WEBB v. SPECIAL ELECTRIC COMPANY

Respondent’s Opening Brief on the Merits

Cal.September 10, 2013

SUPREME COURT FILED $209927 SEP 10 2013 IN THE SUPREME COURT OF a ice Clerk THE STATE OF CALIFORNIA Frank A. McGuire Cler' Deputy WILLIAM B. WEBB AND JACQUELINE V. WEBB, APPELLANTS, V. SPECIAL ELECTRIC COMPANY,INC., RESPONDENT. AFTER A DECISION BY THE COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION ONE CASE No. B233189 SUPERIOR COURT OF THE COUNTY OF LOS ANGELES, CASE NO. BC436063 HON. JOHN SHEPARD WILEY OPENING BRIEF ON THE MERITS EdwardR. Hugo[Bar No.124839] ehugo@bhplaw.com JamesC. Parker [Bar o. 106149] jparker@bhplaw.com Jeffrey Kaufman [Bar No.48095] jkauftman@bhplaw.com Josette D. Johnson [Bar No. 195977] jjohnson@bhplaw.com BRYDON HUGO & PARKER 135 Main Street, 20th Floor San Francisco, CA 94105 Telephone: (415) 808-0300 Facsimile: (415) 808-0333 Email: service@bhplaw.com Attorneys for Defendant/Respondent Special Electric Company,Inc. $209927 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA WILLIAM B. WEBB AND JACQUELINE V. WEBB, APPELLANTS, Vv. SPECIAL ELECTRIC COMPANY, INC., RESPONDENT. AFTER A DECISION BY THE COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION ONE CASE NO. B233189 SUPERIOR COURT OF THE COUNTY OF LOS ANGELES, CASE No. BC436063 HON. JOHN SHEPARD WILEY OPENING BRIEF ON THE MERITS Edward R. Hugo [Bar No. 124839] ehugo@bhplaw.com JamesC. Parker [Bax o. 106149] jparker@bhplaw.com Jeffrey Kaufman [Bar No. 48095] jkautman@bhplaw.com Josette D. Johnson [Bar No. 195977] jjohnson@bhplaw.com BRYDON GO & PARKER 135 Main Street, 20th Floor San Francisco, CA 94105 Telephone: (415) 808-0300 Facsimile: (415) 808-0333 Email: service@bhplaw.com Attorneys for Defendant/Respondent Special Electric Company,Inc. TABLE OF CONTENTS Page(s) STATEMENTOF ISSUES FROM PETITION.......cceccssccssscssesscsssessercsscssscsensesees 1 I. INTRODUCTIONccc cccccssssessesssessessecssencecsesseecssecseesseeceesscesssceeneesaseens 2 Il. STATEMENT OF FACTS...ccccsesssssssscesseesseesecssscessessneesscssssseeseseseessesens 4 * TOASOUTHAFRICANMININGCOMPANYcond B. JOHNS-MANVILLE WASASOPHISTICATED PURCHASER OF ASBESTOS:CONTAININGPRODUCTS.econ Cc. IT ISSPECULATION THAT WEBB WASEXPOSED TO CROCIDOLITE BROKEREDBYSPECIAL ELECTRIC.............. 6 WW. STATEMENT OF THE CASE.........cccsccssssscssssscsssssscsssssstserecssesecersesseseees 8 A. TRIAL COURT PROCEEDINGS....... cece eessessesseesseeseesseeseeesseenees 8 B. COURT OF APPEALOPINION........ ec cccessestsetessescsssessceeeseceneenees 9 1. THE MAJORITY DECISION .esseessccesssecseseceseseseescaceesesecteseseeaeaceees 9 2. THE DISSENT......ccecssesscseescesseesereseseceseneecesersaseseeseeeesesseseeeeenneses 9 3. PETITION FOR REHEARING.......ceesccsceesseeseceeeeeecesseeeneeeaseeeeeues 10 IV. ARGUMENT sesteeensceeseaaeceeessueceesensesessaeseseessusecsenacesensueeesensecesaesessnseceaeeeessees 10 A. ABROKERORSUPPLIER SHOULD NOT HAVE A DUTY TO WARNASOPHISTICATED MANUFACTURER OF HAZARDS THE MANUFACTURER ALREADY APPRECTATES1.0... eecesessssescessseesseseeseessecssccaseeaeeoeseeneeestasesereeensens 10 1. THE PURPOSE OF THE DUTY TO WARN.......ccccccccccsssseececeeceses 10 2. THERE IS NO DUTY TO WARN A SOPHISTICATED PURCHASER/INTERMEDIARY.....csssssscsssecsseesteseeeseecseesaeesaeeees 13 3. STEWARTV. UNION CARBIDE DOES NOT APPLY AND ITS DICTUM IS INCORRECT....cccccccscsccccccccesseccecesccsscscsssecessssccceeees 18 B. A BROKER OR SUPPLIER TO A SOPHISTICATED MANUFACTURER SHOULD NOT HAVEADUTY TO WARN END-USERS, WHEN THE MANUFACTURER ALREADY OWES A DUTY TO WARN AND THE SUPPLIER HAS NO REASONABLE MEANS OF COMMUNICATING A WARNING Qo eccecccccesscseserssssssesecscesssestessecsasecseaseaeseeaseeesataceseeseenes 21 1. JOHNS-MANVILLE OWEDA TORT DUTY TO WARN CONSUMERS, A DUTY THAT THE LAW ALLOWSSPECIAL ELECTRIC TO PRESUME WOULDBE DISCHARGED........-.se000 21 2. SPECIAL ELECTRIC HAD NO MEANSTO WARN WEBB, AND EVEN PLAINTIFES DID NOT ASSERT THATASA BASIS OF LIABILITY ......ccccscsccccccccccscssscseseccsceccceuccsecsecscuscsecessecueessesseeeeees 25 C. THERE IS NO CAUSAL RELATIONSHIP BETWEEN WEBB’S INJURIES AND A LACK OF WARNING FROMSPECIAL ELECTRIC...cccssssesccsseeeesesceesecsesecsesasecseesesessssesseseeesaseeeaeeneneors 30 D. BECAUSE THE POLICY REASONSFOR STRICT PRODUCTS LIABILITY ARE INAPPLICABLE UNDER THE FACTS HERE, SPECIAL ELECTRIC, AS A BROKER, SHOULD NOTHAVE BEEN SUBJECT TO STRICT LIABILITY occesesseeeseeeereeeenes 32 E. A GENERAL NEGLIGENCE CLAIM CANNOTBE SUSTAINED MERELY ON ALLEGATIONS INSTEAD OF THE FACTS ESTABLISHED AT TRIAL...cessecessesereesereeeeees 37 F, TRIAL COURTS HAVE DISCRETION AS TO WHEN TO RULE ON MOTIONSFORNONSUIT AND DIRECTED VERDICT, AND TECHNICAL TIMING ERRORS SHOULD NOT LEAD TO REVERSAL ABSENT UNDUEPREJUDICE..39 1. THE COURT OF APPEAL WRONGLY ASSESSED THE MOTIONS FOR NONSUIT AND DIRECTED VERDICT BY THE PROCEDURES APPLICABLE TO A MOTION FORJNOV......cccscssssssssessceseceseenees 39 2, THE COURT OF APPEAL ERRONEOUSLY TREATED THE MOTION FOR JNOV AS HAVING BEEN MADE SUA SPONTE...ccccseccssssccccscceccececeeessssessesscecacceccsoaesseseseseeceesoasoes 41 3. THE COURT OF APPEAL IMPOSED ERRONEOUS PROCEDURAL REQUIREMENTSON A SUA SPONTE MOTION........ccscesceneeneee 42 4, THE TRIAL COURT HAD THE POWER TO GRANT A MOTION FOR JNOV PRIOR TO EXPIRATION OF THE TIMETO FILE A MOTION FOR NEW TRIAL. .....cccsssessseccecoecseccccccesssssscececeeecceeneee 43 5. A SHOWINGOF UNDUE PREJUDICE IS REQUIRED FOR REVERSAL .....cccscesssesesceseesssceuaceessessescosescesseeeeucusnsesseessae44 G. THERE IS NO SUBSTANTIAL EVIDENCE WEBB WAS EXPOSED TO ASBESTOS BROKEREDBY SPECIAL ELECTRIC... ecscscsscssssscsssesssecseseceseeseccseeessesenseeeseseseaseeseseeseetetsees 46 V. CONCLUSIONWeeneeceseeseesetetessetseeceseeseesceasenecneseeeeeneseeeaeenesasaesnesacaes 50 CERTIFICATION OF WORD COUNT...ccsssssssescsecessccnseesesessseasseeeeaeeeeseees 51 il TABLE OF AUTHORITIES CALIFORNIA CASES Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987 wo.cecccsscsestsessscssscssscesteseterenereeescoeseaeeeenesenesecasseneesenenenenses 11 Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96 oo. cccecsessssssesessssssssssssssescssesscesssserssenseseseesesesesies 48 Arena v. Owens Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178 wo ccceccceseesssssssssssssssssstseecsssesesssesesssnseesees 27 Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527ceececcssssssesssssssessesesssesessessssssssesssssestseseseeseees 34 Artiglio v. General Electric Co. (1998) Cal.App.4th 830 wcsscsesesscesecesssscssseessessssseseresseeressssseesseessssees 27 Bay Summit Community Assn.v. Shell Oil Co. (1996) 51 Cal.App.4th 762 oo. cieccsscscssssssssseeesssssessesesesesssesseenseeeeeees 32, 33, 34 Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310... ccccsssseestsrecetenssscenseesssssseesessseetseeeesens 40, 41 Blackwell v. Phelps Dodge Corp. (1984) 157 Cal.App.3d 372... cccsssssesescsesssescscsssscsssssessssssessessssesssssssscessseens 28 Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d 930... cccccsssesssssesssesesssccsssessssserststsessssesscessrseeersrseneees 11 Carlin v. Superior Court (1996) 13 Cal4th 1104 oo.cssssesssssssesssessscssssscesscsescssssessessessessessessersseseeees 20 Carmichael v. Reitz (1971) 17 Cal.App.3d 958...cccceeessssescessssseseessssnssssessssesesssssesesesseess 15, 20 Celli v. Sports Car Club ofAmerica, Inc. (1972) 29 Cal.App.3d SL Liv ccccsscscseetscsensssersssssssssseressesssssseseesesssssceseaes 21 Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579... ccccecssssesesesscscssessssscsssessssssssssssssssssscsscscssesssscessssssrseseees 42 Cornette v. Dept. of Transportation (2001) 26 Cal. 4th 63 oo... ccccssssssesscessssssssesssnsessscssesssssssessssessessssscsssssseseseseasassenas 44 DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329 occssscssesssssesssssserscssstssensssesesnsseneneseseses 38, 49 Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332.....cceessssesesesssseseseccsssseeseneesssesssereseensenesseneseneeees 22 ili Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650 oo... sccesssssessessseccsssssssscssessescssscssssseesasseasseasseaeeees49 Espinoza v. Rossini (1966) 247 Cal.App.2d 40... eccccsscsessccscassesstccscscacssecscscscscaesceseseeseeseeees 44, 45 Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248 ww.peeseseseseecesseesecssueesecscessesesssescssassnsesenenesereees 34 Fierro v. International Harvester Co. (1982) 127 Cal.App.3d 862.0... .ccccssccssssstssscesssssessssssscesssssesssenssseecsenees 14, 19,31 Garza v. Asbestos Corp., Ltd. (2008) 161 Cal.App.4th 651 oocsssesessscceseeseesssscscassssseenesssetsseesaseeseeasetes 15 Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444...ccscsescecresecsessesesensceseenseseeeaees 11, 15, 28, 29 Harris v. Johnson (1916) 174 Cal. 55... eccsccssesssessesssssseessessesessssescssesssesssesessecesseecsisesesesesseesseeeens 21 Herrill v. Rugg (1931) 114 Cal.App. 492 vo. ccsesssssesscscsesesssessssscssssssesessseseceseeresseseeesseeeeensenees 42 Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424 vicceecssssssssssssescsccecsssssssesecssesessesseessseseeneceeeaseaes45 Huynhv. Ingersoll-Rand (1993) 16 Cal.App.4th 825 ...cceeccsssssessssccssescsssssscssesssecssasesseessseessseenecssseesseeesen 13 In re Marriage of Goddard (2004) 33 Cal.4th 49 .ccsccsscsssscssessssessessssssssssesesssesssssessescsscesssraseeersesseseeeees 45 In re Merrick V. (2004) 122 Cal.App.4th 235 oo. csseccssessssessssecsssssssssessssssessssesssssssasessssssesssenees 8 Jahn v. Brickey (1985) 168 Cal.App.3d 399... ccesscesssscssssessssscsssseesssscasssssscssesssssstseseeceseeees45 Jenkins v. T&N PLC (1996) 45 Cal.App.4th 1224 ccccssscsssssscenssssssesssesscsssesseassesssenssseaseeseeeseees 27 John Norton Farms, Inc. v. Todagco (1981) 124 Cal.App.3d 149... icceseeseesssssescessssessescscscsssssssessesssessssseseens41 Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56 occeccscssccstccssscsesssseesesccssscsssscsessssseecsasessenseeesens passim Johnson v. Honeywell Intern.Inc. (2009)179 Cal.App.4th 549 occceestesssscscecsssessecsssesesesssesssesessesesees 31, 32, 38 King v. Hercules Powder Co. (1918) 39 Cal.App. 223 .ccsscssssssssesesescssscerscssesscecscssssscssssssssssssssessenstecererees 39 iv La Mannav. Stewart (1976) 13 Cal.3d 413... ccscsssessssssssseesssessssessssssssssnsssessscssssssssessessesseerssssesaees43 Lineaweaverv. Plant Insulation Co. | (1995) 31 Cal.App.4th 1409 ooocsscseeeecssreeerecsssssnsesesseseeeseesseseaeesseessen 49 Macias v. California (1995) 10 Cal4th 844 woeeessssesssescsesececeesssesessscsessesssessesessseesseeseceaveceeaees 13 McGonnell v. Kaiser Gypsum Co., Inc. . (2002) 98 CalApp.4th 1098 .....ccscsssesssssscssesssssssessssssssccasseeesssesestessesseenseerens 48 Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465 o..ccccsssessccssscsesseseeesessessssssseasscssessaressssssseasansseseasaseces 33 Murphy v. E. R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672...cccccscsssessesssssesssssssssssesssessssesssseesssseeessssecssseresseesssessenen134 Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148 vccccsssssessscsssesssscssesesscesscasseessescereresaceseesersseeseseetes 30 O’Neil v. Crane Co.. (2012) 53 Cal.4th 335 wc cscesssssssescssssesssecsssscssssssessssssssssseesssssessseseeseasaseeenees 26 Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456 oo. sccccssescsesesescsesessssssescsessesssseesssssssssssscscsececseeasenseenens 30 Pena v. Sita World Travel (1978) 88 Cal. App. 3d 642... cccsssccsesesssssecseesscsssssessesscssssesssessesesseeaeesnees 35 People v. Gardeley (1996) 14 Cal.4th 605 oo.cccsscsescssssseesscecsessseessssssessecssssssssessessesassesaseseess 44 Persons v. Salomon North America, Inc. (1990) 217 Cal.App.3d 168.0... ccssssceesssessscscscssssssseesssesssssasssssssesssssenes 20, 23 Peterson v. Superior Court (1995) 10 Cal.4th 1185 oo. ccccsssssessesscscsssescssssssssssasscssesscssssssssessesecsseses 32, 33 Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349 oocecsssssessesssssssesesscssssssesssssssesscsensssssceserseeseees 15 Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 vo ccsccsssesesesescseesesssssessssesssssssssssesssssssesseseseseessesseneeeaes 48 Sanchez v. Hitachi Koki, Co., Ltd. (2013) 217 CaLApp.4th 948 woecessssesssssesesscssseecssessssssseseenesseseneseeees 26 Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461 oocecsesstssscssessessssscscesscesessssessssssssssessesenseees 32 Sanchez-Corea v. Bank ofAmerica (1985) 38 Cal.3d 892... ccssssssssssscscscscecsessssssesscscssssscsssssscesssssssessssesessesenseses 43 Stevens v. Cessna Aircraft Co. (1981) 115 Cal.App.3d 431...csesesetsscesrssseetssseseressssessssssssesssessssesessesesees 29 Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d SLi cccsesseesssscsesessssssssssssssssssesstessescsssssseseensesisseecseesssessees 17 Stewart v. Cox (1961) 55 Cal.2d 857... ecceccessssssssescessssetssscascesessesessseerssssnsesessseseassseeeeees 22, 31 Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23 oicccsssessesssseecsessesssesesssessssssscssssseesesserees 18-20 Stultz v. Benson LumberCo. . (1936) 6 Cal.2d 688...ccccsseceetssscecseenscssseecsrssecesssssescseecssesscssesssseseereseees 31 Sturgeon v. Leavitt (1979) 94 Cal.App.3d 957. cccccccsssssccsssseesssessssescsssssssusecesssnsseseesssnseesssesssneess 43, 44 Tauber-Arons Auctioneers Co. v. Superior