WEBB v. SPECIAL ELECTRIC COMPANYRespondent’s Petition for ReviewCal.April 22, 2013 APR Q 2 2012 In the Frank A. McGui re Clerk SUPREME COUR T OF CALIFORN IA | Deputy AFTER A DECISION BY THE C OURT OF APPEAL SECOND APPELLATEDIST RICT, DIVISION ONE CASE No. B233189 SUPERIOR COURT OF THE COU NTY OF LOS ANGELES, CASE N o. BC436063 HON. JOHN SHEPARD WILEY WILLIAM B. WEBB AND JACQUE LINE V. WEBB, APPELLANTS, Vv. SPECIAL ELECTRIC COMPANY, INC., RESPONDENT. PETITION FOR REVIEW Edward R. Hugo [Bar No. 124839] James C. Parker [Bar No. 106149] Jeffrey Kaufman [Bar No. 48095] 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/Responden t Special Electric Company, Inc. In the SUPREME COURTOF CALIFORNIA AFTER A DECISION BY THE COURT OF APPEAL SECOND APPELLATEDISTRICT, DIVISION ONE CASE NO. B233189 SUPERIOR COURT OF THE COUNTY OF LOS ANGELES, CASE No. BC436063 HON. JOHN SHEPARD WILEY WILLIAM B, WEBB AND JACQUELINE V. WEBB, APPELLANTS, Vv. SPECIAL ELECTRIC COMPANY,INC., RESPONDENT. PETITION FOR REVIEW Edward R. Hugo[Bar No. 124839] James C. Parker [Bar No. 106149] Jeffrey Kaufman [Bar No. 48095] BRYDON HUGO & PARKER 135 Main Street, 20th Floor San Francisco, CA 94105 Telephone: (415) 808-0300 Facsimile: (415) 808-0333 Email: service@bhplaw.com Attoreys for Defendant/Respondent Special Electric Company,Inc. Il. IH. IV. Table of Contents Page(s) ISSUES PRESENTED...cceeccccccsssesstesceesensneececeeceesaeeeseseunseesessnaneeseeeaaas 1 WHY REVIEW SHOULDBE GRANTED10.0... cccseeeteeeeeteeeeeetneeeeeees 2 STATEMENTOF THE CASE...cccccesccccssneecesseeceeseneeestaeeceseeeseeneeessaneees 5 A. TRIAL COURT PROCEEDINGS.....ccccessccssccceseeeeeseecesseseuecesesesasceeaeeeeeeeegs 5 B. COURT OF APPEAL OPINION 0... eeccceescsceeteeeeseeeseeeceeeceaeseseeeeeaeseseeseeas 5 1. THE MAJORITY DECISION .........:ccssssessesessseseecccccceccceeeeseeeseseeseseeeeers 5 2. THE 13-PAGE DISSENT. csssscessessessssssesssvevessssssssscsssseeesstveeseeeese 6 3. PETITION FOR REHEARING.......cceeccsessecesseecceseeseseeseeesesaeeeneseaeeeens 7 STATEMENT OF FACTSuu... cecccccsscccccescecsseeesessaneceesaaeeeeeaeeceaeecetsneeeeneees 8 A. WEBB WAS EXPOSED TO ASBESTOS FROM SEVERAL SOURCEG......... 8 B. JOHNS-MANVILLE WAS SOPHISTICATED ABOUT ASBESTOS........... 9 C. JOHNS-MANVILLE OBTAINED CROCIDOLITE FROM SEVERAL S110)XG)ihc9 D. SPECIAL MATERIALS BROKERED ASBESTOSFIBER.......:ceeseseeseeeeeeees 10 ARGUMENT.ou... eccccccccccssneccesstneececeecsneeececnsnenseeeeeeseseseeeeceesceeeecssnaaeeesnenes 11 A. THERE SHOULD BE NO DUTY TO WARN A SOPHISTIACTED MANUFACTURER OF DANGERS IT ALREADY KNOWS.......ccccceeeeeees 11 B. THE SUPPLIER TO A SOPHISTICATED MANUFACTURER SHOULD Not HAVE A DUTY TO WARN AN END USER WHEN THERE IS NO REASONABLE MEANS TO DO SO AND WHEN THERE IS A PRESUMPTION THE MANUFACTURER WILL PERFORM ITS DUTY0 ARN.iccccccccccccccacsseececetecccccceceevceeesscsucusseccecsscuccecesseussurecsueseasseseaeseuss 1. SPECIAL MATERIALS HAD NO MEANS TO WARN WEBB, AND EVEN PLAINTIFFS DID NOT ASSERT THE BASIS OF LIABILITY IMPOSED BY THE COURT OF APPEAL......scsceseees 14 2. THE LAW PRESUMES JOHNS-MANVILLE WOULD PERFORM ITS DUTY TO WARN WEBB. ........cceseeeeeeeeteeeeeeeneececeeeeeseeseaeeees 17 3. THERE IS NO CASUAL RELATIONSHIP BETWEEN ANY ACT OR OMISSION OF SPECIAL ELECTRIC AND WEBB’S INJURIES.....cccccccssccssssccesssssccessseccessseeccesesseceessseeesaeecssansecseaneees 18 VI. Cc. A BROKER OF A COMPONENT PART SHOULD NOT BE SUBJECT TO STRICT LIABILITY .ic..ceccescessccetscesesssessesesecesvecss 19 D. A GENERAL NEGLIGENCE CLAIM CANNOTBE SUSTAINED BASED ON COMPLAINT ALLEGATIONS RATHER THAN FACTS ESTABLISHED AT TRIAL. ......ccccccccssccccsceseseceeseeseccceccece 22 E. TRIAL COURTS SHOULD HAVE DISCRETIO AS TO WHEN THEY RULE ON MOTIONS FOR NONSUIT AND DIRECTED VERDICT AND PROCEDURAL ERRORS ARE HARMLESS WITHOUTPREJUDICE.......ccccccccsssseceecccceesecccesssseeeesusccessuccsass 23 1. THE COURT OF APPEAL WRONGFULLY JUDGED THE MOTIONS FOR NONSUIT AND DIRECTED VERDICT By THE PROCEDURES APPLICABLE TO A MOTION FOR JNOV 0 occ ccccc ccc ccencenceeeeeteceeeceeecneunnureuneneess23 2. THE COURT OF APPEAL ERRONEOUSLY TREATED THE MOTION FOR JNOV AS HAVING BEEN MADE SUA SPONTE. ccc ccc cece ccccccccccccccccecunnuncunuvevuceeuuvnnes 25 3. THE COURT OF APPEAL IMPOSED ERRONEOUS PROCEDURAL REQUIREMENTSONA SU4 SPONTE MOTION. ....... 0. ccc cece cccceccececeeuesceseseeuneveceeeecnce25 4. CODEOF CIVIL PROCEDURE SECTION 659 DOES NOT REMOVE A COURT’S POWER TO GRANT A MOTION JNOV PRIOR TO THE TIME TO FILE A MOTION FOR NEW TRIAL... 0... cece cece cc cccenccctceesececeeuucennns26 5. PREJUDICE IS REQUIRED FOR REVERSAL. ...........60027 CONCLUSIONucicccsscccessececsssecsecsscsssesseesssssesesssssssessssserseseeerarcesteseece 29 ii Tables of Authorities Page(s) Cases Amesv. Ford Motor Co. (S.D. Tex. 2003) 299 F. Supp. 2d 678 oo.eeeeeseeeceacsestaceeneseeetaees21 Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527 occccccecessesessesseneessesenesensenereesesseeneeneseetaeeas 20 Balczon v. Machinery Wholesalers Corp. (W.D.Pa. 1998) 993 F. Supp. 900...eeeceee ence eeereneneeneneenateneeaens 21 Bay Summit Community Assn. v. Shell Oil Co. 1996) 51 Cal.App.4th 762 ooo.cencercs ens cseennsenesesnaesesenenieee 20 Beavers v. Allstate Ins. Co., supra, 225 Cal.App.3d at 327 .ocicceccccceccseesenecseicsenssessssessneseserenesneesssenenenesenesessenes 25 Bojorquez v. House of Toys, Inc. (1976) 62 CaLApp.3d 930...ceceee eeeeee er see teenenenensseeesessenesesesanneenenetiey 12 Celli v. Sports Car Club ofAmerica, Inc. (1972) 29 CalApp.3d S11eeeencreceren erence cesreeereanenneete 17 Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579... cecccccccsccesnseessescseeeeseesecsecesecseeceeceaeseaecteseaeseeeseseasenseeas 25 Cornette v. Dept. of Transportation (2001) 26 Cal. 4! 63 oo... eccccssecsseesecsseseeeceecesesacensecseeeaeceaeeaesesneeeaseaeeeasesneeeneseeeeas 27 Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332...cececes rcereseeesseseserseneeneneesessenenseseeeenens 17 Espinoza v.Rossini (1966) 247 Cal.App.2d 40.ceccsccssecseeessesceressestesessessseessaseeessessesssserees 20 Ferrari v. Grand Canyon Dories (1995) 32 CaLApp.4th 248 ooeeee rience ensenesseeeesenreeeeeseseneneeney 20 Fierro v. International Harvester Co. (1982) 127 Cal.App.3d 862.0...ccccrene rene eneeeseectesnsenesreneeees 3, 12, 18 Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444...eeeene reeeciseesesseseneneseeesnecereess 3, 16 Harris v. Johnson (1916) 174 Cal. 55oeecceesessecnecseeeeteeseecenseceecececneceseeseseaseesusaecaeeeresaeeneeeees 17 Haynes v. National R.R. Passenger Corp. C.D. Cal. 2006) 423 F.Supp.2d 1073 oo.ceeeeeceee cee reeeneneeseneeenees 20 lil Herrill v. Auge (1931) 114 Cal.App.492ooeceene ere rene neces seserieescscseseseeeeeseseesereneeeteey 25 Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424ccccenecseesseseseeseescecscecsesescanerecssecesseseseseseresetetes 28 In re Asbestos Cases (N.D.C.A. 1982) 543 F. Supp.1142 oececeserene cesee cesses rneenens19 In re Marriage of Goddard (2004) 33 Cal.4th 49eeereece erenees iene teeeensieensieisisaseneeseeseenseees 28 Jahn v. Brickey (1985) 168 Cal.App.3d 399.eceecee tee ce cereiesessesesessesesesseseceesseseseeenes 28 John Norton Farms, Inc. v. Todagco (1981) 124 CalApp.3d 149.eeeee eres eeeetseensensneeserecsesenesseseeesassees 24 Johnson v. American Standard (“Johnson”) (2008) 43 Cal.4th 56... ccecceeceesceseeeeecaeeeceectsessenseeeeseseesesaeietsesesesaeegs 3, 12, 17, 18 King v. Hercules Powder Co. (1918) 39 CalApp. 223occresseeeesseneceeeeeecneneeeseeseseseeeeeeseeesseaeenees 24 La Manna v. Stewart (1976) 13 Cal.3d 413... cecccccccscceceseceecececeseversieecsanesseceaceaeeseeeressesenasesaeeneerates 26 Lyons v. Premo Pharmaceutical Labs, Inc. (1979) 170 N.J.Super, 183ceceee escnseseneneesecsesecnenesssessscsesenssessesenseeeeenes 21 Massey v. Cassens & Sons, Inc. (S.D. IIL, Sept. 13, 2007, 05-CV-598-DRH) 2007 WL 2710490...ese21 Murphy v. E. R. Squibb & Sons, Inc. (1985) AO Cal.3d 672... cessccsccccesscscecsssceeecsecseesessesseuccecssssesessuecssseeesecusteeeeens 20 Musser v. Vilsmeter Auction Co., Inc. (1989) 522 Pa. B67.eecceseeseeseeesseenseseseeeeeeesessesssessaseesscessesessseesisieeessecsseessaeess 21 O'Neil v. Crane Co. (2012) 53 Cal.4th 335ccccesses cssnecsenesesessesseseenenesssseeenesesesieessneneeeeny 16 Oscar Mayer Corp v. Mincing Trading Corp. (D.N.J. 1990) 744 F.SUpp. 79...cececseesceeeenececssnsssssesereneneesensseesaneceenees 21 Pena v. Sita World Travel (1978) 88 Cal. App. 3d 642.0... eereesensseeecseaesscsssenenenecesseseecaeeeneeaesees 20 People v. Gardele (1996) 14 Cal. 4th 605 oo... cccccccccesseeseesecsesecseeeeseceeeesesseeaeercseaseeceteaesenseeenetaes 26 Persons v. Salomon North America, Inc. (1990) 217 CalApp.3d 168.0...cececnesesserecreresessenesastenssseeesesenees 4,15 iv Powell v. Standard Brands Paint Co. (1985) 166 CalApp.3d 357...ccceecscneeseens ese cessestsessesiensseseseeenenaenisey 16 Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461oonnerrnenessesnenanesseeneesateees 18 Sanchez-Corea v. Bank ofAmerica (1985) 38 Cal.3d 8920ceceres eeenteeneneeereteernicensseseseseevevecarereneeaeaees 26 Stewart v. Cox (1961) 55 Cal.2d 857.0... ccccccscesseesseceeeecsssecseceeeeneseeceaeecsesneeesecsecseeeeserseneesnees 17 Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23 o.ccceccccesceecereeeeesseessesnsnenseesensissecenenseeessenass 13 Stultz v. Benson Lumber Co. (1936) 6 Cal.2d 688 .0......ccccccsccssesescesssseseeesesecsecseeeesesetseseessaceaeeseceeereaseaeereeneaess 18 Taylor v. Elliott Turbomachinery Co., Inc. 2009) 171 Cal.App.4th 564oocerenescseseessestenssenesesssecessessseesaseeees 12 Travelers Indem. Co. v. Bailey (2009) 557 U.S. 137eeeteceee sete cneeereescseseseneeesecseesseneesssseseneseseeseaeaseeeeas 11 Tucker v. Lombardo (1956) 47 Cal.2d 457.0... ceccccccceecesscesesseeecseceeecsecseeesecsssceseeseseseteieesieseaseaeeeaeenses 17 Wilson v. County ofLos Angeles (1971) 21 CalApp.3d 308.0... ceeeceseeeretcseseeesesseserssesesecneneessessneseseneeseseess 25 I. ISSUES PRESENTED 1. Is it a tort not to warn a manufacturer of hazards the manufacturer already knows? 