 7. The Opinion properly rejects this argument, based on settled law and the evidence andinstructions in this case. Opinion at 16-29. The Opinion rests on and follows this Court’s decision in Johnson v. American Standard (2008) 43 Cal.4" 56, the appellate court in Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4" 23, and section 402A of the Restatement (Second) of Torts. E.g., Opinion at 20. The Opinionraises no new interpretation of the law. Any factual difference in this case from Johnson or Stewart arises (again) from this case’s unique factual circumstances. As the Opinion finds, substantial evidence establishes that: (1) Special Electric knew that its product was hazardous and would giveriseto liability but intentionally marketedits product as safer than other asbestos; (2) Special Electric sold mostofits product to Johns-Manville, without warnings; (3) Johns-Manville put the asbestos into products andsold it to downstream consumers, without warnings; and (4) “Special Electric and Johns-Manville together engaged in efforts to prevent asbestos users from becoming informedofits dangers.” Opinion at 25-26. In light of these unique facts, the jury, applying the well- settled law (underthe instructions), reasonably rejected Special Electric’s argumentthat its duty to warn should be discharged. As with the procedural issues, these unique circumstancesare simply not likely to recur—thusraising no ground for this Court’s review. B. The Opinionrests on independent groundsnot challenged by the Petition. Review is not warranted also because the Opinion’s reversal rests on an independentholdingthatthe Petition fails to challenge: even a proper JNOV of Webb’s“failure to warn” claim would not have properly upset the judgment onthe jury’s verdict becausethat verdict rested independently on Webb’s general-negligence claim. Opinion at 29-32. As the Opinion shows, the jury was asked to makefindings on several discrete claims, includingstrict liability, failure to warn, and general negligence. Opinionat 6, 30. The jury wasinstructed that these were discrete claims with different elements—inparticular, the negligence claim rested not on any failure to warn but on negligence in the “design, manufacture, or supply of asbestos.” Jd. at 30-31. Consistent with these instructions, the verdictelicited separate findings on these discrete claims. Id. at 30, 31. Underthese instructions, the jury found for Webb on both claims, including on general negligence that Special Electric was “negligent in the supply ofits asbestos.” Opinion at 30. On appeal, Webb showedthat the JNOV,even if somehowproper, could not have affected the general-negligence claim. The nonsuit motion— the only motion ever brought to challenge the negligence-based claims— expressly “targeted only ‘the failure to warn cause of action.”” Opinion at3. Accordingly, it did not “purport to challenge or address the general negligence verdict.” Jd. at 31. Because that verdict stood unaffected by the trial court’s post-verdict ruling on failure-to-warn, a JNOV vacating the entire verdict was improper. Judgment for Webbrested on the unaffected general-negligence verdict. 10 The Opinion finds substantial evidence to support a verdict for general negligence in the “supply of asbestos” unrelated to failure to warn. Opinion at 31. Specifically, the jury could have reasonably foundthat “Special Electric had marketed its asbestos with unreasonable disregard forits dangers” based on evidencethat Special Electric (1) sold an asbestos type (crocidolite) that was “particularly dangerous,” (2) marketed its more dangerousasbestos as “much safer” than other asbestos types, and (3) sought to “distance itself” from its “dangerous product”by selling it through the entity “Special Electric” (instead of “Special Asbestos”). Opinion at 31 (as modified). In sum, this evidence supported a finding that Special Electric not only “failed to warn foreseeable users that its asbestos is dangerous” but also “attempted to affirmatively enhance its marketing of particularly dangerousasbestos by concealing the added danger and by marketingit as having lesser danger than other asbestos.” Opinion at 31. In response to Webb’s showing below that this evidence supported a finding of negligent asbestos supply, unrelated to failure to warn, Special Electric offered no “cogent” argument. Opinion at 31-32. As the Opinion holds, “Special