Court (1980) 101 Cal.App.3d 268.00... eeccccsssecssssenssessssesesssssscssssessssessenesssesessenes 33 Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564 wccccsscssessssersersssesssrssesseesessseresserens 11, 33, 34 Torres v. Xomox Corp. (1996) 49 Cal-App.4th 1 occccscssssscessesssssssessssssscessssssssscscssesessesseseees 20, 28 Tucker v. Lombardo (1956) 47 Cal.2d 457... cceecesesssssesssssscssesscscsssssssssssesesssssessesecssssesscesssesessssesessaes 22 Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256... ccecssscsessssssesesesecesssesssssssssssssesssesesssasesscscesesssseneessenss 33 Walker v. Stauffer Chemical Corp. (1971) 19 Cal.App.3d 669.0... scccsstsecssssectsnssssesssnscssssesssesessscsapeneesenseees 28, 37 Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078 0...ssssessssessessssessssescsssssssssesssscseesesessssesesssenss 49 Wiler v. Firestone Fire & Rubber Co. (1979) 95 Cal.App.3d 621.cccscsssssscsessscesseessesssssssssessensssesesessessesssensessnenees 15 Wilson v. County of Los Angeles (1971) 21 Cal.App.3d 308...csssssssssssssssssssssssssenecsssnssreeesescesesseseteesssesessness 42 Zambrana v. Standard Oil Co. (1972) 26 Cal.App.3d 209...ccssccssssessssscsesssssssesssessssssssssesessensseeesesessreneeseessess 15 vi NON-CALIFORNIA CASES Adams v. Union Carbide Corp. (6 Cir.1984) 737 F.2d 1454 wiecssscsssssscesecssseressseeesesessescassesesaceceeteseeeseeetees 22 Adkins v. GAF (6% Cir. 1991) 923 F.2d 1225 iceecsscscssssscescsssesceststscesscssecscseeeteeeseseeseretseees 29 Aikins v. General Elec. Co. (E.D. Pa., Dec. 9, 2011, MDL 875) 2011 WL 6415117 oooeeeeeeeeeseneeees 16 Akin v. Ashland Chemical Co. (10th Cir. 1998) 156 F.3d 1030 wo.ceesecseetsseeseeeecetssestesesssesseneeees 13, 14, 19 Ames v. Ford Motor Co. (S.D. Tex. 2003) 299 F. SUpp. 2d 678. vcccecesseseserssssseseceessssceseseeeeseeesseterseseees 36 Appersonv. E.I. du Pont de Nemours & Co. — (7th Cir.1994) 41 F.3d 1103 weessescsceesssesetseseseesssesecsesssetecesseessessetees 17 Balczon v. Machinery Wholesalers Corp. (W.D.Pa. 1998) 993 F. SUPP. 900... ceeeseseesesstsesesesssserecseseerereseeserenseees 35 Beale v. Hardy, (4th Cir.1985) 769 F.2d 213 oeecseecessssssssssscssesessssecesesscestscsesssessessssssecseessseesenes 17 Billiar v. Minnesota Mining and Mfg. Co. (2nd Cir. 1980) 623 F.2d 240... cecsssssessscscsssessersssssesscecesesssesesseesessseeasereeenees 12 Borel v. Fibreboard Paper Products Corp. (5th Cir. 1973) 493 F.2d 1076 uu...cc sesecsseecsssesesessessescsssssesssscssceseeaceseerseesesaves 16 Brito v. County ofPalm Beach (Fla. 4th DCA 1998) 753 S0.2d 109 wv.cesssssesesessseesesesecssessesesesesseseetseenereees 13 Davis v. Avondale Indus. (5th Cir.1992) 975 F.2d 169 wo. ecccccssesseessescesesssssssesscessssssseasscestenescessesessenes 17 Donlon v. AC andS, Inc. (E.D. Pa., Mar. 26, 2013, MDL 875) 2013 WL 1880820...ccsesseseeeeesees 16 Forest v. E.I. DuPont de Nemours and Co. (D. Nev. 1992) 791 F.SUpp. 1460.0...eeccescrsseseseeeesscseseteeersessesssssessessacesees 17 Goodbar v. Whitehead Bros, (W.D.Va. 1984) 591 F.SUpp. 552 oeiscessseccsceneseneesseecssesssecsseseesssessessesseensees 17 Gottschall v. General Elec. Co. (E.D. Pa., Dec. 9, 2011, MDL 875) 2011 WL 6424986 0...ceeestseeeereseenees 16 Haynes v. National R.R. Passenger Corp. (C.D. Cal. 2006) 423 F.Supp.2d 1073...ccssssssssscescsessssssessssssscessssseeseessseseaes 35 Vil Hays v. A.W. Chesterton, Inc. (E.D. Pa., May 1, 2012, MDL 875) 2012 WL 3096621........csscseseeseseeteeeeeees 16 Hoffman v. Houghton Chemical Corp. (2001) 434 Mass.624.......cscscssssssssssssssesssesssssseressssssssrssssssscserststetesstesesesessserers 17 In re Air Crash Disaster (6th Cir. 1996) 86 F.3d 498 oo.esessecessesseesesesesesstssessssecsssenssessenesesessees 15, 21 In re Asbestos Litigation (Mergenthaler) (Del. Super. 1986) 542 A.2d 1205weessssssesessessssesessssessesesseessseeneesees 16 In re Brooklyn Navy Yard Asbestos Litigation (6! Cir. 1996) 971 F.2d 831 vecesrsessscscsssssesscssessessesseneseessssssssseseseneseees 22 In re Related Asbestos Cases (N.D.Cal. 1982) 543 F. Supp. 1142....cccsssssseecssssesssssesssssscssssecssssecssssessssseesees 13 Kennedy v. Mobay Corp. (Md. Ct. Spec. App. 1990) 84 Md.ADpp.397 ...cccscsessscsssssesssscscssceserseensees 17 Lyons v. Premo Pharmaceutical Labs, Inc. (1979) 170 N.J.Super. 183, 406 A.2d 185 wo.sseeesescssssesesssesesseeeesesseeeees 35 Massey v. Cassens & Sons, Inc. (S.D. IL, Sept. 13, 2007, 05-CV-598-DRH) 2007 WL 2710490........scesesees 36 McConnell v. Union Carbide Corp. (Fla. 4! DCA 2006) 937 S0.2d 148... ccsccssescsscseressseserssssesssessarsssseseeseessaeenees 30 Musserv. Vilsmeier Auction Co., Inc. (1989) 522 Pa. 367, 562 A.2d 279, 283 ..csssccscssesersersssessscesseeesesssseeseeseeneseeee 35 Nelson v. Brunswick Corp. (9th Cir. 1974) 503 F.2d 376 woeeececcsecsssssssscscsscscssessssessssscsscsssssesecnesseesseneees 31 O’Nealv. Celanese Corp. (4th Cir.1993) 10 F.3d 249 ooccessssesssesssssecssssssssssssesessessessssseesessessseeseessees 17 Oscar Mayer Corp. v. Mincing Trading Corp. (D.N.J. 1990) 744 F.SUpp. 79... cccccssesssscssesssssssssssesssscsseseesssseseasessseeesesssesecsens 35 Shell Oil Co. v. Harrison (Fla. lst DCA 1982) 425 S0.2d 67 vececscsseesccsessessssssssscsssssssssesssssserseeeneesessees 42 Smith v. Walter C. Best, Inc. (3d Cir. 1990) 927 F.2d 736 ...ccesscssssecssessscssessscecressessssssssssssssseesssensessssereneens 17 Strong v. E.I. Du Pont de Nemours Co., Inc. (8th Cir, 1981) 667 F.2d 682...cccssccssssscrsssssesssesssessssssssesessssessssessensereees 19, 31 Travelers Indem. Co. v. Bailey (2009) 557 U.S. 137ve ecssssecssssessessesssssssesssscescsssssssssesssesscsesesessessssseseeecseseacseases 12 Vili Willis v. Raymark Industries, Inc. (4% Cir. 1990) 905 F.2d 793... esescssssssseesessesssssssesssenesesessssessessssecaseeenees 13, 24, 27 STATUTES Code Civil Procedure, S475 oe ecccsccssscsssessssessscessccesesscssesssenscsssesssesseestsssscessesssesueeceescessesssseesenscessassseseessaseases 45 S629 0... eescesssesccsssccsscscesesssscecssesssensecssessecssessecsssesssesssesseceseecessscsessesssscesesssseseesersssass 42 CONSTITUTIONAL PROVISIONS Cal. Const. Art. VI, S13.esccscssccssscsscsscssssessscsscsssssseessseessusesseseesseeseesesseeesneseeeeeess 44 OTHER AUTHORITIES Restatementof Torts 2d Torts, § 388 ..........csscssessscssscetecssesseeessaceees 11, 17, 23, 26 ix STATEMENT OF ISSUES FROM PETITION 1. Is it a tort not to warn a manufacturer of hazards the manufacturer already knows? 2. Is it a tort not to imposea contractual obligation to warn upon a manufacturer, when the manufacturer already owesa tort duty to warn? 3. Maythose associated with but not actually part of the chain of distribution, such as a broker, rely upon those within the chain, such as the manufacturer, to warn end users of hazards, especially when those outside the chain have no reasonable means to warn the end users? 4. Absenta reason to believe otherwise, may a broker presume a manufacturer will warn end users of hazards, especially when the broker has no reasonable means to warn the end users? 5. If they are not in the chain of distribution and do notprofit from the end product, are brokers subjectto strict productsliability? 6. If there was no duty to warn, can a general negligence verdict be sustainedif the only form of negligence was a failure to warn? 7. If there is no prejudice, may trial court rule after a verdict upon otherwise valid pre-verdict motions for nonsuit and directed verdict? 8. Alternatively, if there is no prejudice, maya trial court deem otherwise valid motions for nonsuit and directed verdict as motions for judgmentnotwithstanding the verdict (NOV), and rule upon them before expiration of the timefor filing a motion for newtrial? I. INTRODUCTION In the 1970’s a South African mining companysold crocidolite asbestos to Johns-Manville Co. — at that time one of the most knowledgeable companiesin the country concerning the hazards of " asbestos. Someofthat crocidolite may have foundits way into vent pipe madeat Johns-Manville’s Long Beach, CA plant. The vent pipe wassold, indirectly, toa Canoga Park plumbing supply store which employed | plaintiff William Webb. Four decades later Webb developed pleural mesothelioma, which heattributed, in part, to handling the Johns-Manville pipe. Plaintiffs sued a Wisconsin company that had brokered the mining company’s sale of crocidolite to Johns-Manville. Plaintiffs won a verdict against the broker, Special Electric Co. (“Special Electric’). After the verdict, the trial court granted Special Electric’s timely filed and deferred motions for nonsuit and directed verdict and deemed them motionsfor judgment notwithstanding the verdict. The Court of Appeal reversed, 2-1, ruling that Special Electric oweda duty to (1) warn Johns-Manville of the potential hazards of asbestos, (2) contractually compel Johns-Manville to warn downstream users and consumers, and (3) warn William Webbpersonally of those hazards. As summarizedby the dissent, “[t]he Majority holds that it can be tort to fail to tell someone something they already know,andthatit can also bea tort to fail to impose on someonea contractual duty to do something they already havea tort duty to do.” (Dissent 1.) The Court of Appealalso ruled thata trial court could not grant a JNOVbefore the time had expiredto file a motion for newtrial, or sua sponte grant a JNOV withoutfirst filing and serving a written notice. It found these technical errors required reversal even without addressing prejudice. As the dissent aptly noted, Plaintiffs themselves did not advocate the position adopted and there is no legal precedentforit. (Dissent9.) The decision of the Court of Appeal should be reversed andthetrial court’s original rulings reinstated. This case squarely presents an opportunity for this Courtto clarify the scope of the duty to warn,to expand the sophisticated user rule to include sophisticated purchasers/intermediaries, and to confirm the discretion of trial judges concerning the timing of rulings on nonsuit and directed verdict motions. Special Electric asks this Court to rule as follows: 1. A brokeror supplier of a componentor ingredient does not owe a duty to warn a sophisticated purchaserof the hazardsof that componentor ingredient when the purchaser already appreciates those hazards, noris the broker or supplier required to contractually compel the sophisticated purchaser or manufacturer to communicate warningsto downstream users when the purchaseralready owes a duty to warn, unless the broker or supplier has both reason to believe that the purchaser will not convey adequate warnings and a practical meansof communicating warnings to downstream users. 2. A broker or supplier does not owe a duty to warn downstream usersof the potential hazardsin a finished product when the broker or supplier is not a part of the chain of distribution for the finished product, the manufacturer already owes a duty to warn, and the broker or supplier has no practical ability to communicate a warning to downstream users. 3. Absent a showing of undueprejudice, a trial court will not be reversed for having exercised discretion to delay, until after the jury has returned a verdict, the grant of otherwise timely and proper motionsfor nonsuit or directed verdict. Il. STATEMENT OF FACTS A. SPECIAL ELECTRIC WAS A BROKER OF ASBESTOSFIBER TO A SOUTH AFRICAN MINING COMPANY Special Materials-Wisconsin brokeredthesale of the crocidolite asbestos. (6 RT 1652:16-17; 1667:25-27-1668:3; 1759:11-16; 10 RT 2723:26- 2724-3.) The Webbsalleged that Special Electric was a joint venturer with, and therefore responsible forall tortious conduct of, Special Materials; for purposesof this brief and without waiver or concession werefer to “Special Electric,” though Special Materials was the company which actually handled the transactions.! Special Electric was located in Wisconsin and acted as a brokerfor Central Asbestos Company, located in South Africa. The Johns-Manville employee that dealt with Special Electric considered it a “broker.” (9 RT 2586:9-12, 2592:17-2593:2, 2595:2-14; 2638:19-2639:2.) When it wanted crocidolite, Johns-Manville would issue a purchaseorder, Special Electric would provide Johns-Manville with shipment information, and Central Asbestos would ship the crocidolite and pay Special Electric a commission. (6 RT 1663:3-12; 9 RT 2592:17-2593:2.) The bags were shippeddirectly from South Africa to Long Beach. (6 RT 1658:1-9.) Special Electric never had possession of any asbestos. (6 RT 1 Special Electric Company,incorporated in 1957, wasin the electrical insulation business. (6 RT 1652:16-17; 1667:25-26.) Special Materials- Wisconsin wasincorporatedin 1969 as “Special Asbestos;” the name changedin 1976. (6 RT 1673:21-1674:1, 1759:8-10, 1760:16-18.) 