2. Is it a tort not to impose a contractual obligation to warn upon a manufacturer, when the manufacturer already owesa tort duty to warn? 3. Maythoseassociated 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 endusers of hazards, especially when those outside the chain have no reasonable means to warn the end users? 4. Absent a 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 notin the chain of distribution and do notprofit from the end product, are brokers subject to strict products liability? 6. If there was no duty to warn, can a general negligence verdict be sustainedif the only form of negligence wasa failure to warn? 7. If there is no prejudice, maya 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 verdictNOV), and rule upon them before expiration of the timefor filing a motion for newtrial? Il. WHY REVIEW SHOULD BE GRANTED This case presents major issues of compelling interestto litigants across California. The primary issuesare: 1. Whethera broker to a sophisticated manufactureris subject to a duty to warn that manufacturer of hazards the manufacturer already knows; and 2. How and whena trial court may rule on timely submitted motions for nonsuit, directed verdict, and JNOV. In a 2-1 published decision, the Second District reversed the judgmentof the trial court and reinstated a $5,004,695 jury verdict against Special Electric Company,Inc. (“Special Electric”). The trial judge, the Hon. John S. Wiley, had post-verdict granted Special Electric’s timely filed motions for nonsuit and directed verdict, which he had deferred so as not to delay the trial and to give the parties ample opportunity to fully brief the issues. Deeming them motions for JNOV, he granted that motion as well. On the merits, the trial judge found that Johns-Manville, a sophisticated, knowledgeable company concerning asbestos, did not need to haveits asbestos brokers warnit of the hazards of asbestos. And,in the absenceof any evidenceto the contrary, the broker could rely on Johns- Manville to discharge its own independent duty to warn those end users. The Court of Appeal reversed on both procedural and substantive grounds. It held that since they were heard post-verdict, the previously filed motions for nonsuit and directed verdict, though timely and proper, had to comply with the procedural requirements for a JNOV. According to the majority, the trial court’s pragmatic deferral meantthat it could no longer decide those motions under their own procedures, and it was premature to decide them under JNOV procedures. No court has ever found the procedures here constitute reversible error. Yet the majority not only found them reversible error, it do so without any finding that they had caused any prejudice. Its procedural rulings limit trial court _ discretion, and threaten to lengthen trials and impose additional burdens on jurors. On the procedural points, the dissent characterizes the majority’s opinion as having “nolegal precedent,” as being “implausible,” and relying on “technical errors” that were “undeniably harmless”. (Dissenting Opinion (“Dis. Op.”)at p. 8, 9, 10, 11.) The majority’s reasoning on the merits is equally flawed. The majority acknowledgedthat “No one on this appeal doubts that Johns- Manville was a sophisticated user of asbestos, who needed no warning about its dangers.” (Op. at p. 17) Nonetheless, Special Electric oweda tort duty to warn Johns-Manville. This holding conflicts with the basic principle that obvious hazards need not be warned of, and with Johnsonv. American Standard (“Johnson”) (2008) 43 Cal.4" 56, 67 (“there is no need to warn of knownrisks undereither a negligenceorstrict liability theory”). The majority also held Special Electric had an independent duty to warn Mr. Webb,the end user of Johns-Manville’s products, even though Plaintiffs themselves disclaimed that position, and even though Special Electric could not know whothe end user would be nor ever reach the end users such as Mr. Webb. These holdings impose an impossible duty upon defendantslike Special Electric and cannot be reconciled with prior case law. (Fierro v. International Harvester Co. (1982) 127 Cal.App.3d 862 [no duty to warn knowledgeable company of flammability properties of gasoline; Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444, 449 [“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.”]; Persons v. Salomon North America, Inc. (1990) 217 Cal.App.3d 168, 178 [no _ duty of ski binding manufacturer to warn ultimate user].) The dissent is appalled. “The majority holds that it can be a tort to fail to tell someone something they already know,and that it can also be a tort to fail to impose on someonea contractual duty to do something they already have a tort duty to do.” (Dis. Op. at p. 1.) Requiring Special Electric to warn Webb meantthat holding “Special Electric liable on the basis of a theory that plaintiffs themselves have never advanced.” (Dis. Op.at p. 3, 4.) The majority view conflicted with the general rule that ““every person hasa right to presumethat every other person will perform his duty and obey the law... .’” (Dis. Op. at p. 4.) Moreover, there was no evidence of causation to support the theory that the failure to warn Johns- Manville or to try and warn Webb through Johns-Manville had any connection to Webb’s injuries. There wasalso no evidence that Webb was exposedto asbestosattributable to Special Electric. The dissent variously characterized the majority opinion as “unprecedented,” “incorrect as a matter of law,” without “authority or reasoning,” and “extraordinary.” (Dis. Op. at pp. 4, 5, 6.) Atleast one defendantin toxic tort litigation has already requested de-publication of the Opinion. If the decision is not reversed, or de- published, considerably confusion and unnecessarylitigation willresult, both on the heretofore unknown-to-be-erroneous procedural issues and the scope of the newly expanded duty to warn. This matter requires Supreme Court guidance. UWI. STATEMENT OF THE CASE A. TRIAL COURT PROCEEDINGS Plaintiffs’ complaint named 11 defendants. Attrial, only three remained. WhenPlaintiffs rested, Special Electric timely moved for nonsuit on the failure to warn theories. In the interests of efficiency, and so the parties could brief the issues (which even Plaintiffs requested), the trial court deferred ruling on the motion. The parties then briefed the issues. (1 Appellants’ Appendix (“App.”) at 62, 77, 151; 18 RT 6602:7- 6603:1; see also 11 RT 3003:28-3304:3.) Whenbothsides rested, Special Electric moved for a directed verdict. The court deferred ruling on that motion as well so it could be briefed, which it was. (1 App.at 68, 176.) Before any hearings on the two pre-verdict motions could be held, the jury returned a verdict in favor of Special Electric on Plaintiffs’ design defect (consumer expectations) theory, but against Special Electric on the failure-to-warn and negligence theories. (1 App.at 143.) Thereafter, the trial court indicated its intent to grant Special Electric’s motions. At Plaintiffs’ request, the matter wasset for further briefing and argument. Supplementalbriefs on both motions werefiled and a further hearing was held. (1 App. at 196; 2 App. at 309.) The trial court then granted both motions. The court also deemed them to be a motion for JNOV,and granted that motion as well. (2 App.at 383). Judgmentwasentered and Plaintiffs appealed. (2 App.at 384; 404) B. COURT OF APPEAL OPINION 1. THE MAJORITY DECISION Addressing the JNOV motion, the appellate court treated it as having been madeonthetrial court’s own motion, although the order and judgmentstate that the trial court deemed Special Electric’s motionsto also be a JNOV motion.(2 App.at 383, 401.) The appellate court held that for a trial court to grant a JNOV on its own motion it must give five days written notice of its intent to do so, and must provide written notice of the grounds for the motion. Further, it must not grant the motion before 15 days after entry of judgment, whichis the time within which to movefor a newtrial. It held the trial court’s grant of JNOV was beyondits authority and impermissibly premature. Further, after the verdict, the nonsuit and directed verdict motions hadto satisfy the procedural requirements of a JNOV motion. In short, the trial court was tardy on ruling on the pre- verdict motions and premature in ruling on them as post-verdict motions. Yet, there was nofinding of prejudice. On the merits the appellate court held that Special Electric had a duty to warn Johns-Manville, and an independent duty to warn Webb, notwithstanding Webb nevertook the position Special Electric had to warn him directly and Webb’s counsel at oral argument disclaimed he was so contending. (The majority apparently did not accept Webb’s argument that Special Electric had a tort duty to contractually force Johns-Manville to warn the endusers.) The appellate court also found that Special Electric’s motions did not reach the general negligence verdict, just the strict liability and negligent failure to warn claims. 