Electric does not explain why the cited evidence could not support the jury’s findings that Special Electric acted negligently” in “marketing and supplying” its product. /d. at 31. Accordingly, the Opinion holds that Special Electric waived its challenge to the general-negligence verdict: Special Electric offers neither case law nor any other authority on the subject to support its contrary contention that this evidence shows only a failure to warn. Forthat reason,it is insufficient to support that conclusion. (Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4" 939, 956 [Absenceof cogent legal argumentorcitation to authority allows court to treat contention raised on appeal as waived”].) 11 Opinion at 32 (emphasis added). Here, although Special Electric purports to challenge the general- negligence verdict, it fails to address its waiver below. Petition at 22-23. Instead, Special Electric pretends that the appellate court rested its holding about the general-negligence verdict not on “evidence” but on mere “allegations in the complaint, argumentsto the jury, and jury instructions.” Petition at 22. But Special Electric then attacks the quality of the evidence of negligent marketing set forth in the Opinion (id. at 22-23)—ignoring the standard of review requiring all evidence to be construed “in the light most favorable”to the verdict. Opinion at 11. Like in the court below, Special Electric again fails to present any cogent legal argument, nor any law or other authority, as to why the evidenceis not substantial in support of the general-neglience verdict. Nor does Special Electric challenge the holding ofits waiver below. Accordingly, the sufficiency of the general-negligence verdict to support the underlying judgment, and thus to foreclose JNOV,is not properly presented by the Petition. Thus, review cannotresult in a reversal and should be denied. C. The Petition rests on numerous misstatements and asserted issues that cannotbe raised here. Finally, the Petition should be denied becauseit rests on a host of misstatements and inaccuracies, including the assertion of issues that are not properly presented here because they were not preserved below. Becausethese instances are scattered throughoutthe Petition and touch on numerousasserted issues, we list them here in noparticular order, to inform this Court’s consideration of the propriety of granting review. 12 1. Special Electric continuesto assert that the asbestos it sold always came with a warning. E.g., Petition at 11 (“bags with the OSHA warning”). And Special Electric cites authorities for the proposition that, once a manufacturer gives an “adequate warning,” it can rely on others to pass that warning along. E.g., Petition at 4, 16 (“responsibility must be absolvedat the time it provides adequate warning”); see Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4" 23, 29 (under “sophisticated intermediary” doctrine, a manufacturer can fulfill its duty to warn by (1) “provid[ing] warnings to the intermediary”and then (2) “rely[ing] upon the intermediary” to “pass on” the warning to the productuser, if such reliance is reasonable andjustified under the circumstances). These assertions that Special Electric gave a warning ignore the Opinion’s correct holding that there was “substantial conflicting evidence” on whetherSpecial Electric’s asbestos contained any warnings. Opinion at 8 and n.12; accordid. at 19 and n. 19 (“evidence was disputed”as to “whether warnings were onall the bags of asbestos shipped by Special Electric”). Thus, any defense based on giving a warning (and then relying reasonably on an “intermediary” to pass on the warning) wasrejected by the jury based on substantial evidence. 2. The Petition repeatedly claims that Webb “did not assert” that Special Electric had a duty to “warn Webb.” E.g., Petition at 3, 15. This is simply wrong. Consistent with the well-established law, Webb always contendedthat Special Electric, like every product manufacturer, had a duty to take reasonable steps to warn users of its dangerous product, thus including Webb. What Webb’s counsel “disclaimed”at oral argument was whetherthe duty required Special Electric to “warn Webb directly”—i.e., to know the identity of every ultimate downstream user ofproducts containing 13 Special Electric’s asbestos. Petition at 14; Opinion (Dissent) at 3. Andthis is correct. The duty is to take reasonable steps to warn,a duty that a manufacturer can fulfill without direct contact with every consumer. But Special Electric did not comecloseto fulfilling its duty. To the contrary, substantial evidence showedthatit “had no intention of making any effort to warn potential users or obtaining Johns-Manville’s aid in doing so.” Opinion at 26. 