1658:5-9.) In the 1970's, Johns-Manville’s purchase orders required that the crocidolite come shippedin special polywovenbags with a warning printed on them. (6 RT 1162:2-21; 1665:14-1666:3; 1670:6-20.) Asdiscussed below, Johns-Manville had numeroussourcesfor the supply of crocidolite and the South African mining company was not an exclusive supplier to Johns-Manville. B. JOHNS-MANVILLE WAS A SOPHISTICATED PURCHASER OF ASBESTOS AND A SOPHISTICATED MANUFACTURER OF ASBESTOS —CONTAINING PRODUCTS Johns-Manville began manufacturing asbestos-containing products in the 1850’s. (9 RT 2644:22-2645:1, 2645:14-18.) It made numerous asbestos-containing products, including cements, millboard, residential siding, roofing products,flooring, insulation and Transite pipe. (5 RT 1443:26-1444:25; 9 RT 2627:7-14, 2619:25-2620:7.) “Transite” was a Johns- Manville trademark that became a generic term for asbestos cementpipe. (8 RT 2105:23-2106:17.) Johns-Manville’s vast knowledge of asbestos is undisputed. By the 1970's, Johns-Manville had grown to 30,000 employees and operated numerousplants and asbestos mines in North America and overseas, including the Jeffrey Mine in Quebec, one of the world’s largest sources of asbestos. (9 RT 2616:20-2617:6; RT 2645:4-12; 5 RT 1441:25-1442:2.) Its pipe division includedsix plants processing a variety of types of asbestos for manufacturing pipes. (9 RT 2627:7-14, 2619:25-2620:7.) Johns-Manville’s research and development department knew “all the characteristicsof asbestos, even chemically-wise.” (9 RT 2645:19-2646:13.) Plaintiffs’ industrial hygienist agreed Johns-Manville knew the potential health hazards of asbestos by the 1930’s. (8 RT 2104:1-9.) Plaintiffs’ epidemiologist studied Johns-Manville, interviewed its employees, and toured a Johns-Manville asbestos cement plant and asbestos mine and milling operation. (5 RT 1224:11-1225:15, 1439:1-1440:8, 1441:8-20, 1441:21-24, 1442:6-16.) He agreed Johns-Manville was an industry leader and no companyin the United States had greater knowledge about asbestos. (5 RT 1446:18-1447:1, 1447:2-1447:10.) As a long-time asbestos mine owner and manufacturer, Johns- Manville knew howto handle asbestos. By the 1970's it had well- established asbestos safety practices in place. (9 RT 2647:1-9.) Johns- Manville purchased “a lot of types of fiber” from numerous sources. (9 RT 2642:5-8.) Johns-Manville did not look to brokers, including Special Electric, for information aboutasbestos. (9 RT 2647:10-19.) Special Electric could not have told Johns-Manville anything about asbestos that Johns- Manville did not already know. (9 RT 2651:3-6.) Johns-Manville schooled Special Electric about asbestos. (9 RT 2646:14-21.) The Court of Appeal agreed: “No one on this appeal doubts that Johns-Manville was a sophisticated user of asbestos, who needed no warning aboutits dangers.” (Opinion [“Op.”] 17.) OF IT IS SPECULATION THAT WEBB WAS EXPOSED TO CROCIDOLITE BROKERED BY SPECIAL ELECTRIC At its Long Beach plant, Johns-Manville made a variety of products, including “Transite” vent pipe. The formula for Transite vent pipe included chrysotile but not crocidolite, though trace amountsof crocidolite may have foundtheir way into the vent pipe because the plant would mix in scrap pipe whose formulas had included crocidolite. (8 RT 2365:21- 2368:16; 9 RT 2423:4-2424:21, 2427:5-10, 2453:18-26; 8 RT 2106:28-2107:24.) Notall scraps were recycled and some were disposed at dumpsites. (RT 2454:9-17). At most, less than 1% of the actual final blend of Transite vent pipe mightbe crocidolite. (9 RT 2440:24-26.) Johns-Manville sold its Transite vent pipe to numerous companies, including Familian Pile & Supply, which in turn sold to Pyramid Pipe & Supply where William Webb worked. (3 RT 653:24-654:7; 4 RT 1166:23- 1167:5.)? Transite pipe was a small percentage of Pyramid’s overall sales, and among the smallest of the various pipes it marketed. (3 RT 686:1-8; 4 RT 1171:6-10.) Webb’s “guesstimate” is that Pyramid carried the pipe for about ten years, maybeless. (3 RT 696:1-697:8, 697:13-25.) Starting in 1969, Webbat Pyramid occasionally handled Transite pipe, which he claims had no warnings. (3 RT 642:22-643:7, 649:19-21, 658:9-12; 650:6-10, 652:19-23, 685:17-28; 4 RT 1113:24-27, 1163:25-1164:1, 1170:19-24; 3 RT 667:17-24, 694:20-23.) In January 2011, William Webb was diagnosed with mesothelioma, a fatal cancerof the lining of the lung. He andhis wife Jacqueline commenced this action against Special Electric and othersforstrict productsliability and negligence, claiming that the mesothelioma was caused by exposureto asbestos from multiple sources, including crocidolite in Transite vent pipe. (3 RT 606:2-616:6, 609:12-24, 621:7-11, 624:17-626:27, 628:24-630:1.) 2 There are norecordsavailable at Pyramid or Familian to show when Pyramid purchased the Transite pipe. (3 RT 697:26-698:23.) 7 Il. STATEMENT OF THE CASE A. TRIAL COURT PROCEEDINGS Attrial, after Plaintiffs rested, Special Electric timely movedfor nonsuit on Plaintiffs’ failure-to-warn theories. Thetrial court deferred ruling on the motion. Subsequently, the parties briefed the issues. (1 Appellants’ Appendix (“App.”) at 62, 77, 151; 18 RT 6602:7-6603:1; 11 RT 3003:28-3304:3.) After both sides rested, Special Electric timely moved for a directed verdict. The court deferred ruling so the parties could brief that motion as well. (1 App.at 68, 176.) The jury returned a verdict on February 17, 2011 in favor of Special Electric on Plaintiffs’ design defect (consumerexpectations) theory, but against Special Electric onstrict liability failure-to-warn and negligence. (1 App. at 143.) The next day, February 18, 2011, Special Electric requested a hearing on its nonsuit and directed verdict motions, which the court set for March 16.3 At the hearing the courtat Plaintiffs’ request set a further briefing schedule. Supplementalbriefs werefiled and at the subsequent hearing the court granted both motions and,in the alternative, deemed them a motion for JNOV, and granted that motion. (1 App. at 196; 2 App. at 309; 383.) Judgment was entered for Special Electric and Plaintiffs appealed. (2 App. at 384; 404) 3 The February 18, 2011 minute orderstates that Special Electric’s motions were denied; they were not, as confirmed by the reporter’s transcript. (In re Merrick V. (2004) 122 Cal.App.4* 235, 249.) B. COURT OF APPEAL OPINION 1, THE MAJORITY DECISION The SecondDistrict reversed, holding that Special Electric had a duty to warn Johns-Manville, and a duty to warn Webb. (Op. 18-22.) The majority also foundthat Special Electric’s motions did not reach the verdict on negligence, and judgmentin favorof Plaintiffs was warranted on that causeof action. (Op. 29-32.) The majority also held that the trial court had no authority to rule on Special Electric’s nonsuit and directed verdict motions once the verdict wasreturned; the trial court could rule on those motions once the time to movefor a newtrial had expired butfailed to give proper written notice of intent to grant a JNOV on its own motion. (Op. 10-15.) 2. THE DISSENT . Justice Rothschild dissented to the entire Opinion. There wasno tortiousfailure to warn Johns-Manville because, as the majority admitted, “Johns-Manville was a sophisticated user of asbestos, who needed no warning aboutits dangers.” (Op. 17.) (Op. 17), andit is nota tort to fail to tell someone something they already know.(Johnson v. American Standard, Inc. (2008) 43 Cal.4* 56, 67.) (Dissent 2-3.) Not warning William Webb wasnottortious because the Webbs had never contended Special Electric could or should have personally warned him, 4 and Special Electric could presumethat, absent evidence to the contrary, Johns- Manville would honorits own pre-existing tort duty to warn Webb. (Dissent 3-4.) Moreover, any failure to warn Johns-Manville or impose a contractual duty on Johns-Manville to warn end-users was not a cause of 4 Plaintiffs’ counsel confirmed this disclaimer. (Answerto Petition for Review at 13-14.) Webb’s mesothelioma, as there was no evidencethat Johns-Manville would have heeded a contractual duty any morethanits tort duty. (Dissent6-8.) The majority's procedural holdings meantthetrial court could grant timely motions for nonsuit and directed verdict except, oddly, during the interregnum between thereturn of the verdict and expiration of the time to movefor a newtrial. In the absence of authority or any showing of prejudice that holdingis incorrect. (Dissent 8-11.) Finally, the dissent agreed with Special Electric that there was no “substantial evidence that Webb was exposedto asbestos supplied by Special Electric.” (Dissent 12; emphasisin original.) 3. PETITION FOR REHEARING A Petition for Rehearing wastimely filed. The court changed a factual statement® in its Opinion but denied the request for rehearing. IV. ARGUMENT A, A BROKER OR SUPPLIER SHOULD NOT HAVE A DUTY TO WARNA SOPHISTICATED MANUFACTURER OF HAZARDS THE MANUFACTURER ALREADY APPRECIATES 1. THE PURPOSE OF THE DUTY TO WARN Plaintiff bears the burden of proving that a warning was owedby a 5 According to the Order, “Asbestos” was removed from the company name “inferably in order to distance itself from what consumers were coming to learn was a dangerous product.” (Order at 1.) No evidence supports the statement that the name was changedto “Special Electric” or the inference that “Asbestos” was removed for marketing reasons. (See n. 1 and Discussionat IV.E, infra.) 10 defendant. (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 576.) The purpose of a warningis to inform users of dangers unknownto them. “The user of the product must be given the option either to refrain from using the productatall or to use it in such a way as to minimize the degree of danger.” (Johnson, supra, 43 Cal.4"at 65, citing Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1003.) Productsliability law has developed exceptionsto this duty, including the obvious dangerrule, the raw materials/ bulk supplier doctrine, and the sophisticated user and the sophisticated purchaser/learned intermediary doctrines. Several California appellate courts have applied the raw materials/bulk suppler doctrine (e.g., Groll v. Shell Oil (1983) 148 Cal.App.3d 444, 448-449), and this Court has directly accepted the “obvious danger” and sophisticated purchaser defenses. The obvious dangerrule holds that “there is no need to warn of knownrisks under either a negligenceorstrict liability theory.” (Johnson, supra, 43 Cal.4th at 67; Commentk to Section 388 subdivision (b) of the Restatement (Second) Torts; Taylor, supra, at 577; Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d 930, 933-934 [dangers of slingshots so obvious warnings are unnecessary].) The obvious dangerruleis the basis of the sophisticated user defense: “A manufactureris not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have knownofthat risk, harm, or danger.” (Johnson, supra, 43 Cal.4th at 71 [HVAC manufacturers and technicians have known of dangers of phosgenegassince 1931, hence no warning of phosgene gas wasrequiredfor plaintiff-technician].) Both the sophisticated user and 11 obvious danger defenses negate the causation elementof a failure-to-warn theory; not warning a sophisticated user about dangershe already appreciates is not a legal cause of any harm that mayresult. (Id.) “The user's knowledgeof the dangersis the equivalentof prior notice.” (Id., citing Billiar v. Minnesota Mining and Mfg. Co., 623 F.2d 240, 243 (2nd Cir. 1980) [“[N]o one needs notice of that which he already knows”J.) The court below ruled that Special Electric owed a duty to warn Johns-Manville about the hazardsof asbestos. The facts are indisputable, however, that Johns-Manville knewall about asbestos. “From the 1920s to the 1970s, Manville was, by most accounts, the largest supplier of raw asbestos and manufacturer of asbestos-containing products in the United States.” (Travelers Indem. Co. v. Bailey, 557 U.S. 137, 140 (2009).) Johns- Manville was fully aware of the nature and hazardsof asbestos. Johns- Manville prescribed not only polywoven bagsspecially designed to contain the fiber, but also the language of the warnings to appear on each bag. (1 AA 208:21-23 and Exh. E thereto at 2 AA 284-285.)° The Court of Appeal recognized Johns-Manville “was a sophisticated user of asbestos who needed no warning about its dangers.” (Op. 17.) What could Special Electric have told Johns-Manville about asbestos that Johns-Manville did not already know? Underthe reasoning of Johnson, Special Electric had no duty to warn a knowledgeable purchaser such as Johns-Manville. 6 Plaintiffs’ counsel even argued: “Johns-Manville contractually required a warning to be on a bagof asbestos,” and “Johns-Manville required that the South African mining concern put a particular warning on the bag of asbestos.” (18 RT 6916:4-22.) Whetherall the bags contained an adequate warning (Op.17)is irrelevant; Johns-Manville’s extraordinary knowledge of asbestos wasso superiorto that of Special Electric’s that it already knew the warnings. 