2. THE 13-PAGE DISSENT Justice Rothschild advanced full-blown reasoning for his disagreementwith the majority. There was nofailure to warn Johns-Manville becauseit is not a tort to fail to tell someone something they already know. There wasnofailure to warn Webb because Webb nevercontendedSpecial Electric could or should have warned him, and Johns-Manville already had a tort duty to warn, on which Special Electric could rely. Special Electric had no duty to seek a contractual agreement, and there is no evidence that Special Electric had reason to know Johns-Manville would notfulfill its duty to warn. Further, there is no causal relationship between Special Electric’s alleged failure to warn andthe injuries to Webb. No warning to Johns- Manville would havetold it anything it did not already know,andthereis no evidence a contractual duty would have madea difference. None of Special Electric’s acts or omissions cited by the majority made any difference to Webb’s injuries. There were no proceduralerrors, and no prejudice. Plaintiffs had ample notice and opportunity to be heard on all arguments. There is no authority to eliminate a need for showing prejudice by concludingthetrial court’s holding was “procedurally impermissible”, and Plaintiffs did not take that position. In addition, the statute does not say the court has no powerto rule on a JNOV motion before the timefor filing a newtrial motion ends. There is no written notice requirementfor sua sponte motions, and, in any event, reversal would depend on prejudice. Finally, imposing JNOV requirements on the nonsuit and directed verdict motions is unprecedented. Asto the general negligence claim, there was no negligence claim except negligent failure to warn. 3. PETITION FOR REHEARING A Petition for Rehearing wastimely filed. The court changed a factual statementin its Opinion but denied the request for rehearing. IV. STATEMENTOF FACTS A. WEBB WASEXPOSED TO ASBESTOS FROM SEVERAL SOURCES William Webb, age 67, was diagnosed with mesothelioma, which he claimed wascaused by asbestos exposure from the mid-1950’s to the 1970's. (3 RT 606:2-616:6, 621:7-11, 624:17-626:27, 628:24-630:1.) From 1969 to about 1980, while working at Pyramid Pipe & Supply (“Pyramid”) in Canoga Park, CA he occasionally handled Transite pipe, an asbestos pipe manufactured by Johns-Manville typically in five-foot lengths for hot water heater venting. (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.) B. JOHNS-MANVILLE WAS SOPHISTICATED ABOUT ASBESTOS The Transite pipe was manufactured at Johns-Manville’s Long Beach plant. Johns-Manville had been manufacturing asbestos-containing products since the 1850’s. (9 RT 2644:22-2645:1, 2645:14-18.) Johns- Manville made many asbestos-containing products, including cements, millboard, residential siding, roofing products, flooring, insulation, asbestos cement pipe, and Transite pipe. (5 RT 1443:26-1444:25; 9 RT 2627:7-14, 2619:25-2620:7.) By the 1970's, Johns-Manville had grown to 30,000 employees and operated numerous plants and asbestos mines in North America and overseas, including the Jeffrey Mine in Quebec, one of the world’s largest asbestos sources. (9 RT 2616:20-2617:6; RT 2645:4-12; 5 RT 1441:25-1442:2.) Its pipe division consisted of six plants processing a variety of types of asbestos for manufacturing asbestos cement pipe. (9 RT 2627:7-14, 2619:25- 2620:7.) Johns-Manville’s state of the art research and development department knew “all the characteristics of asbestos, even chemically- wise.” (9 RT 2645:19-2646:13.) Johns-Manville bought “a lot of typesoffiber from a lot of different sources.” (9 RT 2642:5-8.) As a mine owner, manufacturer, and consumer, Johns-Manville had developed superior knowledge aboutthe hazards of asbestos. It knew howto safely handle asbestos, and long before the 1970's had well-established asbestos safety practices in place. (9 RT 2647:1-9.) Johns-Manville did not look to brokers, including Special Materials, for information or warnings aboutasbestos. (9 RT 2647:10-19.) Special Materials could not have told Johns-Manville anything about asbestos or its hazards that Johns-Manville did not already know. (9 RT 2651:3-6.) In fact, Johns-Manville educated Special Materials about asbestos. (9 RT 2646:14-21.) Plaintiffs' industrial hygiene expert, John Templin, opined that Johns-Manville knew the potential health hazards of asbestos by at least the 1930's. (8 RT 2104:1-9.) Plaintiffs’ epidemiology expert, Murray Finkelstein, studied Johns-Manville, interviewed current and former employees, and toured and reported ona 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.)Finkelstein agreedthat Johns-Manville was an industry leader and no company in the United States had greater knowledge aboutasbestos. (5 RT 1446:18-1447:1, 1447:2- 1447:10.) C. JOHNS-MANVILLE OBTAINED CROCIDOLITE FROM SEVERAL SOURCES Crocidolite asbestos was neverpart of Johns-Manville’s formula for Transite vent pipe; however, in practice employees at the Long Beach plant included in the mix discarded or scrap pipe ground up from many different sources, which could includecrocidolite. (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 [Templin].) However, notall scraps were used and some weredispos ed of at dumpsites. (RT 2454:9-17). Less than 1% of the actual blend for v ent pipe could be bluefiber. (9 RT 2440:24-26.) Johns-Manville had several suppliers of blue asbestos whosefiber may have been in the scrap and the mining company for whom Sp ecial Materials was the broker was not Johns-Manville’s exclusive suppli er of _ blue asbestos. (8 RT 2108:6-17; 9 RT 2445:22-28, 2455:7-15, 2456:1-11, 9457:7-25, 2585:21-2586:12, 2615:24-2616:10; 2640:2-24; 2641:24-2642:3 .) The only product Johns-Manville purchased through Special Materia ls was ML-6 and MS-1 blue asbestosfiber. (9 RT 2642:27-2643:17.) All other non- crocidolite asbestos fibers, over 30 different types, were purchased through other brokers, or from other vendors and suppliers. ( 9RT 2643:11-17: 9 RT 2639:8-2642:12, 2643:11-17; Exhibit 339.) D. SPECIAL MATERIALS BROKERED ASBESTOSFIB ER Special Electric Company, incorporated in 1957, wasin the elect rical insulation business. (6 RT 1652:16-17; 1667:25-26.) It did no t sell or broker the sale of the asbestosfiber allegedly at issuein this case. (6 RT 1667:27- 1668:3; 10 RT 2723:26-2724-3.) It shared a commonpar tial owner, Richard Wareham,with Special Materials-Wisconsin, the actualentity that brokered the sale of asbestos.? (6 RT 1759:11-16.) The Joh ns-Manville employeethatdealt directly with Special Materials describedit as a “broker.” (9 RT 2586:9-12, 2592:17-2593:2, 2595:2-14; 2638:19-2639 :2.) 1 Trial Exhibit 339 is referred to in the testimony as Exhibit 4, as that was the numberusedin the deposition being read. (9 RT 2613:15 -23.) 2 Special Materials was incorporated in 1969 under the na me Special Asbestos, changing its name in 1976. 10 Special Materials never took possession of any asbestos. (6 RT 1658:5-9.) Rather, as a broker, it brought together buyers andsellers of asbestos. Johns-Manville would issue a purchase order, Special Materials would provide Johns-Manville with shipment information, and the mining company, Central Asbestos Companyin South Africa, would pay Special Materials a commission. (6 RT 1663:3-12; 9 RT 2592:17-2593:2.) The Johns- Manville purchase orders required the asbestos be shippedin special polywovenbags with the OSHA warning printed on them. (6 RT 1162:2- 21; 1665:14-1666:3; 1670:6-20.) The bags andthe billing papers were shipped directly from Central Asbestos to Johns-Manville facilities, including Long Beach. (6 RT 1658:1-9.) Vv. ARGUMENT A. THERE SHOULD BE NO DuTY TO WARNA SOPHISTICATED MANUEACTURER OF DANGERS IT ALREADY KNOWS Johns-Manville was one of the most knowledgeable companiesin the world about asbestos. “From the 1920sto the 1970s, Manville wa s, by most accounts, the largest supplier of raw asbestos and manufacturer of asbestos-containing products in the United States.” (Travelers Indem. Co. v. Bailey (2009) 557 U.S.137, 129 S.Ct. 2195, 2198.) The Court of Appeal acknowledged: “Noonein this appeal doubts that Johns-Manville was a sophisticated user of asbestos, who needed no warning aboutits dangers.” (Op.at p. 17.) Johns-Manville was fully aware of the hazardsof asbestos, and there wasnothing Special Materials could warnit about that Johns-Manville did not already know. Johns-Manville prescribed to Special Materials not only the special bagsthat the asbestos wasto be shipped in - specially designed 1] to contain the fiber — but also the language of the warningsto be printed on each and every bag. (1 AA 208:21-23 and Exh. E thereto at 2 AA 284- 285.)° Johns-Manville was obviously aware of what the warnings should say. A plaintiff bears the burden of proving that product warnings were required to comefrom the defendant, here Special Materials. (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 576.) Warnings are not legally necessary and serve no purpose whenthe hazardis already knownoris obvious. (Id. at 577; Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d 930, 933 [dangers of slingshots so obvious warningsare unnecessary].) The “obvious danger” rule holds that “there is no need to warn of knownrisks undereither a negligenceor strict liability theory.