3. The Opinion does not “hol[d] in general that there was a duty to warn Webbandthen leav[e] it to the jury to decide the scope ofthat duty.” Petition at 16. Special Electric’s duty was to take reasonable steps to warn users of its products dangers. The jury properly decided whether Special Electric breached that duty—i.e., whether Special Electric took reasonable steps to warn.' Andsubstantial evidence supports the jury’s finding that Special Electric breachedits duty. 4. The Petition continues a false theme that Special Electric soundedbelow:that the trial court had no timeto rule on Special Electric’s pre-verdict motions and expressly deferred those rulings until after the verdict, with Webb’s acquiescence. F.g., Petition at 2, 5 (verdict returned “before any hearings on the two pre-verdict motions could be held”), 24 (court “deferred ruling so as notto delay the trial and impose further on the jurors”). According to Special Electric, Webb “never objected to deferring the rulings” and in fact “asked for more timeto briefthe issues.” Petition at 24 (citing 11 RT 3003-3005; 18 RT 6602:23-28). ' This Court recently reiterated this distinction between duty and breach issues in Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4" 764, cautioning lower courts against deciding factual “breach” questions underthe guise of “duty” analysis. 14 Not so. The only procedure that Webb agreed to acquiesced was “deferring” the ruling to allow briefing, and then a ruling, before the verdict—prior to which there wasplenty oftime to rule. Special Electric movedfor nonsuit on February 2, andthetrial court allowedbriefing (11 RT 3004:1-3); Webb filed his opposition on February 8 (1 AA 77-85); and the jury returned its verdict on February 17 (1 AA 143-150). From February 8- 17, Special Electric was free to request a ruling, but it never did do so. More importantly, nowhere doesthe record reflect that the court or counsel, before the verdict, ever discussed delaying the pre-verdict-motion ruling until after the verdict—let alone Webb agreeing to that improper procedure. 5. The Petition is wrong to claim that the Opinion “has created new and unreasonable proceduraltrapsfor litigants andtrial judges.” Petition at 29. The procedural missteps were taken by Special Electric, and any supposed “traps” were of its own creation. Special Electric moved for nonsuit and directed verdict, then failed to request or obtain a ruling before the verdict was entered (many dayslater). Once the verdict was in,all Special Electric had to do to continue its challenge wasto file a post-verdict motion for JNOV (or new trial)—the usual procedure. See Beavers, 225 Cal.App.3d at 328 and n.6. Indeed,this is whatthe trial court, just after the verdict, “suggest[ed]” Special Electric do—but Special Electric declined. Opinion at 6 (“Special Electric said it would not movefor newtrial and [JNOV]”). Far from falling into a “trap,” Special Electric ensnareditself. 6. The Petition is wrong to contend that Special Electric’s procedural gaffe should be overlooked becausethetrial court’s order vacating judgmenton the verdict, although procedurally erroneous, caused no “prejudice.” Petition at 27-28. According to Special Electric, the “same result would have obtained”ifthe trial court had not granted an improper 15 “JNOV”motion that was never broughtbut had instead (1) ruled before the verdict on nonsuit, or (2) ruled post-verdict on a properly noticed JNOV motion. Petition at 28. Butthatis not how the “prejudice” inquiry works. Special Electric asks this Court to assess what would have happened if Special Electric had followed some procedure thatit never followed,i.e., obtained a ruling on nonsuit, or brought a proper JNOV motion(asthetrial court suggested). We do not know what would have then happened because Special Electric never followed these procedures. Instead,in assessing trial court error for prejudice, the reviewing court asks simply:if the trial court had not entered the erroneousruling, would it have affected the outcome? Here the