12 The sophistication of Johns-Manville brings us to a variation of the sophisticated user defense, often called the sophisticated purchaser or learned intermediary defense. A learned intermediary has been defined as “one who has knowledge of the danger and whose position vis-a-vis the manufacturer and consumer, confers a duty to convey the requisite . warnings to the consumer.” (Brito v. County ofPalm Beach, 753 So.2d 109, 111 n. 1 (Fla. 4th DCA 1998).) “[I]f the employer/purchaserhas ‘equal | knowledge’ of the product’s dangers, then the manufacturer may be able to rely on the employer/purchaserto protect its own employees from harm.” (Willis v. Raymark Industries, Inc., 905 F.2d 793, 796 (4Cir., 1990).) The sophisticated purchaser defense “absolves suppliers of the duty to warn purchasers whoare already aware or should be awareof the potential dangers.” (Akin v. Ashland Chemical Co., 156 F.3d at 1030, 1037 (10% Cir.1998).). This Court has previously acknowledged that defense. (Macias v. California (1995) 10 Cal.4* 844, 853 [“judicially created doctrines suchasthe ‘sophisticated purchaser’ and ‘bulk supplier’ defenses have becomefamiliar maxims of productliability law’]; Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825) [intermediary provided vagueor inadequate warning, and manufacturer could not necessarily rely on intermediary to convey warning to employees].) The sophisticated user/purchaser/intermediary defense applies here, as we show next. 2. THERE IS NO DUTY TO WARN A SOPHISTICATED PURCHASER/INTERMEDIARY In Johnson, this Courtrelied on several cases applying the sophisticated purchaser defense. Johnson cites with approvalIn re Related 13 Asbestos Cases, 543 F. Supp. 1142, 1150-51 (N.D. Cal. 1982), which held that manufacturers of asbestos-containing equipmentcould assert that the purchaser, the U.S. Navy, “was as aware of the dangers of asbestos as were defendants and that the Navy nonetheless misused the products, thereby absolving the defendantsofliability for failure to warn the Navy's | employees of the products' dangers.” (Id. at 1151.) This Court found that “reasoning persuasive.” (Johnson, supra, 43 Cal.4th at 69.) In Fierro v. International Harvester Co. (1982) 127 Cal.App.3d 862, also cited with approvalin Johnson, International Harvestersold a truck body to decedent’s employer, whoelected to run a power cable near the gas tank. The truck accidently overturned and caughtfire, killing decedent. Appellants sued International Harvester, arguing it should have warned the employer, Luer, about the danger of running a powerline neara fuel tank. The appellate court disagreed: “A sophisticated organization like Luer doesnot haveto be told that gasoline is volatile and that sparks from an electrical connection orfriction can cause ignition.” (Id. at 866.) The “absence of a warning to Luer did not substantially or unreasonably increase any danger that may have existed in using the International unit [citations omitted] and Luer’s failure to guard against those eventualities did not render the International unit defective.” (Id. at 866-67.) Thus, the knowledge of the intermediary, the employer, foreclosed anyliability of the manufacturer to the ultimate user. Johnson also cites with approvalto casesin otherjurisdictions addressing situations involving intermediaries. In Akin, supra, 156 F.3d 1030, the court held there was “no duty to warn a purchaser as sophisticated as the United States Air Force of the potential dangers of low-level chemical exposure;” and even though the Air Force may not 14 haveactually knownof hazards, “[b]ecause of the wealth of research available, the ability of the Air Force to conductstudies, and its extremely knowledgeable staff” it was a “knowledgeable purchaser”that “should have knowntherisks involved with low-level chemical exposure.” (Id. at 1037-1038; see also, In re Air Crash Disaster, 86 F.3d 498, 522 (6Cir. 1996) [manufacturer could use sophisticated user defense againstairline’s failure to warn claim].) Other California cases reach a similar result. (Zambrana v. Standard Oil Co. (1972) 26 Cal.App.3d 209, 218 [defendantinstalled stem extension on tire; danger obvious and defendant-installer notstrictly liable]; Wiler v. Firestone Fire & Rubber Co. (1979) 95 Cal.App.3d 621, 629-630 [tire manufacturer could reasonably believe that a valve stem manufacturer and installer would take appropriate steps to insure proper design and installation of valve stem]; Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362 [manufacturernotstrictly liable for patient’s death from infection after doctor’s implant procedure , despite lack of warnings, because a manufacturer need not “warn of a risk which is readily known and apparentto the consumer,in this case the physician’].) Still other California cases also support recognition of the sophisticated intermediary or sophisticated purchaser defense when the intermediaryis knowledgeable. (See, e.g., Groll, supra, 148 Cal.App.3d at 448-49; Walker, supra, 19 Cal.App.3d at 674; Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 989; cf., Garza v. Asbestos Corp., Ltd. (2008) 161 Cal.App.4th 651, 662,in whichthe court held an asbestos supplier liable to the ultimate userof a product whenthere wasno evidence the intermediary manufacturerof the product was warnedor wasawareof the dangers of asbestos. The implication is that those facts would changetheresult.) 15 Several federal courts have applied Johnson as supporting both the sophisticated user and sophisticated purchaser defenses. In Hays v. A.W. Chesterton, Inc., 2012 WL 3096621 (E.D. Pa., May 1, 2012, MDL 875) the federal court interpreted Johnson as adopting the sophisticated user defense “even in cases involving an intermediary.” In Gottschall v. General Elec. Co. (E.D. Pa., Dec. 9, 2011, MDL 875) 2011 WL 6424986, the federal court applied Johnson in a suit alleging plaintiffs’ decedent was exposed to asbestos when working on Navyships built by defendant. Summary judgmentwasgranted on the sophisticated user doctrine since the un- contradicted evidence showed the Navy wasa sophisticated user and the court rejected arguments that decedent was not a sophisticated user, or that defendant wasreally arguing for a “sophisticated intermediary defense” that should beleft to the jury. (See also, Donlon v. AC andS, Inc., 2013 WL 1880820 (E.D.Pa., Mar. 26, 2013, MDL 875), and Aikins v. General Elec. Co., 2011 WL 6415117(E.D.Pa., Dec. 9, 2011, MDL 875).) Eventhe earliest federal asbestos appellate decision, Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), recognized the defense: In general, of course, a manufactureris not liable for miscarriages in the communication process that are not attributable to his failure to warn or the adequacyof the warning. This may occur, for example, where some intermediate party is notified of the danger, or discoversit for himself, and proceeds deliberately to ignore it and to pass on the product without a warning. (Id at 1091-92.) Numerousjurisdictions have recognized a sophisticated purchaser or sophisticated intermediary defense. (In re Asbestos Litigation 16 (Mergenthaler), 542 A.2d 1205, 1211 (Del. Super. 1986); Smith v. Walter C. Best, Inc., 927 F.2d 736, 741 (3d Cir. 1990); Forest v. E.I. DuPont de Nemours and Co., 791 F.Supp. 1460, 1465-1467 (D. Nev. 1992); Hoffman v. Houghton Chemical Corp., 434 Mass. 624, 631-634 (2001); Kennedy v. Mobay Corp., 84 Md.App.397, 413 (Md. Ct. Spec. App. 1990), aff'd, (1992) 325 Md. 385 [“the defense is not only logical but necessary”]; Goodbar v. Whitehead Bros., 591 F.Supp. 552, 556-557 (W.D.Va. 1984), aff'd sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir.1985); O’Neal v. Celanese Corp., 10 F.3d 249, 251-52 (4th Cir.1993); Davis v. Avondale Indus., 975 F.2d 169, 172 (5th Cir.1992); Apperson v. E.I. du Pont de Nemours & Co., 41 F.3d 1103, 1108 (7th Cir.1994).) The sophisticated user/purchaser defenseis also consistent with the Restatement Secondof Torts, section 388, which has been adopted as law in California. (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 64.) Comment k (“When warningof defects unnecessary”) explains that a supplier has a duty to give an adequate warning “if, but only if, he has no reason to expect that those for whose usethe chattel is supplied will discover its condition and realize the danger involved.” The comments to section 388 suggest a numberof factors to consider as to whethera seller mayrely upon an intermediary to warn downstream users. Chief among them are the sophistication of the intermediary, the intermediary’s duty to warn, andthefeasibility of the seller giving notice to the downstream users. Here, Johns-Manville was clearly sophisticated, Johns-Manville had a tort duty to warn, and there wasnopractical way for Special Electric to communicate with Johns-Manville’s customers or remote consumers. Johns-Manville actually knew therisks of asbestos in its pipes. Johns- Manville was not “looking to Special Electric to” give it warnings. (9 RT 2647:10-13.) As the trial court colorfully put it, warning Johns-Manville 17 would have been as superfluousas “taking coals to Newcastle” (18 RT 6618: 2-10) or “like telling the Pope about Catholicism” (18 RT 6618:11-12). Or as Justice Rothschild wrote, “It is not a tort to fail to tell someone something they already know.” (Dissent3.) The oft-quoted passage in Commentn to section 388 is applicable here: “Modernlife would be intolerable unless one were permitted to rely to a certain extent on others' doing what they normally do, particularly if it is their duty to do so.” The Court of Appeal’s expansion of the duty to warnto entities like Special Electric creates the exact intolerable environmentthe Restatement authors wisely rejected. The Court of Appealerred in ruling that Special Electric owed a legal duty to warn Johns-Manville of hazardsit already fully appreciated. 3. STEWART V. UNION CARBIDE DOES NOT APPLY AND ITS DICTUM IS INCORRECT The Court of Appealrelies on Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, which in dictum stated that “the sophisticated intermediary doctrine ... applies only if a manufacturer provided adequate warningsto the intermediary.” (Id. at 29.) This statementis not correct. In Stewart, Union Carbide Corp. mined and sold raw asbestos to manufacturers of asbestos-containing joint compound. Union Carbide argued thatit should have no duty to warn such manufacturer-purchasers becausethoseentities “knew or should have known (from public sources) of the dangers of asbestos.” (Ibid.) There was no evidence, however,of these manufacturers’ actual knowledge. Thus, Stewart presents the situation of a knowledgeable company seeking to absolveitself of the duty 18 to warn a purchaserregardless of the purchaser's actual knowledge — the polar opposite of the situation here. (18 RT 6619:14-6621:4.) In contrast, no presumptionis required here: Johns-Manville knew of the hazards and had in fact acquired its own knowledge — it needed no warning. Stewart also considered Union Carbide’s argumentas an prohibited extension of the bulk supplier/componentparts doctrine: “Asbestos suppliers have soughtthe protection of that rule, but it has not been afforded to them, because raw asbestosis a defective product. [Citation omitted.] Union Carbide does not address those cases with any specificity ....” (Ibid.) In contrast, Special Electric was never a “supplier” of raw asbestos; it was a broker acting for the supplier. Neither Stewart nor the bulk supplier cases concern the situation here, where the purchaseris already knowledgeable about the dangers of the raw material. Nor do we suggest that Johns-Manville’s knowledge should be imputed to customers or remote consumers like Webb. Moreover, contrary to the dictum in Stewart, numerous cases have permitted a sophisticated purchaser/ intermediary defense even when the supplier had not warnedthe purchaseror intermediary. (See, e.g., Fierro, supra, 127 Cal.App.3d at 866-867 [the chassis manufacturer wasafforded the defense without having warned the intermediary]; In re Asbestos, supra, 543 F.Supp 1151 [no requirement of warning the navy]; Akin, supra, 156 F.3d at 1037 [no need to warn a knowledgeable purchaserlike the Air Force about the dangers of low-level chemical exposure]; Strong, supra, 667 F.2d at 686-87 [pipe manufacturer had no duty to warn a natural gas utility, or the utility's employee, of well known gas line dangers].) The dictum in Stewart, that a supplier must always warn an intermediary/purchaserof a danger, cannot be reconciled with the obvious 19 danger/sophisticated user rule that a warning is unnecessary where the recipient of the warning already knowsthe danger. If “the user's knowledge of the dangersis the equivalent of prior notice” (Johnson, supra, 43 Cal. 4" at 65), then the knowledgeof an intermediary-purchaser likewise mustbe the equivalentof prior notice. The cases cited in Stewart do not address the sophisticated intermediary doctrine per se, and none suggests the intermediary had the required knowledge withoutbeing warned.’ | Norcan the dictum in Stewart be reconciled with the rationale for the sophisticated purchaser defense: “Because these sophisticated users are charged with knowingthe particular product's dangers, the failure to warn aboutthose dangersis not the legal cause of any harm that product may cause. (Owen, Products Liability Law (2005) 9.5, p. 599.) The rationale supporting the defenseis that ‘the failure to provide warnings aboutrisks already knownto a sophisticated purchaser usually is not a proximate cause of harm resulting from thoserisks suffered by the buyer’s employees or downstream purchasers.’” (Johnson, supra, 43 Cal. 4" at 65, emphasis added.) Stewart also contradicts this Court’s prior acknowledgementthat manufacturers are held to the standard of expertsin their fields and required to keep abreastof scientific advances regarding their products. (Carlin v. Superior Court (1996) 13 Cal.41104, 1113 n.3.) The manufacturer ” See Carmichael, supra, 17 Cal.App.3d at 989 (drug manufacturers may discharge duty to warn by informing physician); Persons v. Salomon North America, Inc. (1990) 217 Cal.App.3d 168, 170-72; Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 21 (“Warningsto distributors maybe sufficient if a manufacturer does not deal directly with the purchasersof its products.”) 