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 67; Commentk to Section 388 subdivision (b) of the Restatement (Second) Torts.) The obvious dangerrule has been extended in California to those users already sophisticated or knowledgeable about product hazards. “{S]ophisticated users need not be warned about dangers of which they are already aware.” (Johnson, supra, 43 Cal.4th at 65.) The sophisticated user/obvious danger defense negates the causation elementof a failure to warntheory. Pre-existing “knowledge of the dangers is the equivalentof prior notice” (Id. at 65), and failure to warn of a risk already knowncannot be a legal or proximate cause of injury. (Id. at 67.) For example, in Fierro v. International Harvester, supra, 127 Cal.App.3d 862, International Harvester sold a truck body to decedent's 3 In the post-trial arguments, Plaintiffs stated “we actually had evidence in this case where Johns-Manville contractually required a warning to be ona bag of asbestos.” “Johns-Manville required that the South African mining concernput a particular warning on the bag of asbestos.” (See 18 RT 6916:4-22.) 12 employer, who elected to run a powercable 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 near a fuel tank. The court disagreed. “A sophisticated organization like Luer does not have to be told that gasoline is volatile and that sparks from an electrical connection or friction can cause ignition.” (Id. at 866.) The “absence of a warning to Luer did not substantially or unreasonably increase any danger that may haveexisted 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 knowledgeof the intermediary, the employer, foreclosedliability of the manufacturerto the ultimate user. Here, Johns-Manville knew the risks from asbestos. They “weren't looking to Special Materials to” give them warnings. (9 RT 2647:10-13.) As the trial court aptly said, warning Johns-Manville about asbestos would be like “telling the Pope about Catholicism.” (18 RT 6618:4-12.) Thetrial court ruled that Special Electric had no duty to warn Johns- Manville. “The law does not require .. . a 25-person operationtotell the world’s premier asbestos corporation aboutasbestos.” (18 RT 6618:24-26.) The absence of warnings from Special Materials, if any, did not increase the danger to Webb,or affect any warnings required of Johns-Manville. Warnings to Johns-Manville would have madeno difference and were not a proximate or legal cause of injury to Webb. Plaintiffs and the Court of Appeal rely on Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23. Stewart is the polar opposite of this case. There, Union Carbide sold raw asbestos to a drywall company, and argued that the purchaser should be presumed to know the dangersof the asbestos. 13 (Id. at 29.) In contrast, no presumption is required here: Johns-Manville in fact and without dispute knew of the hazards and hadin fact acquiredits own knowledge. Thetrial court distinguished Stewart because there a knowledgeable company wasseeking to absolveitself of the duty to warn a customerregardless of the customer's actual knowledge or sophistication. (18 RT 6619:14-6621:4.) Whereashere, “Telling somebody something they already knowis pointless.” (18 RT 6618:22-23.) B. THE SUPPLIER TO A SOPHISTICATED MANUFACTURER SHOULD Not HAVE A DUTY TO WARN AN END USER WHENTHEREIS NO REASONABLE MEANSTO DO SO AND WHEN THERE IS A TARESUMPTION THE MANUFACTURER WILL PERFORM ITS DUTY TO ARN 1. SPECIAL MATERIALS HAD NO MEANS TO WARN WEBB, ANDEVEN PLAINTIFFS DID NOT ASSERT THE BASIS OF LIABILITY IMPOSED BY THE COURT OF APPEAL The Court of Appeal also erroneously held that Special Materials had an independent duty to warn Webb. As Justice Rothschild points out in Dissent, Webb never contended Special Materials had a duty to directly warn him. Whenaskedat oral argument whetherPlaintiffs contended that Special Electric was supposed to warn Webbdirectly, Plaintiffs’ counsel answered, “Of course not.” (Dis. at p. 3.) Nor could he. The un- contradicted evidenceis that Special Materials could not even know whether asbestosattributed to it was in the products with which Webb came into contact. The crocidolite asbestos in the Transite pipe, if any, was only there because of scraps from other pipe. Special Materials could not trace any particular crocidolite asbestos into the Transite pipe in general or into particular batches sold to Familian and bought by Pyramid. Thereis no evidencein the record that suggests Special Materials could know who Johns-Manville’s customers were (especially remote ones like Webb), no 14 less which products they bought and whether asbestos it brokered wasin them. The majority has held Special Materials/Special Electric liable on a theory not even advancedby Plaintiffs. Further, Special Materials had no meansof giving notice to end users of Johns-Manville products. The asbestos was removedat Johns- Manville’s plant from the bags it was shipped in. Special Materials could notlabel or inspect Johns-Manville products evenif it knew which products had asbestosit brokered. Plaintiffs argued in thetrial court and in their appellate brief that Special Materials should have contractually compelled Johns-Manville to warn consumers. Noevidenceor law supports that suggestion and the trial court correctly rejected it as defying commonsense:“It’s a pretty big regulatory compliance program for a fiber broker to undertake. | think it would have been sucha startlingly and apparently irrational way to do businessin the ‘70's, that it would have come as a genuinesurprise to everybody involved ....” (18 RT 6934:17-23.) There was no evidence that Special Materials, a small company, had sufficient bargaining powerto compel Johns-Manville, an international behemoth, to submit to a warning program on Special Materials’ terms. No contractual requirement could have been madepractically enforceable. “When a manufactureror distributor has no effective way to convey a product warningto the ultimate consumer, the manufacturer should be permitted to rely on downstream suppliers to provide the warning. ‘Modernlife would be intolerable unless one were permitted to rely to a certain extent on others doing whatthey normally do, particularly if it is their duty to doso.’ (Rest.2d Torts, § 388, com. n, p. 308.)” (Persons v. Salomon North America, supra, 217 Cal.App.3d at 178 [no duty of ski binding manufacturer to warn 15 ultimate user].) Special Materials had no duty to warn Johns-Manville customers or their customers. “Understandably, the law does not require a manufacturer to study and analyze the products of others and to warn users of risks of those products.” (Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 364.) There is “no duty to warn of risks arising from other manufacturers’ products.” (O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 348.) Cases which have imposed a duty on the manufacturer to warn the ultimate consumer have typically 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 timeasit 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. (Groll v. Shell Oil, supra, 148 Cal.App.3d at 448-49.) Here, Special Materials had no wayof giving warnings that could reach the end user. The Court of Appealsidestepsall this authority by holding in general there was a duty to warn Webb andthenleavingit to the jury to decide the scopeof that duty. That holding abdicates the role of the court to the jury. The trial court properly exercised its authority in deciding there was no duty. It was error for the Court of Appealto rely on the jury to make that decision, and its doing so greatly and unreasonably expands the concept of the duty to warn. 2. THE LAW PRESUMES JOHNS-MANVILLE WOULD PERFORM 16 Irs DUTY TO WARN WEBB Judge Rothschild’s dissent called the majority opinion “unprecedented” and “incorrect as a matter of law” because Johns- Manville had a duty to warn users of its products concerning their dangers. (Johnson, supra, 43 Cal.4* at 64.) (Dis. Op. at p. 4.) “The general rule is that every person hasa right to presumethat every other person will perform his duty and obey the law, and in the absence of reasonable groundto think otherwise it is not negligence to assumethat he 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- 59; Celli v. Sports Car Club ofAmerica, Inc. (1972) 29 Cal.App.3d 511, 523.) There was no evidence that Special Materials had reason to believe Johns- Manville would not perform this duty (assuming it did not). “[NJegligent conduct with full realization of the danger may properly be considered highly extraordinary.” (Stewart v. Cox (1961) 55 Cal.2d 857, 865.) (See Tucker v. Lombardo (1956) 47 Cal.2d 457, 467-68; and Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332 [defendant could expect others to use reasonable care].) There is no basis on which to impose on Special Materials a duty to contractually require Johns-Manville to do whatit already had a tort duty to do. The Court of Appeal majority imposed on Special Materials, at best a componentpart supplier, an independent duty to warn end users irrespective of warnings the manufacturer might give, another basis of liability not advocated by Plaintiffs. Creating a jury question for every instance in which a componentsupplier relies on the manufacturer to warn the end userflies in the face of modern practices andreality. The Court of Appeal majority eviscerates the presumptionthat every other person will perform his duty by requiring Special