answeris “yes.” The only motion presented to the court for a ruling was a pre-verdict nonsuit motion that had been vitiated by the verdict. Thetrial court’s granting ofthat motion(in the guise of a JNOVruling) waserror. If the trial court had not committedthaterror,i.e., had not granted a JNOV that vacated the verdict, then the judgment for Webb onthe verdict would be intact. That is prejudice. Moreover, the entire procedure prejudiced Webbalso because Special Electric’s arguments continually changed, denying Webb the opportunity to properly oppose them. As the Opinionnotes, after the verdict the “grounds argued by Special Electric . . . were not the sameas thosestatedinits initial briefs”—i.e., in the only motions Special Electric ever brought. Opinion at 6. Moreover,if Special Electric had pressed for a pre-verdict ruling on the nonsuit motion that was brought, Webb would have been afforded the “opportunity to offer additional evidence to overcomethe claimed deficiencies in [his] case.” Opinion at 8 n.10. 16 7. The Petition continuesto assert “no evidence that Webb was exposed to asbestosattributable to Special Electric. Petition at 4. But this argumentis not preserved. The jury foundin its verdictthat that “Webb was exposedto asbestos products sold or supplied by Special Electric.” Opinion at 6; see 1 AA 144. Special Electric’s pre-verdict motionsdid notchallenge the exposure evidence. Opinion at 3-4,5. Accordingly,the trial court’s JNOV vacating the verdict did not address exposure, resting only on a supposed lack of a duty to warn. Opinion at 7-9. Webb appealed the JNOV,challenging that order andits reasoning. But Special Electric did not file a protective cross-appeal, which was required if Special Electric wanted to challenge any part ofthe underlying verdict. Opinion at 31-32; see Sanchez-Corea v. Bank ofAmerica (1985) 38 Cal.3d 892, 910. Lacking a cross-appeal, Special Electric has no “standing” to challenge other verdict findings unaffected by the erroneous JNOV. Savnik vy. Hall (1999) 74 Cal.App.4" 733, 739 n.5. 8. The Petition alsotries to revive a claim that Special Electric has long abandoned—that SpecialElectric could not face “strict liability” because it was supposedly not a seller but a mere “broker”of asbestos. Petition at 19-22. Special Electric’s directed-verdict motioninitially raised this argument. Opinion at 5. But after the verdict, Special Electric droppedthis argument, tethering both its nonsuit and directed-verdict motionsto its arguments aboutits “duty to warn.” Opinion at 6-7. Andthetrial court ruled only on the “duty to warn”issues, never again addressing the long- abandoned “broker” argument. Opinionat 7-9. Moreover, the old “broker” argument expressly challenged only a “strict liability” finding. Opinion at 5. But onstrict liability, the jury found 17 for Special Electric. Opinion at 6 (“no design defect”). Accordingly, the verdict does notrest on strict liability, making Special Electric’s challenge to strict liability meaningless. CONCLUSION Special Electric’s petition fails to present any groundsfor this Court’s review, which should be denied. Dated: May 13, 2013 PAUL & HANLEY LLP LAW OFFICE OF TED XW. PELLETIER / Ted W- Attorneys for Appellants CERTIFICATION OF WORD COUNT I Ted W.Pelletier, hereby certify that this brief, exclusive of tables, consists of 4,846 words, in 14-point Times New Romantype, as counted by my word-processing program. / \ Ted W. Helletier { . } 18 PROOF OF SERVICE BY MAIL (C.C.P. §1013(a), 2015.5) I, the undersigned, hereby declare under penalty ofperjury as follows: I am a citizen ofthe United States, over the age of 18 years, and nota party to the within action; my business address is 22 Skyline Road, San Anselmo, CA 94960. Onthis date I served on the interested parties in this action the within document: ANSWERTO PETITION FOR REVIEW by placing a true copy thereof enclosed in a sealed envelope, postage prepaid,in the United States Mail at San Anselmo, California, addressed as follows: Edward R. Hugo Jeffrey Kaufman Brydon, Hugo & Parker 135 Main Street, 20" Floor San Francisco, CA 94105 For RespondentSpecial Electric Co., Inc. Clerk, Court of Appeal Second Appellate District, Division One 300 S. Spring Street Los Angeles, CA 90013 Clerk, Los Angeles County Superior Court 111 N. Hill Street Los Angeles, CA 90012 Executed at San Anselmo, California on May 13, 2013 FRWP er