20 cannotbe both an expert and yet need warnings from a supplierless knowledgeable thatitself, at the peril of liability to the supplier; the courts cannotsay that individuals such as Mr. Johnson are deemedto have knowledge of hazards because they are membersof a grouptrained with that knowledge, yet not treat manufacturers the same. Finally, Stewart did not address the additional issue present here — discussed extensively at IV.B.2 infra — as to the lack of opportunity or meansfor any warning to be given downstream users. Stewart does not apply here andits dictum, that a purchaseror intermediary must be warned bythe supplier before the defense can apply, is inapposite. B. A BROKER OR SUPPLIER TO A SOPHISTICATED MANUFACTURER SHOULD NOT HAVE A DUTY TO WARN END- USERS, WHEN THE MANUFACTURER ALREADY OWES A DUTY TO WARN AND THE SUPPLIER HAS NO REASONABLE MEANS OF COMMUNICATING A WARNING 1. JOHNS-MANVILLE OWED A TORT DUTY TO WARN CONSUMERS, A DUTY THAT THE LAW ALLOWSSPECIAL ELECTRIC TO PRESUME WOULD BE DISCHARGED “The generalrule is that every person hasa right to presumethat every other person will perform his duty and obeythe law,andin the absence of reasonable groundto think otherwiseit is not negligence to assumethathe is not exposed to danger which comes to him only from violation of law or duty by such other person.’ [Citation.]” (Harris v. Johnson (1916) 174 Cal. 55, 58; Celli v. Sports Car Club ofAmerica, Inc. (1972) 29 Cal.App.3d 511, 523; In re Air Crash, supra, 86 F.3d at 500 [applying BAJI 3.13 re reliance on another to perform their duty and holding sophisticated intermediary defense applies under California law].) 21 Special Electric had no reason to believe Johns-Manville would not warn downstream users of hazards with its various products. Indeed, the evidenceis to the contrary. Johns-Manville owned and operated asbestos mines and manufactured numerousasbestos-containing products; it was an expert in the field of asbestos. Special Electric knew Johns-Manville to be one of the biggest users of asbestos in the world, which had numerous suppliers and brokersfor the large volumes of asbestos Johns-Manville required. Special Electric also knew that Johns-Manville employed research and developmentpeople, who knew “all the characteristics of asbestos, even chemically-wise,” and even met with Special Electric to discuss with them various aspects of asbestos and how to improve matters. (9 RT 2645:19-2646:21.) Johns-Manville imposed warning requirements on the bags of raw asbestos shipped to its Long Beachfacility. There was every reason for Special Electric to think that Johns- Manville knew or would determine the hazardsassociated with the potential release of asbestos in its products and then would accordingly convey an adequate warning. (Stewart v. Cox (1961) 55 Cal.2d 857, 865; Tucker v. Lombardo (1956) 47 Cal.2d 457, 467-468; Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 342 [defendant could expect others to use reasonable care].) There is no basis on which to impose on Special Electric a duty to somehowpolice Johns-Manville’s operations or require Johns- Manville to dischargeits civil tort duties. (Adams v. Union Carbide Corp., 737, F.2d 1454, 1457 (6% Cir.1984) [supplier could reasonably rely on an employer/purchaser to pass on warnings because of duty to provide safe | workplace]; cf., In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 838 (6Cir. 1996) [no showing of reliance and any reliance would have been unjustified given Navy’s “single-minded focus on building 22 warships”].) The Court of Appeal’s holding eviscerates the presumption that every person will perform his duty by requiring Special Electric to have provenits actual expectation and reliance on Johns-Manville. (Dissent 4- 5.) Thatflips the presumption on its head. Commerce would be impossible withoutthe ability to rely on others to do what they normally do and have a duty to do. (Restatement Second Torts §388, com. n, 308; Persons, supra, Cal.App.3d at 178). The Court of Appeal majority attempts to rebut the presumption by pointing out that Special Electric wasitself knowledgeable, may have attempted to market the crocidolite as safer,and that Johns-Manville was “evil.” (Op. 25-26.) Special Electric’s knowledgeof the hazardous nature of asbestos reinforces the presumption that Johns-Manville would issue warnings. The alleged marketing of crocidolite as “safer” is irrelevant becausethere is no evidence that the one salesman involved ever spoke to anyone at Johns-Manville; indeed, he left the companybeforesales to Johns-Manville began andthere is no evidence that Johns-Manville was ever awareof or influenced by any such pitch. (6 RT 1677:5-7, 1689:20-25, 1692:22-24.) Nor would Johns-Manville’s duty to warn have changed based onthe typeof asbestos it put in its Transite pipe. The characterization of Johns-Manville as “evil” was the opinion of a former Johns-Manville employee looking back decadeslater, and not from Special Electric. Special Electric’s supposed lack of concern about warningsis belied by the very 1975 correspondence from its president to which the majority refers, and, in any event, is the point of having a presumption. In Johnson, this Court applied the sophisticated user rule based on an objective standard — whetherthe user knew or should have knownofthe 23 risk, harm, or danger — because “[i]t would be nearly impossible for a manufacturer to predict or determine whether a given user or member of the sophisticated group actually has knowledge of the dangers because of the infinite numberof user idiosyncrasies.” (Johnson, supra, 43 Cal.4th at 71.) The sameis true here. The question is whether Johns-Manville was a sophisticated user/purchaser/intermediary. It does not matter whether Special Electric verified this fact any more than it mattered whether American Standard verified that Mr. Johnson was a trained HVAC technician. What matters is Johns-Manville was, or should have been, a sophisticated manufacturer/purchaser, just as Mr. Johnson was a sophisticated user.® Johns-Manville was extremely knowledgeable about the hazardsof asbestos and there was noreasonfor Special Electric to suspect that in researching, developing and manufacturing its products, Johns-Manville would not assess them to determine the properset of cautions and warnings that should accompany them. Special Electric was entitled to rely on Johns-Manville to warn. ’ Some courts have required that the supplier know in advancethatits purchaser was knowledgeable and “may notescapeliability by reconstructing the past to show merely what the employer/purchaser knew.”(Willis, supra, 905 F.2d at 797.) However, this requirementis unnecessaryif in fact the purchaser is knowledgeable because causationis still cut off; butif it is necessary there was evidence that Special Electric was contemporaneously aware of Johns-Manville’s sophistication. (9 RT 2645:19-2646:21.) 24 2. SPECIAL ELECTRIC HAD NO MEANS TO WARN WEBB, AND EVEN PLAINTIFFS DID NOT ASSERT THAT AS A BASIS OF LIABILITY The Court of Appeal implicitly recognized the impracticality of imposing a separate duty on Special Electric to warn Mr. Webb personally, but brushedaside those concerns by pointing out that “whether reasonable efforts to warn downstream users could have been undertaken” were questions of fact on which Special Electric “apparently failed to persuade the jury.” (Op. 17.) The Court of Appeal is wrong for several reasons. Special Electric was one of multiple brokers for suppliers of asbestos to Johns-Manville. There was nopractical way for Special Electric to know whether the asbestos it had brokered was in the products with which Webb cameinto contact. This was exquisitely true when it cameto the Transite vent pipe Webb encountered. The Johns-Manville formula for Transite vent pipe did not call for the use of crocidolite asbestos — the only type of fiber Special Electric brokered. That fiber type found its way into the Transite vent pipe in minute quantities because during the manufacturing process Johns-Manville’s employees recycled some scraps by blending them into the Transite vent pipe, including scraps with crocidolite. Under these circumstances, how could Special Electric have traced any particular crocidolite asbestos into the Transite pipe in general or into particular batches sold to Familian and later bought by Pyramid? There is no evidence suggesting Special Electric could know crocidolite asbestos wasused in Transite pipe, or who Johns-Manville’s customers were (especially remote ones like Webb), no less which products they bought and whetherasbestos it brokered was in them. The majority held Special Electric/Special Electric liable on a theory not even advanced by 25 Plaintiffs. Commentn to the Restatementof Torts section 388 suggests that in situations where the material being supplied is highly dangerous and posinga risk of serious harm, a supplier should communicate a warning to the end user evenif the intermediary can be trusted to do soas well; | however, the authors recognized that their suggestion applies only where a warning would bepractical: Manysucharticles can be madeto carry their own messageto the understanding of those whoarelikely to use them by the form in which they are put out, by the container in which they are supplied, or by label or other device, indicating with a substantial sufficiency their dangerous character. Where the danger involved in the ignorant use of their true quality is great and such meansofdisclosure are practicable and not unduly burdensome, it may well be that the supplier should be required to adopt them.[...] Whena manufacturer or distributor has no effective way to convey a product warning to the ultimate consumer, the manufacturer should be permitted to rely on downstream suppliers to provide the warning. (Rest.2d Torts, § 388, com. n, 308; emphasis added.) Under the holding of the Court of Appeal, however, a broker or ° Moreover, there is no duty to warn where the productis not being putto its intended use. (Sanchez v. Hitachi Koki, Co., Ltd. (2013) 217 Cal.App.4* 948, 957 [no duty to warn of risk of saw blades in grinder for which they were not intended.].) Asbestos brokered by Special Electric was never intended for use in Transite pipe. “[A] product manufacturer participates substantially in creating a harmful combineduseonlyif it specifically designsits product for the combined use.”], citing O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 362.) Thus, there was no duty to warn Transite pipe users. 26 supplier will have a duty to assess potential hazards of components or ingredients in every product made by manufacturers, and thenlocate, track and communicate with every knownuserof those products the potential hazards. One cannot imagine a more unrealistic or onerouslegal duty. . | Numerouscourts have declined to impose a warning duty ona supplier when such a duty would be onerous, impractical or infeasible. In Persons, supra, 217 Cal.App.3d at 178, the court held a ski binding manufacturer had no duty to warn ultimate users of possible dangers with the product, and could rely on theski rental company to whom the bindings were sold, to provide necessary warnings. (Cf. Willis, supra, 905 F.2d at 797 [manufacturer never contended warnings on its products would have been unduly burdensome].) In Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, the Court, quoting a commentin the proposed Restatement(Third) of Torts, explained: “To impose a duty to warn would require the seller to develop expertise regarding a multitude of different end-products and to investigate the actual use of raw materials by manufacturers over whom the supplier has no control. Courts uniformly refuse to impose such an onerous duty to warn.” (Artiglio, supra, 61 Cal.App.4th at 839.) 1° 10 Artiglio concerned a non-defective component. California, however, has held that raw asbestosis a defective product (Arena v. Owens Corning Fiberglas Corp. (1998) 63 Cal.App.4" 1178, 1190), even whenincorporated into a finished product. (Jenkins v. T&N PLC (1996) 45 Cal.App.4® 1224, 1231.) Jenkins and Arena focused on whethera design defect theory could apply to a raw asbestos supplier; they did not address whether any intermediaries were sophisticated. They are also inapposite because the jury foundin favorof Special Electric on Plaintiffs’ design defect theory. 