Materials to 17 have provenits actual expectation and reliance on Johns-Manville’s notice. That turns the presumption onits head. 3. THERE IS NO CAUSAL RELATIONSHIP BETWEEN ANY ACT OR OMISSION OF SPECIAL ELECTRIC AND WEBB’S INJURIES There must be a causal connection between anyalleged act or omission of Special Materials and Webb’s injuries. Here there is none. There is no evidence that warning Johns-Manville would have had any impact on Webb’s injuries because there was nothing Special Electric could tell Johns-Manville about asbestos that it did not already know. Nor would attempting to warn Webb have made anydifference. There was nothing Special Electric could do to directly warn Webb(andPlaintiffs did not claim that Special Electric had such a duty). There was no evidence that Johns-Manville would have heeded a contractual duty any more than its already existing tort duty to warn. The obvious dangerrule is based in part on the recognition that not telling someone something they already know does not increase the danger to anyone. “The rationale supporting the defenseis that ‘the failure to provide warningsabout risks already knownto a sophisticated purchaserusually is not a proximate cause ofharm resultingfrom thoserisks suffered by the buyer's employees or downstream purchasers.’” (Johnson, 43 Cal.4th 56, 65 [emphasis added]. See also Fierro v. International Harvester, supra, 127 Cal.App.3d at 866.) Noneof the acts cited by the Court of Appeal as supposed breaches of the duty to warn had any causal relationship to Webb’s injuries. (See Stultz v. Benson Lumber Co. (1936) 6 Cal.2d 688 [seller not liable for injury to buyer’s employee from defective condition of product knownto seller and buyer]; see also Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 18 1461, 1467 [“use of the article, knowing the danger posed byits defective condition, is an intervening cause of the plaintiff's injury.”].) The burdenis on plaintiffs to show that the negligence of the intervening actor was foreseeable by defendants such that they should not be absolved ofliability. (Asbestos Cases, supra, 543 F. Supp. at 1150-51; CACTINo. 411 [every person hasa right to expect that every other person will use reasonable care].) CACI 411 and the superseding cause instruction were given. (1 AA 108, 111.) Plaintiffs did not meet this burden. C. A BROKER OF A COMPONENT PART SHOULD NOTBE SUBJECT TO STRICT LIABILITY Defendant timely movedfor directed verdict on the groundthat | Special Materials was only a broker and therefore had no duty to warn. Thetrial court granted that motion. The Court of Appeal failed to address this issue, even after the omission waspointed out in the Petition for Rehearing. Special Materials merely acted as a broker; it never ownedor possessed the asbestos sold to Johns-Manville, never controlled or influenced manufacturing, and was not involvedin thesale or distribution of any Johns-Manville product. Special Materials helped arrange for shipments from the mine in South Africa to the plant in Long Beach.It provided a service, and was no morein the chain of distribution than other service providers, such as the ship that carried the asbestos or the warehousethatstored it (both of which hadactual possession of the asbestos, unlike Special Materials). Johns-Manville itself thought of Special Materials as a “broker.” (9 RT 2586:9-12, 2592:17-2593:2, 2595:2-14; 2638:19-2639:2.) Strictliability “is not limitless” and will not be imposed in the 19 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 Bay Summit set forth three factors requiredforstrict liability: (1) defendant received a direct financial benefit from its activities and from the sale of the product; (2) defendant’s conduct was necessary in bringing the productto the initial consumer market; and (3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process. The mere fact an entity “promotes” or “endorses” or “advertises” a product does not automatically render that entity strictly liable for a defect in the product. (51 Cal.App.4th at 775-76). In Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1538, a finance lessor was held notstrictly liable because the finance lessor wasin no position to exert pressure on the manufacturer to enhance the safety of the machine. Even though thelessor’s financing role was critical, imposingstrict liability would notfurtherall the policy considerationsforstrict liability. It could not assert pressure on the manufacturer to enhancesafety. Likewise, those merely providing a service are not subject to strict liability. (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 258 [recreational rafting companynotstrictly liable for condition of raft, as that wasincidental to provision of a service]; Murphyv. E. R. Squibb & Sons, Inc. (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 wasnotstrictly liable for injury suffered by plaintiff on a travel bus]; Haynes v. National R.R. Passenger Corp. (C.D. Cal. 2006) 423 F.Supp.2d 1073, 20 1085, [Amtrak notstrictly liable for the configuration of the seats incidental to it providing transportation services.) No California court has held that a broker, evenif theoretically part of the chain of distribution, can bestrictly liable for manufacturing defects or warnings, and otherjurisdictions have rejected that contention. In Oscar Mayer Corp. v. Mincing Trading Corp. (D.N.J. 1990) 744 F.Supp.79, 84-85, the court held a broker of a food product could not be held to be within the “chain of distribution” as was not “in a position to exert pressure to ensurethe safety of the product.” Other cases reach the same result where the broker never owns, controls or possesses the product. (Lyons v. Premo Pharmaceutical Labs, Inc. (1979) 170 N.J.Super. 183, 406 A.2d 185, 196-197 (App.Div.), cert. denied, 82 N.J. 267, 412 A.2d 774; Balczon v. Machinery Wholesalers Corp. (W.D.Pa. 1998) 993 F. Supp. 900; Musser v. Vilsmeter Auction Co., Inc. (1989) 522 Pa. 367, 562 A.2d 279, 283; Ames v. Ford Motor Co. (S.D. Tex. 2003) 299 F. Supp. 2d 678; Massey v. Cassens & Sons, Inc. (S.D. Ill., Sept. 13, 2007, 05-CV-598- DRH) 2007 WL 2710490.) The reasoning of these courts applies here. Special Materials provided a service. Johns-Manville determined what kind of asbestosit wanted, and the mining company putit into the stream of commerce. Special Materials simply brokered the sale. Its money was not even used, as wasthefinance lessor’s moneyin Arriaga. Special Materials played no role in bringing the vent pipe to the market, especially since crocidolite wasnotpart of the formula. Special Materials was not in any position to enhance public safety by exerting pressure on the South Africa mine that producedthe asbestos or on Johns-Manville in the manufacture of its pipes. And there is no continuing relationship between Special Materials 21 and the entities in the chain of distribution so as to adjust the costs of protection between them. Special Materials never owned the asbestos and never took possessionof it. Even though Special Materials received financial benefit from the brokerageactivities, its role was as facilitator. Asthe providerof a brokerage service, Special Electric should not be subject to strict liability and had no duty to warn. D. A GENERAL NEGLIGENCE CLAIM CANNOTBE SUSTAINED BASED ON COMPLAINT ALLEGATIONS RATHER THAN FACTS ESTABLISHED AT TRIAL The Court of Appeal held that the JNOV wasnotjustified because the jury verdict also found general negligence which the motion purportedly did not reach. It concluded that negligence other than failure to warn wasfound bythejury becauseof allegations in the complaint, arguments to the jury, and jury instructions. (Op. pp. 29-32.) However, allegations, arguments andinstructions are not evidence. Indeed, nowhere in Plaintiffs’ argumentsat trial did they assert negligence on any basis unrelated to failure to warn (see 16 RT 4703:24-4704:11), even after Respondent's counsel pointed this out in closing argument. (16 RT 4718:20- 4719:1.) The only evidence the Court of Appealcites is the supposedselling point that blue asbestos wassafer. However, as pointed out in Defendant's Court of Appeal brief (Respondent’s Brief at p. 12, 37), the only evidence of such a “selling pitch” was from a person wholeft the companyin 1973, before any asbestos was sold to Johns Manville. This person never sold any asbestos to Johns-Manville. (6 RT 1677:5-7, 1689:20- 25, 1692:22-24.) There is no evidence of any such pitch to Johns Manville or that it was aware of or influenced by any such pitch, and given John’s Manville’s admitted sophistication aboutall aspects of asbestos it would 22 not have made any difference. Moreover, Johns-Manville had a duty to warnaboutthe asbestosin its Transite pipe regardless of whetherit contained trace amounts of blue asbestos. The law required the same warning regardless of the type of asbestos used.* Thus, there is no nexus between any such supposedsales pitch and Johns-Manville’s warnings or Webb’s injuries. The alleged negligence has to be causally related in order to support a negligence verdict. As Justice Rothschild says, the majority’s argument “founders on the issue of causation.” (Dis. Op.at p. 11.) Further, marketing a productassafe, if it happened, is part and parcel of failing to warn about the product’s dangers. Such marketing,if it occurred, would be negligent only becauseit fails to warn. It is not evidence of general negligence other than failure to warn. The only evidence and argumenton negligence was onfailure to warn. Thus, the Court of Appeal erred in holding that Special Electric’s motions did not resolve the general negligence claim. E. TRIAL COURTS SHOULD HAVE DISCRETION AS TO WHEN THEY RULE ON MOTIONSFOR NONSUIT AND DIRECTED VERDICT AND PROCEDURAL ERRORS ARE HARMLESS WITHOUT PREJUDICE 1. THE COURT OF APPEAL WRONGLY JUDGED THE MOTIONS FOR NONSUIT AND DIRECTED VERDICT BY THE PROCEDURES APPLICABLE TO A MOTION FOR JNOV The Court of Appeal ruled that once a verdict is rendered the limitations on a court’s powerto enter a judgmentcontraryto it is controlled by the procedures for a motion for JNOV,evenif the motion actually addressed is a motion for nonsuit or directed verdict. (Op.at p. 15.) Plaintiffs did not advocate this position. Justice Rothschild states, 4 Special Electric asserted that the warning requiredforall asbestos (blue, white or brown) was the warning mandated by OSHA,andthatfederal preemption precludeda finding that the warning was not adequate. The ourt of Appeal did not decidethis issue. 23 “The majority cites no legal precedentfor that proposition, and I am aware of none.” (Dis. Op.at p. 10.) There is no requirementthat 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 was in].) And it wasplainly notthe trial court’s intent by deferring consideration of the motions to deprive Defendant of procedural rights (“the defense has been most circumspect in preserving their rights” [11 RT 3001:16-17]; and “there’s no question that Mr. Parker and his colleagues were vigilant and diligent.” [18 RT 6602:21-22].) The majority’s imposed waiverof proceduralrights and imposition of additional procedural hurdles, is itself a denial of due process. This ruling defies commonsense andthreatensto lengthen jury trials and the imposition on jurors. The trial court deferred ruling so as not to delay the trial and impose further on the jurors. (18 RT 6602:7-22.) The trial court pushed the parties to get through the evidence and did not want to stop thetrial so the parties could brief and argue the motions. Thisis commonin trials. Longtrials are a burden on jurors. Requiring the motionsto be ruled on before a verdict is rendered means at some point the trial will have to be halted so the motions can be addressed. Plaintiffs never objected to deferring the rulings; in fact they asked for more timeto brief the issues. (18 RT 6602:23-28; see also 11 RT 3003:28- 3304:3, 3005:26-27.) Plaintiffs should have raised any concerns with the trial court then, not on appeal. (John Norton Farms, Inc. v. Todagco (1981) 124 Cal.App.3d 149, 161 [failure to request right to reopen waivesthis right].) 24 2. THE COURT OF APPEAL ERRONEOUSLY TREATED THE MOTION FOR JNOV AS HAVING BEEN MADE SUA SPONTE The Court of Appeal majority treated the motion for JNOV as having been madeonthetrial court’s own motion, when,in fact, the trial court deemed Defendants’ motions to be a motion for JNOV. (2 App.at 383, 401.1.) The trial court was well within its discretion to deem the motions to be motions for JNOV. A JNOV motionis to be granted “whenevera motion for directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Code of Civil Procedure §629.) It functions the same as a motion for nonsuit or directed verdict and is based on the sameprinciples as a nonsuit or directed verdict. (Beavers v. Allstate Ins. Co., supra, 225 Cal.App.3d at 327.) The court’s power to grant a motion for JNOV is coextensive with the powerto grant a directed verdict. (Id. at 328.) Motions for nonsuit, directed verdict, and JNOVall serve to challenge the legal sufficiency of the evidence. Thus, it is appropriate to deem a directed verdict or nonsuit motion to be aJNOV motion. (See, e.g., Wilson v. County ofLos Angeles (1971) 21 CaLApp.3d 308, 311-13, 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].) 3. THE COURT OF APPEAL IMPOSED ERRONEOUS PROCEDURAL REQUIREMENTS ON A SUA SPONTE MOTION Treating the JNOV motionas if made sua sponte, the Court of Appeal ruled that it had to be madeonfive (5) days notice in writing specifying the grounds. (Op.at 13-14.) Since Code of Civil Procedure Section 629 25 contains no such requirementfor a written notice or specification of grounds, the Court looked to Section 1005(a)(13), making Section 1005's requirements apply. There is no authority imposing written notice requirements on sua sponte motions, and this ruling will create many issues for trial judges. 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. The Court also 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 those cases dealt with new trial motions wherethe applicable code section expressly requires orders to specify the reasons. No such requirementis foundin Section 629. Further still, Defendant’s motions whichthe trial court deemed to be motions for JNOV were in writing, specified the grounds, and were served well more than five days before the ruling. 4, CODE OF CIVIL PROCEDURE SECTION 659 DOES NOT REMOVE A COURT’S POWER TO GRANT A MOTION JNOV PRIOR TO THE TIME TO FILE A MOTION FOR NEW TRIAL The Court of Appeal held thetrial court’s ruling was “impermissibly premature” becauseit occurred before the expiration of the time to move for anewtrial. (Op. at p. 12-13.) However, Code of Civil Procedure Section 659 does not removethe “powerof the court” to rule on a motion for JNOVprior to expiration of the timeto file a motion for new trial. That phraseis not in the relevant sentence, but is elsewhere. (Dis. Op.at p. 9.) Whenonepart of a statute contains a term or provision, the omission of that term or provision from another part of the statute indicates the 26 Legislature intended to convey a different meaning. (People v. Gardeley (1996) 14 Cal4th 605, 621-22). A court may not rewrite a statute, either by inserting or omitting language, to make it conform to a presumedintent that is not expressed. (Cornette v. Dept. of Transportation (2001) 26 Cal. 4th 63, 73-74). The Court of Appeal has donesoin its opinion. Indeed, the purpose of synchronizing the motion for JNOV with the new trial 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. Moreover, that is not an issue with a motion for nonsuit or directed verdict, so there is no basis to apply that requirementto those motions as the Court of Appeal did. 5. PREJUDICE IS REQUIRED FOR REVERSAL It is fundamental to a reversal on procedural groundsthat the error be prejudicial. The Constitution allows reversal only if an examination of the entire cause showsthere has been a “miscarriage of justice.” (Cal. Const. Art. VI, §13.) Code of Civil Procedure section 475 requires that a court “must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which,in the opinion of said court, does not affect the substantial rights of the parties.” Further, it prohibits reversal “unless it shall appear from the record that sucherror, 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 if such error, ruling, instruction, or defect had not occurred or existed.” (Emphasis added.) Prejudice cannot be presumed. Hadthetrial court followed the procedure the Court of Appeal held should have been followed - stop the trial if necessary to make the ruling 27 pre-verdict or follow the timing and requirements for a JNOV-- the same result would have obtained. Thetrial court followed the procedureit did becauseit could see no benefit in more briefing. (“I don’t think anything important or consequential turns on whatthe style of the motionis at this point.” [18 RT 6935:13-15].) Its stated goal wasto get the matter decided on the merits, appropriately. (Jahnv. Brickey (1985) 168 Cal.App.3d 399, 405; Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal4th 424, 440 [disposition on merits preferred over procedural grounds].) Nodifferent result would have been probable if it waited until after judgment to rule or filed a written notice of motion and groundsfor a JNOV onfive days notice. Even Plaintiffs did notraise all these groundsoferror. 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 v. Rossini (1966) 247 Cal.App.2d 40, 46.) Nowheredoes the Court of Appeal address any 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. 28 VI. CONCLUSION The Court of Appeal majority has created new and unreasonable proceduraltrapsfor litigants and trial judges, and immeasurably expanded the scope of the duty to warn in conflict with prior California law. These issues more than satisfy the requirements of Rule 8.500(b)(1) of the California Rules of Court—“to secure uniformity of decision," and “to settle an important question of law." Special Electric respectfully requests that this Court grant review. Dated: April 22, 2013 BRYDON HUGO & PARKER af j é, dwdrd R.AHugo * ames C. Parker Jeffrey Kaufman Attorneys for Defendant/Respondent SPECIAL ELECTRIC COMPANY,INC. 29 CERTIFICATION OF WORD COUNT I certify that this document contains 8,054 words, including the footnotes but not including the tables, according to the Microsoft Word “word count” feature. 