27 Likewise, in Walker v. Stauffer Chemical Corp. (1971) 19 Cal.App.3d 669, the Court of Appeal affirmed summary judgmentfor a sulfuric acid supplier on the consumer's strict-liability claim: Wedonotbelieveit realistically feasible . . . to require the manufacturer and supplier of a standard chemical ingredient such as bulk sulfuric acid, not having control over the subsequent compounding, packaging or marketing of an item eventually causing injury to the ultimate consumer, to bear the responsibility for that injury. The manufacturer(seller) of the product causing the injury is so situated as to afford the necessary protection. (Walker, supra, 19 Cal.App.3d at 674; accord: Torres, supra, 49 Cal.App.4th at 21 [warningsto distributors may be sufficient if a manufacturer does not deal directly with the purchasersof its products].) In Groll, supra, at 448-49, the court affirmed a nonsuit on a warning defect claim against a bulk supplier of BT-67 whose product was repackaged by the manufacturer: Cases which have imposed a duty on the manufacturer to warn the ultimate consumerhavetypically involved tangible items that could be labeled, or sent into the chain of commerce with the manufacturer's instructions [citations omitted]... . [[] Since respondent manufactured and sold BT-67 in bulk, its responsibility must be absolved at such time as it provides adequate warningsto the distributor who subsequently packages, labels and markets the product. To hold otherwise, would impose an onerous burden on the bulk sales manufacturer to inspect the subsequentlabeling of the packaged product. In Blackwell v. Phelps Dodge Corp. (1984) 157 Cal.App.3d 372, 379, a supplier of sulfuric acid whofilled a tank car had no duty to warn persons unloading the car about proper venting in order to prevent pressure build up which caused the acid to spray the plaintiff. The supplier had no 28 authority to place warningsor instructions on the tank car and therefore, as a matter of law, could not be liable for having failed to provide such warnings andinstructions. (See also, Stevens v. Cessna Aircraft Co. (1981) 115 Cal.App.3d 431, 433-434 [aircraft manufacturer notliable for failing to post a warning inside the passenger compartmentas to the total load capacity, since pilot responsible for that determination which depended on manyfactors beyondability of a passengerto assess] cf., Adkins v. GAF, 923 F.2d 1225 (6Cir. 1991) [defense not available dueto failure by supplier to warnplusfact it was not precluded by the packaging from directly warning purchaser’s employees].) Plaintiffs themselves have never contendedSpecial Electric had a duty to directly warn William Webb. (Dissent 3; see also Answerto Petition for Review 13-14.) To evade the practical problemsof imposing on a broker a duty to warn ultimate consumers, Plaintiffs argue that brokers and suppliers should have a duty to contractually compel manufacturers such as Johns-Manville to warn consumers. No evidence or law supports that suggestion. The trial courtrejected it as defying commonsense: “It’s a pretty big regulatory compliance program fora fiber broker to undertake. I think it would have been sucha startlingly and apparently irrational way to do businessin the ‘70’s, that it would have comeas a genuine surprise to everybodyinvolved ....” (18 RT 6934:17- 23.) There was no evidence Special Electric, a small brokerage company, had sufficient bargaining power to compel Johns-Manville, an international behemoth, to submit to a warning program dictated by a brokerlike Special Electric. No contractual requirement would have been enforceable. (Groll, supra, 148 Cal.App.3d at 449 [“manufacturer would have severe enforcement problemsif the bulk product purchaserfailed to 29 adhere to the recommended warnings”]; cf, McConnell v. Union Carbide Corp., 937 So.2d 148 (Fla. 4 DCA 2006) [“almost no burden” on supplier to contractually require manufacturer-purchasers to label end products with asbestos warning].) The Courtof Appealsidesteppedall these practical issues and foregoing legal authority by ruling that the jury should decide the scope of that duty. (Op. 17-18.) That holding abdicates the role of the court to the jury. Thetrial court properly decidesthe issue of duty, a question of law. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154, 1158-59; Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464-465.) The Court of Appeal erroneously relied on the jury to makethat decision (see Nalwa, supra, 55 Cal.4th at 1158-59), which unreasonably expands a supplier’s duty to warn to downstream users whom they can neither identify nor reach. Under the circumstances of this case, where there was a sophisticated purchaser with a duty to warn downstream users, and no ability of Special Electric to warn those downstream users, Special Electric had no duty to warn. Cc. THERE IS NO CAUSAL CONNECTION BETWEEN WEBB’S INJURIES AND ANY LACK OF WARNINGFROM SPECIAL ELECTRIC There must be a causal connection betweena failure to warn and a plaintiff's injuries. Here there is none. The absence of warnings from Special Electric, if any, did not increase the danger to Webb,or affect any warnings required of Johns-Manville. Any warnings to Johns-Manville would have made no difference and were not a proximateor legal cause of injury to Webb because there was nothing Special Electric could tell Johns- Manville about asbestos the latter did not already know. “Sophisticated 30 users are charged with knowingthe dangers,so that the ‘failure to warn about those dangersis not the legal cause of any harm that product may cause.’” (Johnson v. Honeywell Intern. Inc. (2009) 179 Cal.App.4th 549, 558.) A warningis effective and requiredif it changes someone’s behavior; but if the person already appreciates the danger, harm from the danger comingto pass is not causedbythe lack of a warning. “The rationale supporting the [obvious danger] defenseis that‘the failure to provide warnings aboutrisks already knownto a sophisticated purchaser usually is not a proximate cause of harm resulting from those risks suffered by the buyer’s employees or downstream purchasers.’” (Johnson, supra, 43 Cal.4th 56, 65 [emphasis added]; see also Fierro, supra, 127 Cal.App.3d at 866.) The lack of causal connection stemming from an obvious danger justifies absolving a manufacturerof its duty to warn.“If, despite deficient warnings by the manufacturer, a useris fully aware of the danger which a warning wouldalert him orherof, then the lack of warningis not the proximate cause of the injury.” (Strong, supra, 667 F.2d at 688, citing Nelson v. Brunswick Corp., 503 F.2d 376, 379 (9th Cir. 1974).) In Stultz v. Benson Lumber Co. (1936) 6 Cal.2d 688, the seller of a defective plank wasnotliable for injuries to the buyers' employee because the defective condition was knownto the buyers, and the buyers’ negligence in nonetheless using the defective plank broke the chain of causation. This Court later explained why the buyer’s negligence in Stultz was not foreseeable. “[T]here the person whose conduct washeld to be a superseding cause wasfully aware of the danger involved, and negligent conduct with full realization of the danger may properly be considered highly extraordinary.” (Stewart v. Cox, supra, 55 Cal.2d at 865.) 31 Here, too, it would be “highly extraordinary” for Johns-Manville not to warn downstream users of the known hazardsof asbestos. (See also Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1467 [“use of the article, knowing the danger posedbyits defective condition, is an intervening cause of the plaintiff's injury.”].) Noneof the facts cited by the Court of Appeal as supposed breaches by Special Electric of the duty to warn or other negligence had any causal relationship to Webb’s injuries.!! D. BECAUSE THE POLICY REASONS FOR STRICT PRODUCTS LIABILITY ARE INAPPLICABLE UNDER THE FACTS HERE, SPECIAL ELECTRIC, AS A BROKER, SHOULD NOT HAVE BEEN SUBJECT TO STRICT LIABILITY Special Electric timely moved for directed verdict on the ground that as a brokerit had no legal duty to warn. Thetrial court granted that motion. The Court of Appeal failed to addressthis issue, even after the omission waspointedoutin the Petition for Rehearing at pages 7-8. Special Electric acted as a broker, merely facilitating the sale of the crocidolite; it never owned or even possessed the asbestos sold to Johns- Manville, never controlled or influenced any manufacturing, and was not involvedin the sale or distribution of any product. Johns-Manville itself thought of Special Electric as a “broker.” (9 RT 2586:9-12, 2592:17-2593:2, The Webbsdid notassert the risk-benefit test for design defect, a test that one court has held is an exception to the sophisticated user defense. (Johnson v. Honeywell, supra, 179 Cal.App.4" at 558-559.) Rather, the Webbs asserted the more commonly used consumerexpectationstest, which the jury’s verdict expressly rejected. 32 2595:2-14; 2638:19-2639:2.) Special Electric was no more in the chain of distribution than any other service provider, such as the ship that carried the asbestos from South Africa or the truck that drove the bags from the dock to Long Beach(both of whom hadactual possession of the asbestos). Strict productsliability “is not limitless” and will not be imposed in the absenceof the policy reasons underlyingit, “even if the defendant could be technically viewedasa ‘link in the chain’ in getting the product to the consumer market.” (Bay Summit Community Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, 774; see also Peterson v. Superior Court (1995) 10 Cal.4th 1185 [landlords and hotels are notstrictly liable for product defects becausethe policy justifications are inapplicable]; Tauber-Arons Auctioneers Co. v. Superior Court (1980) 101 Cal.App.3d 268, 281-282 [secondhand dealer notstrictly liable for a defective used product].) The rationale for applying strict productsliability principles was discussed in Taylor, supra, 171 Cal.App.4" 564. California's “rules of productsliability ‘focus responsibility for defects, whether negligently or non-negligently caused, on the manufacturer of the completed product.’” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478-479, quoting Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 261.) “It is the defendant's participatory connection, for his personal profit or other benefit, with the injury-producing product and with the enterprise that created consumer demandfor and reliance upon the product... with the manufacturer or other entities involved in the manufacturing-market system [ ] which calls for imposition of strict liability.” (Taylor, supra, 171 Cal.App.4"at 576.) Strict liability should not be imposed on an entity “that is not a part of the manufacturing or marketing enterprise of the allegedly defective productthat caused the injury in question.” (Peterson, supra, 10 Cal.4*at 33 1188.) “Entities ‘outside the original chain of distribution’ of the allegedly defective productare notto be heldstrictly liable for defects because imposing liability on them would serve noneof the policies that justify the doctrine.” (Taylor, supra, 17 Cal.App.4"at 577, citing Peterson, supra, 10 Cal.4t at 1199, 1201-1201.) . Asexplained in Bay Summit, supra, strict liability may be imposedif the plaintiff's evidence establishes “(1) the defendantreceived a direct financial benefit from its activities and from thesale of the product; (2) the defendant's role was integral to the business enterprise such that the defendant's conduct was a necessary factor in bringing the product to the initial consumer market; and (3) the defendant had control over, ora substantial ability to influence, the manufacturing or distribution process.” (Bay Summit, supra, 51 Cal.App.4th at 776.) “It is plaintiff's burden to produce evidence of these factors linking the injury-producing product with a particular entity in the stream of commerce of that product.” (Taylor, supra, 17 Cal.App.4® at 576.) No California appellate court has ever imposedstrictliability principles on a broker. In an analogouscase, Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1538, a finance lessor was held notstrictly liable because it was in no position to exert pressure on the manufacturer to enhance the safety of the machine. Even though the lessor’s financing role wascritical, imposingstrict liability would not further the policy considerationsforstrict liability. (Id.) Likewise, those merely providing a service are not subjectto strict liability. (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 258 [recreational rafting company notstrictly liable for condition ofraft, as that wasincidental to provision of a service]; Murphy v. E. R. Squibb & Sons, Inc. 34 (1985) 40 Cal.3d 672, 677 [pharmacy’s dominantrole is to provide a service]; Pena v. Sita World Travel (1978) 88 Cal. App. 3d 642, 644 [travel agent notstrictly liable for injury suffered by plaintiff on travel bus]; Haynes v. National R.R. Passenger Corp., 423 F.Supp.2d 1073, 1085 (C.D. Cal. 2006) [Amtrak notstrictly liable for the configuration of the seats incidental to providing transportation services].) Oscar Mayer Corp. v. Mincing Trading Corp., 744 F.Supp. 79 (D.N.J. 1990) is instructive. There, the court held a broker of a food product was not within the “chain of distribution”as it could not “recapture the expense of an occasional defective product by an increasein the cost of the product” and was not “in a position to exert pressure to ensure the safety of the product.” (Id. at 84-85) Other cases reach the sameresult wherethe broker never owns, controls or possesses the product. (Lyons v. Premo Pharmaceutical Labs, Inc., 170 N.J.Super. 183, 406 A.2d 185, 196- 197 (App.Div.1979), cert. denied, 82 N.J. 267, 412 A.2d 774 [“broker” could notbestrictly liable because, though “in a sense, in the chain of distribution,” it did not exercise control over the product and was a mere facilitator who arrangedthe sale, having never had physical control of the product].) In Pennsylvania, a broker that sold a defective press to the injured worker's employer had no control or involvementin its manufacture or design, made norepresentationas to its quality or soundness, never had physical possessionof it, and therefore could not bestrictly liable. (Balczon v. Machinery Wholesalers Corp., 993 F. Supp. 900, 905 (W.D.Pa. 1998) ; see also, Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 375 (Pa.1989) [auctioneers are agents for a seller for a specific purposeandbearnorelationship to the manufacturersufficient to imposestrict liability].) 