41Cenfrn— 7i JeffreyBLM 30 William B. Webb and Jacqueline V. Webb v. Special Electrict Company, Inc. In the Supreme Court of California California Court of Appeal, Second Appellate District Division One, Case No. B233189 PROOF OF SERVICE I am resident of the State of California, over the age of 18 years, and nota party to the within action. My electronic notification addressis service@bhplaw.com and my business address is 135 Main Street, 20" Floor, San Francisco, California 94105. On the date below, I served the following: PETITION FOR REVIEW on the following: Ted W.Pelletier Los Angeles Superior Court Law Offices of Ted W.Pelletier Civil Central West 22 Skyline Road 600 South Commonwealth Avenue San Anselmo, CA 94960 Los Angeles, CA 90005 Court of Appeals — Second Appellate District, Division One Ronald Reagan State Building 300 S. Spring Street 2nd Floor, Nort ower Los Angeles, CA 90013 X Byplacing the document(s) listed above in a sealed envelope an placing the envelope for collection and mailing on the date below following the firm’s ordinary businesspractices. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Underthat practiceit 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. Iam awarethat on motion of party served, service is presumed invalid if 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 April 22, 2013, at San Francisco, California. dadpauie Josh Tabisaura EXHIBIT A RECEIVED MAR 1 8 7033 BY U.S. MAIL BRYDON HUGO & PARKER CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE WILLIAM B. WEBBetal., | B233189 Plaintiffs and Appellants, ' (Los Angeles County Super. Ct. No. BC436063) v- COURT OF APPEAL - SECONDDIS" SPECIAL ELECTRIC COMPANY,INC., . IF lI lL, 18, 1D) MAR 14 2013 Defendant and Respondent. APPEAL from a judgment of the Superior Court ofLos Angeles County. John Shepard Wiley, Judge. Reversed and remanded with directions. Paul & Hanley, Dean A. Hanley, Anthony E. Vieira; Law Office of Ted W. Pelletier and Ted W.Pelletier for Plaintiffs and Appellants. Brydon Hugo & Parker, Edward R. Hugo, James C. Parker and Jeffrey Kaufman for Defendant and Respondent. In this action forstrict liability and negligence (among other causes of action) plaintiffs William Webb (Webb) and Jacqueline Webb (collectively the Webbs) sought damages for personalinjuries arising from conduct of defendant Special Electric Company,Inc. (Special Electric) (amongothers) in supplying and marketing products containing asbestos.! trial resulted in a jury verdict against the Webbsand for Special Electric on the Webbs’ productliability claim, and for the Webbs against Special Electric on the Webbs’claimsfor failure to warn and negligence. The verdict found damages of more than $5 million, holding Special Electric responsible to the Webbs for 18 percent of them. | . After the verdict was rendered and the jury was discharged, but before judgment was entered, the court heard and granted Special Electric’s pending pre-verdict motions for nonsuit and for directed verdict, and—deeming those motionsto bea motion for judgment notwithstanding the verdict judgment NOV or JNOV)—entered judgmentfor Special Electric. The Webbsappeal from the judgment. Wereverse. FACTUAL AND PROCEDURAL BACKGROUND Appellant, William Webb, was diagnosed with mesothelioma, which he attributed to his exposure to asbestos products during variousperiodsin his life.2 His evidence showedthat during his employment at Pyramid Pipe & Supply in Canoga Park, California (Pyramid), from 1969 through the late 1970s he regularly handled Transite pipe, an asbestos product manufactured by Johns-Manville at its plant in Long Beach, California, which contained a certain type of asbestos supplied to it by Special Electric 1 The Webbsalleged that Special Electric was responsible for the tortious conduct of various other entities with names such as Special Asbestos and Special Materials, Inc.- Wisconsin. Consistent with respondent’s concession in this appeal, and because any distinction between the various “Special”entities is not at issue here, we refer to them as “Special Electric” without distinction. _ * Mesotheliomais a form ofcancerthat growsin the mesothelium, a membrane that lines the chest cavity, the abdominal cavity, and the heart. It is causally linked to exposure to asbestos fibers. (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1135 & fn. 6.) (among other suppliers). Transite pipe was four inches in diameter, and camein five-foot and sometimes ten-foot lengths. It was typically used for water-heater venting. Webb had used no glovesor respiratory protection when handling the pipe. Pyramid boughtits Transite pipe from Familian, a pipe supply company. From approximately 1974 through 1980, Special Electric supplied to Johns- Manville about 7,000 tons of crocidolite (or “blue”) asbestos, a particularly dangerous type of asbestos. Although crocidolite asbestos was not part of the formula for Johns- Manville’s manufacture of Transite pipe, there was evidencethat crocidolite asbestos from discarded or scrap pipe was added to the mix for Johns-Manville’s Transite pipe. The Webbs’ Complaint The Webbs’ complaint alleged causes of action against Special Electric (among other defendants) for damages and loss of consortium. So far as is relevant here, Webb claimed liability for negligence andstrictliability, alleging that Special Electric was aware ofthe risks of injury and disease presented by use and handling ofits asbestos, that Webb was unawareofthose risks, and that Special Electric had failed to warn Webb or his employerofthose risks. The Webbsalso alleged Special Electric’s liability on theories other thanstrict liability and negligent failure to warn, including “researching, manufacturing, fabricating, designing, .. . distributing, .. . supplying, selling, ... marketing, . . . and advertising asbestos and asbestos-containing products” with knowledge ofthe resulting foreseeable risks of injury and death. Motion for Nonsuit After the close of the Webbs’ evidence Special Electric moved orally for nonsuit, supporting its motion with a brief filed a few days later. The motion targeted only “the ‘failure to warn cause of action, which runsacross both strict liability failure to warn as well as any theory under a negligence or commonlaw negligence theory of a failure to warn.” It asserted two grounds for nonsuit: Undisputed evidence showedthat all the asbestos shipped to Johns-Manville under Special Electric’s auspices had been packaged with a printed warning about the hazards ofasbestos, fulfilling its duty to warn. And Special Electric’s only relevant customer was Johns-Manville, undisputedly “one of the 3 most sophisticated companies in the U.S. when it came to asbestos and asbestos-related products”; the sophisticated user doctrine therefore “absolves Special Electric of a duty to warm.” Opposing nonsuit, the Webbs’brief argued that conflicting evidence indicates that not all theasbestos delivered to Johns-Manville bore the printed warnings;that the printed warnings did notsufficiently identify the dangers of handling asbestos; that nonsuit can be justified only by a failure of the evidenceto support the plaintiff's case, not byits failure to refute Special Electric’s affirmative “sophisticated user” defense; and that the sophistication of Johns-Manville, an intermediary user, cannot absolve Special Electric of its duty to warn Webb,a foreseeable downstream userof its asbestos. The trial court did not rule on the nonsuit motion. Instructions to the Jury? The jury wasinstructed that Webb claimed he was harmed by a product “distributed, manufactured, or sold” by Special Electric, that was defectively designed or did not include sufficientinstructions or warning ofpotential safety hazards. The court instructed the jury as to the factual elements required to find Special Electric liable under four legal theories: strict product liability for design defect,‘ strict liability failure to 3 Neither party claims error with respect to the instructions to the jury. The Appellant’s Appendix contains what purport to be copies of written instructions given to each juror, but provides nothing (apart from the record citations in the parties’ briefs) to identify their source, their authority, or who requested them. (See Cal. Rules of Court, rules 8.122(b)(3)(C), 8.124(b)(1)(B).) The reporter’s transcript reflects the instructions given orally. 4 The design-defect consumer-expectations claim required four factual elements: (1) that Special Electric manufactured, distributed or sold the asbestos;(2) that the asbestos did not perform as safely as an ordinary consumer would have expected; (3) that Webb was harmed while using the asbestos in a reasonably foreseeable way; and (4) that the failure of the asbestos to perform safely was a substantial factor in causing Webb’s harm. warn,” negligent design, manufacture, or supply of the asbestos,® and negligent failure to warn.” Motion for Directed Verdict On February 8, 2011, Special Electric filed a motion for directed verdictraising only liability based on strict liability theory. The motion arguedthatstrict liability theory was conclusively negated because the evidence showedthat Special Electric had acted only as a broker, outside of the chain of distribution of the asbestos supplied to Johns-Manville.8 The Webbsfiled their opposition to the motion during the jury’s deliberations. Thetrial court did not rule on the directed-verdict motion. 