35 A customsbroker that merely received invoices, prepared documentsfor the purchase of vehicles, but never took control or ownership of them, and neversold, marketed, promotedor distributed the vehicles, was not subject to productsliability for injuries caused by the vehicles. (Ames v. Ford Motor Co., 299 F. Supp. 2d 678 (S.D. Tex. 2003).) The court analogized to a finance lessor, which, just like in California, is not subjectto strict liability. AnIllinois District Court also applied the financial lessor rationale to a broker, rejecting strict liability. The broker “had no inputinto the production or marketing of the rig,” was described as “a paper shuffler,” and had “neverbeen involved with or exercised control over the design or manufacture of any Cottrell vehicle transport trailers.” (Massey v. Cassens & Sons, Inc., 2007 WL 2710490, p. 4-5 (S.D. Ill., Sept. 13, 2007, 05-CV-598- DRH).) The reasoning of these courts applies here. Special Electric provided a service — brokering the sale of a component material. Special Electric never owned the asbestos and never took possession of it. Unlike the mining company, Special Electric did not place the asbestos into the stream of commerce. Special Electric played norole in bringing the vent pipe to market and wasin no position to exert pressure on Johns-Manville or its operations. Special Electric did not finance anypartof the transaction and its money wasnot used, unlike the finance lessor’s moneyin Arriaga. There was no continuing relationship between Special Electric and others in the chain of distribution so as to adjust the costs of protection among them. As the provider of a brokerage service, Special Electric should not be subject to strict liability. 36 E. A GENERAL NEGLIGENCE CLAIM CANNOTBE SUSTAINED MERELY ON ALLEGATIONS, INSTEAD OF THE FACTS ESTABLISHED AT TRIAL The Court of Appeal held that the JNOV wasnotjustified because the jury also found general negligence, which the pre-verdict motions purportedly did not reach. It concluded that negligence other than failure to warn was foundby the jury because of arguments to the jury and the jury instructions. (Op. 29-32.) However, allegations, arguments and instructions are not evidence. Indeed,at trial Plaintiffs did not assert negligence on any basis unrelated to failure to warn (see 16 RT 4703:24- 4704:11), even after Special Electric’s trial counsel pointed this out in closing argument. (16 RT 4718:20-4719:1.) The Court of Appealasserts the jury could find negligence because Special Electric sold a type of asbestos type that wasparticularly dangerous. It is not negligent, however, to sell a dangerous product. (Walker, supra, 19 Cal.App.3d at 674 [“The mere fact that bulk sulfuric acid is potentially dangerousis no reason to render Stauffer liable to plaintiff in the instant case.”].) The Court of Appealalso cites Special Electric’s supposed marketing of crocidolite as safer. However, as noted above, the only evidence of such a “selling pitch” was from a person wholeft the company in 1973, before any asbestos wassold to Johns-Manville, and who never dealt with Johns- Manville. (6 RT 1677:5-7, 1689:20-25, 1692:22-24.) There is no evidence of any such pitch to Johns-Manville, which regardless owed a duty to warn about the asbestos in Transite pipe (which included predominately chrysotile) regardless of whetherit contained trace amounts of crocidolite. The law required the same warning regardless of the type of asbestos 37 used.!2 Thus, there is no nexus between any such supposedsales pitch and Johns-Manville’s warnings or Webb’sinjuries. The alleged negligence has to be causally related to support a negligence verdict. Further, marketing a product as safer would constitute a negligent failure to warn. (Johnson v. Honeywell, supra, 179 Cal.App.4" at 556-557 [plaintiff’s expanded theory of negligence to include deficient MSDSsheets wasa variant of negligent failure to warn, which the sophisticated user defense defeated].) The Court of Appealalso asserts as negligence that the company’s name changed from “Special Asbestos” to “Special Electric,” “inferably in orderto distance itself from what consumers were coming to learn was a dangerous product.” (Op.31, as modified.) Initially, as the Courtof Appeal was advised, the entire premise is wrong since the name wasnever changed to “Special Electric”, but rather to “Special Materials.” (Petition for Rehearing at p. 9.) (6 RT 1673:21-1674:1, 1759:8-10, 1760:16-18.) Further, the Court of Appeal’s inference is from whole cloth. The court took a completely neutral fact and ascribed a motive toit that is not based on anything in the record. Even jury’s finding must be based on substantial evidence that “clearly implies that such evidence mustbe of ponderable legal significance.” (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336). Here, there is only the Court of Appeal’s speculation. Moreover, there is no suggestion whatsoeverthe name change wascasually related to Webb’sinjuries. 12 Special Electric asserted that the language of the asbestos warning on the polywoven bags was mandated by OSHA,andthat federal preemption precluded a finding that the warning wasinadequate. (Respondent'sBrief at 19-22.) The Court of Appeal did not addressthis issue. 38 The dissent had no problem understanding Special Electric’s arguments as to whythe negligence verdict was based only onfailure to warn, whichbelies the majority’s holding that Special Electric failed to explain awaythe cited evidence or provide cogent legal argument. (Compare Op.pp. 31-32 with Dissent pp. 11-12.) The only evidence and argumenton negligence wasonfailure to warn. Thus, the Court of Appeal erred in holding that Special Electric’s motions did not resolve the general negligence claim. F, TRIAL COURTS HAVE DISCRETION AS TO WHEN TO RULE ON MOTIONS FOR NONSUIT AND DIRECTED VERDICT, AND TECHNICAL TIMING ERRORS SHOULD NOT LEAD TO REVERSAL ABSENT UNDUEPREJUDICE 1. THE COURT OF APPEAL WRONGLY ASSESSED THE MOTIONS FOR NONSUIT AND DIRECTED VERDICT BY THE PROCEDURES APPLICABLE TO A MOTION FORJNOV The Court of Appeal ruled that once a verdict is rendered the limitations on a court’s powerto enter a contrary judgmentis controlled by the procedures for a motion for JNOV,even if the motion actually addressed is a motion for nonsuit or directed verdict. (Op. 15.) Plaintiffs did not advocate this position. Justice Rothschild states, “The majority cites no legal precedent for that proposition, and I am aware of none.” (Dissent 10.) There is no requirement that courts rule on nonsuit motionsat the time they are made. (King v. Hercules Powder Co. (1918) 39 Cal.App.223, 224 [nonsuit ruling madeafter all evidence wasin].) And it was not the trial court’s intent by deferring consideration of the motions to deprive the 39 parties of proceduralrights (“the defense has been most circumspectin preserving their rights” [11 RT 3001:16-17]; and the defense lawyers “were vigilant and diligent.” [18 RT 6602:21-22].) This ruling defies commonsenseandthreatens to lengthen jury trials. The trial court deferred ruling to avoid that result. (18 RT 6602:7- 22.) It pushed through the evidence and did not wantto stop thetrialto brief and argue the motions. This is commonintrials. Longtrials are a burden on jurors. Requiring the motionsbe ruled on before a verdictis rendered meansat some pointthe trial will have to be halted so the motions can be addressed. Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 328, demonstrates the error of the Court of Appeal here in applying more restrictive procedural requirements on delayed nonsuit and directed verdict motions: If the powerto grant judgment notwithstanding the verdictis not coextensive with the powerto grant a directed verdict, then trial courts will be compelled to dispose of issues on motion for directed verdict out of fear of losing the authority to enter an appropriate disposition at a later time. Such a result serves neither the policy in favor of expeditious and efficient resolution of issues nor the clearly expressed legislative intent that the authority on a motion for judgment notwithstanding the verdict be coextensive with the powerto direct a verdict. AsBeavers states, the JNOV statute requires that JNOV be granted “whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Id. at 328-29.) Here prior motions for directed verdict and nonsuit were made and 40 procedurally should have been granted. The Court of Appeal has created inconsistency in the procedures where the Legislature has mandated consistency. Plaintiffs never objected to deferring the rulings; they wanted more time to brief the issues and agreed to a schedulefor filing briefs after the jury verdict. (18 RT 6602:23-28; see also 11 RT 3003:28-3304:3, 3005:26-27; see 1 AA 151,175.) Plaintiffs should have raised any concerns with the trial court then, not in arguments after the verdict or on appeal. (John Norton Farms, Inc. v. Todagco (1981) 124 Cal.App.3d 149, 161 [failure to requestright to reopen waivesthis right].) If the Court of Appeal correctly ruled the trial court's deferral of timely filed pre-verdict motions deprived Special Electric of the benefit of those motions, then the result should have been a reversal that would allow Special Electric to make post-judgment motions. Special Electric never declined to file a JNOV motion; to the contrary, it said it likely would file such a motion if judgment against it were entered. (18 RT 6302:2-13.) Since judgmentagainst it was never entered, it did not have the opportunity to file a JNOV motion. Therefore, if the procedure followed by the trial court was impermissible, the matter should be returnedto the trial court to allow Special Electric the opportunity to file a JNOV motion. 2. THE COURT OF APPEAL ERRONEOUSLY TREATED THE MOTION FORJNOV As HAVING BEEN MADE SUA SPONTE The Court of Appeal majority treated the JNOV as having been entered onthetrial court’s own motion, when,in fact, the trial court deemed Special Electric’s motions to be a motion for JNOV. (2 App.at 383, 401.1.) 4] Thetrial court was within its discretion to deem the motionsa JNOV. A motion for JNOV maybe granted “whenever a motion for directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Code of Civ. Proc. §629.) It functions the same as a motion fornonsuitor directed verdict and is based on the same principles as a nonsuit or directed verdict. (Beavers, supra, 225 Cal.App.3d at 327.) The court’s power to grant JNOVis coextensive with the powerto grant a directed verdict. (Id. at 328.) Motions for nonsuit, directed verdict, and JNOVall challenge the legal sufficiency of the evidence, and thus may be treated interchangeably. (Wilson v. County of Los Angeles (1971) 21 Cal.App.3d 308, 312-13, disapproved on other grounds by Cervantez v.J. C. Penney Co. (1979) 24 Cal.3d 579 [motion under CCP §631.8 treated as motion for nonsuit]; Herrill v. Rugg (1931) 114 Cal.App. 492, 495-96 [motion for directed verdict treated as motion for nonsuit]; Shell Oil Co. v. Harrison, 425 So.2d 67, 69-70 (Fla. Ist DCA 1982), [directed verdict appropriate based on sophisticated purchaser defense].) 3. THE COURT OF APPEAL IMPOSED ERRONEOUS PROCEDURAL REQUIREMENTS ON A SUA SPONTE MOTION Treating the JNOV motion as if made sua sponte, the Court of Appeal required it be made onfive days written notice specifying the grounds. (Op. 13-14.) Since section 629 contains no requirement for a written notice or specification of grounds, the Court applied section 1005(a)(13). Thereis no authority imposing written notice requirements on sua sponte motions. Moreover, Section 1005(a)(13) expressly applies only if “no other time or methodis prescribed by law or by court or judge.” Thus, it was within the judge’s authority to use a different method. 42 The court cites Sanchez-Corea v. Bank ofAmerica (1985) 38 Cal.3d 892, 903, quoting La Mannav. Stewart (1976) 13 Cal.3d 413, 418, as supporting authority requiring written specification of grounds. But thosecases dealt with newtrial motions where the applicable code section expressly requires orders to specify the reasons. No such requirementis found in section 629 regarding sua sponte motions. (See Sturgeon v. Leavitt (1979) 94 Cal.App.3d 957, 961 [sua sponte JNOVaffirmed based simply on notice of intent to grant it without specification of grounds].) In any event, Special Electric’s motions werein writing, specified the grounds, and were served morethanfive days before the ruling. 4, THE TRIAL COURT HAD THE POWER TO GRANT A MOTIONForJNOVPRIOR TO EXPIRATION OF THE TIME TO FILE A MOTION FOR NEW TRIAL The Court of Appeal held the trial court’s ruling was “impermissibly premature,” and the court was not yet “empowered”to rule, because the time to movefor a newtrial had not expired. (Op. 12-13.) Section 629 distinguishes between whata court has no powerto do and whatit is not supposed to do. The veryfirst sentence mandates the court “shall render judgment” “before the expiration of its powerto rule on a motion for newtrial.” There is no limitation on whenthat “power” starts. Later, the section expressly removes the “powerof the court” to rule on a JNOV motion after expiration of the time to rule on a newtrial motion. While the statute states a court shall not rule on a JNOV motion prior to expiration of the time for making a newtrial motion, it does not 13 Well before the court ruled, the issue of treating the motions as a JNOV motion wasraised by Plaintiffs (1 App. at 177:7-12) and defendant (2 App. at 328:23-329:11). 43 remove the powerof the court to do so. (See Dissent 9.) When onepartof a statute contains a term or provision, the omission of that term or provision from anotherpartof the statute indicates the Legislature intended to convey a different meaning. (People v. Gardeley (1996) 14 Cal.4th 605, 621-22). A court may notrewrite a statute, either by inserting or omitting language, to make it conform to an intent that is not expressed. (Cornette v. Dept. of Transportation (2001) 26 Cal. 463, 73-74). The Court of Appeal has donesoin its opinion."4 Indeed, the purpose of synchronizing the motion for JNOV with the newtrial procedures was to permit an aggrieved party to move for JNOV withoutforfeiting the right to a new trial (Espinoza v. Rossini (1966) 247 Cal.App.2d 40, 45-46), which is not the issue here. Thetrial court had jurisdiction to grant a JNOV. “[T]here was substantial compliance with section 629.” (Espinoza, supra, 247 Cal.App.2d at 46.) Ifit ruled prematurely, the error was technical and not prejudicial. 5. A SHOWING OF UNDUEPREJUDICE IS REQUIRED FOR REVERSAL Reversal on procedural grounds requires prejudicial error. The Constitution allows reversalonly if an examinationof the entire cause showsthere has been a “miscarriage ofjustice.” (Cal. Const. Art. VI, §13.) Code of Civil Procedure section 475 requires a court “must, in every stage of an action, disregard any error, improperruling, instruction, or defect, in the pleadings or proceedings which,in the opinion of said court, does not 14 The only case cited by the Court of Appeal, Sturgeon, supra 94 Cal.App.3d 957 (Op.13), dealt with the end of the period in which a motion for JNOV may bebrought, not when that motion may be granted. 44 affect the substantial rights of the parties.” Further, it prohibits reversal “unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial.” Moreover, the party complaining must have “suffered substantial injury”, and must show “that a different result would have been probable ifsuch error, ruling, instruction, or defect had not occurred or existed.” (Code Civ. Proc. section 475, emphasis added.) Prejudice cannot be presumed. Hadthetrial court done what the Court of Appeal mandated — stop the trial to make the ruling pre-verdict or follow the timing and | requirements for a JNOV- the same result would have been obtained. Thetrial court followed the procedure it did becauseit could see no benefit in more briefing. Its stated goal was to get the matter decided on the merits. (Jahn v. Brickey (1985) 168 Cal.App.3d 399, 405; Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 440 [disposition on merits preferred over procedural grounds].) A different result would not have been probableif it waited until after judgmentto rule or filed a written notice of motion and groundsfor a JNOVonfive daysnotice. The prejudicial error rule applies even whenthetrial court violates a statutory mandate. (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56 {“most proceduralerrors are not jurisdictional”].) The JNOV statute has been held to be directory, not mandatory. (Espinoza, supra, 247 Cal.App.2d at 46.) Nowhere does the Court of Appeal addressany alleged prejudice from the asserted procedural defects. Plaintiffs did not even assert, either in the trial court or on appeal, most of the positions on the procedure the Court of Appeal adopted. 45 G. THERE IS NO SUBSTANTIAL EVIDENCE WEBB WAS EXPOSED TO ASBESTOS BROKERED BY SPECIAL ELECTRIC Thelack of causal relationship between anyact of Special Electric and Webb’sinjuries is also demonstrated by the lack of evidence crocidolite brokered by Special Electric was incorporated into vent pipe that then found its way into Webb’s lungs. Johns-Manville had at least three suppliers of crocidolite asbestos. (8 RT 2108:6-17; 9 RT 2445:22-28, 2455:7-15, 2456:1-11, 2457:7-25, 2585:21- - 2586:12, 2615:24-2616:10; 2640:2-24; 2641:24-2642:3.) The only product Johns-Manville purchased through Special Electric was ML-6 and MS-1 crocidolite. (9 RT 2642:27-2643:17, 2592:17-2593:2, 2595:2-19, 2601:23- 2602:15.) Because Johns-Manville had several suppliers of crocidolite, and the mining company for whom Special Electric was the broker was not Johns-Manville’s exclusive supplier of crocidolite, any of their crocidolite mayhavebeenin the scraps later blendedinto the Transite vent pipe. Crocidolite was neverpart of the formula for Transite vent pipe, and was blendedin serendipitously through scraps. (8 RT 2365:21-2368:16; 9 RT 2423:4-2424:21, 2427:5-10, 2453:18-26; see also 8 RT 2106:28-2107:24.) The amountof crocidolite that found its way into vent pipe was 1% at most. (9 RT 2440:24-26.) The remaining ingredients included other types of asbestos, including chrysotile from Johns-Manville’s own mines. (9 RT 2443:10-2444:3, 2447:9-17.) There is no evidence that crocidolite was always in vent pipe, nor actually in the pipes Webb handled. (8 RT 2109:6- 2111:3.). | Johns-Manville first received blue asbestos brokered by Special Electric in November1976, designated as “ML6.” (Exh. 339 at Bates No. 003119; 9 RT 2413:22-2414:13; Exh. 334 at Bates No. 003139; Exh. 339 at 46 Bates No. 003139.)5 None of the ML6 was used until May 1977. (Exh. 340 at Bates No. 003412;16 see also 9 RT 2416:16-2417:10.) Therefore, whatever pipes Johns-Manville made before May 1977 could not have in them any crocidolite brokered by Special Electric. Transite vent pipe wasfour inchesin diameter and most, if notall, vent pipe purchased by Pyramid, Webb’s employer, wasfive feet in length. (3 RT 650:6-10, 652:19-23, 685:17-28; 4 RT 1113:24-27, 1163:25- 1164:1, 1170:19-24.) Pyramid, usually sold only onefive-foot piece at a time. (4 RT 1161:26-1162:5.) Johns-Manville records show that there was only one shipmentof 4”x 5’ Transite pipe to Familian between May 1977(the first use of ML6 asbestos) and the end of the records in December1979 -- 77 pieces shipped on June 5, 1979. (Exh. 11010-A at Bates No. 000059-60.)!” Thus, whatever five-foot Transite pipe Pyramid sold before June 1979 could not include any blue asbestos brokered by Special Electric.'® 5 There is other evidence that “various entities” shipped blue asbestos to Johns-Manville in 1974 and 1977-1980. (8 RT 2354:17-2355:13, 2355:29- 2358:26.) There is no evidence as to who shipped the asbestos, which Johns-Manville plant the asbestos was destined for, or when or in what products the asbestos was used. 16 Trial Exhibit 340 is referred to in the testimony as Exhibit 5. (9 RT 2622:2-8.) 17 There wasoneother shipmentof 77 pieces on January 25, 1977, before any ML6asbestos had even been usedso it could not have beenin this shipmentof Transite pipe. (Exh. 11010-A at Bates No. 000523-25.) 18 Only Webb thought Pyramid sold any 10-foot-long Transite pipe. Johns- Manville records showthefirst sale of 10-foot pipe to Familian after Johns- Manville started using ML6fiber for other products wasin July 1977, and there is no evidence asbestos brokered by Special Electric was included in it. (Exh. 11010, Bates No. 000316.) 47 Transite pipe was a small percentage of Pyramid's overall sales, and one of the smallest of the various kinds of pipe sold. (3 RT 686:1-8; 4 RT 1171:6-10.) Webb's “guesstimate”is that Pyramid carried the pipe for about ten years (he started in 1969), but he agreed hereally did not know and it could have beenless. (696:1-697:8, 697:13-25.) Thus, the end date for sale of the pipe wasspeculation. Plaintiffs provided no evidenceof that end date. On this record no reasonable inference can be drawn that Webb was exposed to asbestos brokered by Special Electric. Traces of crocidolite got into Transite pipe from scraps that came from numerousplaces and none has been traced back to Special Electric. Asbestos brokered by Special Electric was not used until May 1977, andthe first shipment thereafter to Familian of five-foot pipe was on June 5,1979. There is only speculation that Pyramid wasstill selling Transite pipe at that time. Its sales having dwindled to nothing by then (3 RT 652:24-653:6, RT 659:19-22; 688:2-689:21; 700:7-14), it is illogical that Pyramid would be buying more. Thus, there is no actual evidence of exposure to any Transite pipe with blue asbestos brokered by Special Electric. A plaintiff must establish actual exposure to the defendant's product and that the exposure was a substantial factor in the plaintiff's disease. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982.) The proofof actual exposure cannot be based on speculation. “The mere‘possibility’ of exposure doesnotcreatea triable issueof fact.” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 108; McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098.) Webbmight have been exposed to Transite vent pipe after June 1979 48 that might have contained blue asbestos that might have come from scraps with blue asbestos brokered by Special Electric. This is conjecture, not evidence. (Lineaweaverv. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1420-21 [nonsuit affirmed because it was only a mere possibility plaintiff's worksites contained defendant's asbestos]; Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655-56 [directed verdict affirmed as uncertain dating of presence of defendant’s product and fact other products were also used madeclaim of exposure conjecture]; Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078 [evidence of asbestos exposure insufficient].) Substantial evidence “clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymouswith ‘any’ evidence. It must be reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case.’” 80 Cal.App.4th at 336.) (DiMartino, supra, Here, there is no substantial evidence of Webb’s actual exposure to asbestos brokered by Special Materials. The Court of Appeal’s holding to the contrary sets a dangerously low bar. Moreover, it was based on a misreadingof the record. The Court of Appealcites a supposed admission of Special Electric’s trial counsel during closing argumentthat Special Electric’s asbestos was in the pipes. (Op. 21-22 n.22.) What counsel actually said was: “the chancesof any fibers that are associated with our brokering operation, the chances of those reaching Webbarevirtually nil.” (16 RT 4722:24-26.) Nor does the volume of asbestos the Court of Appeal ascribed to Special Electric for use in products other than Transite pipe create a reasonable inference that Webb was exposedto it from Transite 49 pipe. Johns-Manville’s records prove otherwise. Vv. CONCLUSION The Court of Appeal found a brokerliable for not warning a sophisticated manufacturer or the manufacturer’s remote consumerof the hazardsof a finished product, even though the broker had noinfluence over the supply of the asbestos or the manufactureorsale of the finished product, and the broker had no way to warn the consumer. Therulingis unprecedented and cannot be reconciled with Johnson. The Court of Appeal also created unreasonable procedural hurdles forlitigants and trial judges, without any showing of undueprejudice. Special Electric submits that the trial court’s original judgment should be reinstated. Dated: September10, 2013 RYDON HU KER Edward R. Hugo JamesC. Parker Jeffrey Kaufman Josette D. Johnson Attorneys for Defendant/Respondent Special Electric Company,Inc. 50 CERTIFICATION OF WORD COUNT I certify that this Opening Brief on the Merits contains 13,812 words, including the footnotes but not including the tables, according to the [Case— ffrey/Kaufman ~ Microsoft Word “Word Count”feature. 51 William B. Webb and Jacqueline V. Webb v. Special Electrict Company, Inc. In the Supreme Courtof California ase No. 5209927 PROOFOF SERVICE I ama residentof the State of California, over the age of 18 years, and nota party to the within action. Myelectronic notification addressis service@bhplaw.com and mybusiness address is 135 Main Street, 20% Floor, San Francisco, California 94105. On the date below, I served the following: OPENING BRIEF ON THE MERITS on the following: Ted W.Pelletier Hon. John S. Wiley Law Offices of Ted W.Pelletier Los Angeles Superior Court 22 Skyline Road Civil Central West San Anselmo, CA 94960 600 South Commonwealth Avenue Los Angeles, CA 90005 Hanley Legal 1442 Grand View Drive Berkeley, CA 94705 X Byplacing the document(s) listed above in a sealed envelope and placing the envelope for collection and mailing on the date below followingthe firm’s ordinary business practices. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Underthat practice it would be deposited with U.S. Postal service on the same day with postage thereon fully prepaid at San Francisco, - California in the ordinary course of business. I am awarethat on motion of party served, service is presumedinvalidif postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury that the aboveis true and correct. Executed on September10, 2013, at San Francisco, California. “—drena Williams