5 The claim that Special Electric failed to provide sufficient instructions or warnings of potential risks required seven factual points: (1) that Special Electric manufactured, distributed, or sold the asbestos; (2) that the asbestos had known or knowable potential risks; (3) that those risks presented a substantial hazard tousers; (4) that ordinary consumers would not have recognized the potential risks; (5) that Special Electric failed to adequately warn ofthe risks; (6) that Webb was harmed while using the asbestos in a foreseeable way; and (7) that the lack of sufficient warnings was a substantial factor in causing his harm. 6 Four factual elements were required to find Special Electric liable for negligence as a designer, manufacturer, or supplier: (1) that Special Electric had designed, manufactured or supplied the asbestos;(2) that it was negligent in doing so; (3) that the Webbs were harmed;and (4) that Special Electric’s negligence was a substantial factor in causing the harm. 7 The seven elements required to establish Special Electric’s negligent failure to warn varied only slightly from those required to establish strict liability failure to warn. 8 California law imposesstrict liability in tort on participants in the chain of distribution of a defective product.(Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63; Vandermarkv. Ford Motor Co. (1964) 61 Cal.2d 256, 262-263.) Strict liability is justified as a means to spreadthe costs of injuries resulting from dangerous and defective products amongthe products’ manufacturers (Greenman v. Yuba Power Products, Inc.,. supra, 59 Cal.2d at p. 63), retailers that are an integral part of producing anddistributing the products (Vandermark v. Ford Motor Co., supra, 61 Cal.2d at pp. 262-263), andall other defendants in the products’ chain of distribution. (Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 88-89.) The Verdict On February 17, 2011, the jury returned its verdict. By special verdict, it found that Special Electric’s products suffered from no design defect. However, it also found that Webb was exposed to asbestos products sold or supplied by Special Electric, which had potential risks that were known or knowable to Special Electric, which presented a substantial danger that would not have been recognized by ordinary consumers;that Special Electric failed to adequately warn consumersofits products’ potential risks; and that both Special Electric’s failure to warn, and its negligence, were substantial factors in causing the Webbs’ harm. | | . The jury found that the Webbs had suffered economic and noneconomic damages resulting from mesotheliomatotaling $5,004,695, of which it attributed 18 percentto | Special Electric, 49 percent to Johns-Manville, 0 percent to Webb, and 33 percent to third parties. The jury was discharged. Renewed Motions for Nonsuit and Directed Verdict The next day, February 18, 2011, the trial court suggested it would deny Special Electric’s outstanding motions for nonsuit and directed verdict without hearing argument. Its minute order for that date indicates that in fact it did deny the motions. But contrary to the minute order, the reporter’s transcript showsthat the court instead deferred ruling on those motions at Special Electric’s request, while suggesting that Special Electric “wrap the whole thing into one” with motions for new trial and judgment NOV. WhenSpecial Electric said it would not movefor new trial and judgment NOVuntil after the nonsuit and directed-verdict motions had been denied and judgmenthad beenentered, the court scheduled a hearing on the pending motions. On March 10, 2011, the Webbs movedex parte for entry ofjudgment. Thecourt signed the judgment favoring the Webbs, but withheld its entry pending hearing on the pre-verdict motions. At the March 16, 2011 argument on the pre-verdict motions, the grounds argued by Special Electric for its nonsuit and directed-verdict motions were not the same as _ those stated in its initial briefs. Unlike the motionsit had earlier filed, it explained that its 6 nonsuit motion challengedits potential liability for failure to warn, based on the evidence that the asbestos shipped to Johns-Manvilleall bore warnings of asbestos’s dangers in terms that were adequate as a matter of law according to OSHA regulations approving them. And unlike its earlier directed-verdict motion, it contended that a directed verdict was justified because “both failure to warn and negligence don’t exist as against Special ' Electric in this case because there’s no legal duty to have warned whatsoever.” Thus according to Special Electric, both its motions contended that Special Electric had no duty to warn Johns-Manville of the dangers of asbestos, either because Johns-Manville had been warnedofthose dangers, or because the dangers were obvious and known to Johns-Manville, a sophisticated user of asbestos. Special Electric argued also that it had no duty to take measures to warn unsophisticated downstream users ofproducts containing its asbestos, such as Webb, because Special Electric could rely on Johns- Manville to provide those warnings. | The Webbs arguedin response that Special Electric’s duty to warn Johns-Manville wasnot fulfilled, because the evidence was conflicting about whetherall the asbestos shipped to Johns-Manville was packaged with warnings, and whether those warnings ~ were adequate. And they argued that Johns-Manville’s sophistication with respect to asbestos could not absolve Special Electric of its duty to warn Webb,becausethe | evidence did not show,and the jury did not find, that Special Electric had reasonably relied on Johns-Manville to undertake those warnings. | The Trial Court’s Rulings The court found tentatively that because Johns-Manville knew that asbestos is a dangerous product, Special Electric, a much smaller and less sophisticated entity, had no legal duty to warn Johns-Manville of those dangers. Warning Johns-Manville about asbestos, the court explained, is unnecessary, because “[t]elling Johns-Manville about asbestosis like telling the Pope about Catholicism.”? ° The court andthe parties assumed (perhaps with someevidentiary basis) that Special Electric was a firm of roughly 25 people, while Johns-Manville had worldwide 7 Atthe close of the March 16 hearing the court announcedits tentative intention to rule that Special Electric owed no duty to warn Johns-Manville about asbestos, and therefore had no liability to the Webbs. However, acknowledging its inability to find authority squarely supporting its intendedrulings, the court acceded to the Webbs’ request for an opportunity to further brief and arguethe issues. The court heard further argument on April 18, 2011, after which it granted Special Electric’s motions, and entered judgment.10 It identified two analytical groundsforits ruling: First, although it would have beenrelatively easy for Johns-Manville to provide warningsto users ofits products such as Webb,it would be unreasonable to obligate _ Special Electric to require Johns-Manville to do so." Alternatively, the court foundthat the bags in which the asbestos wastransported to Johns-Manville all bore warnings that satisfied any duty to warn.!? The court madeits ruling with a conscious awarenessofthe procedural posture in which its ruling left the case: “I’ve soughtin the procedureofthis case to presentthis legal question for a clear appellate shotso thatif I’m wrong, judgmentis simply entered for Mr. Webb and he does not have to endure any further fact-finding.” operations, its own asbestos mines, and a workforce that numbered in the range of 30,000. (See Travelers Indem. Co. v. Bailey (2009) 557 U.S. 137, 140, 129 S.Ct. 2195, 2198 [“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.”].) 10 Tn addition to rejecting the Webbs’ arguments on the motions’ substantive merits, the court also overruled.the Webbs’ extensive objections to the court’s procedureinruling on the pre-verdict motions after the verdict had been rendered, depriving them of the opportunity to offer additional evidence to overcomethe claimeddeficiencies in their case, and to respondto a formal written motion for judgment NOV. 11 The Webbsarguedthat Special Electric had done nothing to ensure that downstream users of products containing its asbestos would be warmedofits risks, and that it could © have and should have contractually required Johns-Manville to provide such warnings to users and purchasersofits Transite pipe. 12 The court madethis finding despite the existence of substantial conflictirig evidence on this point, which is discussedlater in this opinion. The court confirmed that entry of a judgment consistent with the verdict must occurfirst, “and then there would be a judgment notwithstanding the verdict, which would come along after,” adding “[t]hat’s in the alternative, and I proposethatthatall happen today.” The April 18, 2011 minute order recites that the nonsuit and directed- verdict motions “are treated as a Motion for New Trial and Motion for Judgment ' Notwithstanding the Verdict”; that they “are granted”; and that “[j]udgmentis entered as to the jury verdict and is entered this date.” Judgment and Appeal The court’s April 22, 2011 minuteorder recites that its “order on motionsfor _ judgment of nonsuit and directed verdict and judgment on special verdict and for nonsuit, directed verdict, and JNOVare signed and filed this date.”!3 The formal Order On Motions For Judgment OfNonsuit And Directed Verdict wasfiled April 22, 2011, grantingSpecial Electric’s motions for nonsuit and directed verdict, deeming those motions to bea motion for judgment notwithstanding the verdict, granting that motion, and ordering judgmentto be entered accordingly. Also filed April 22, 2011, was the court’s Judgment On Special Verdict AndFor Nonsuit, Directed Verdict, and JNOV, incorporating the jury’s special verdict, reciting the court’s April 18, 2011 grant of the nonsuit and directed-verdict motions, and, after deeming those motions to be a motion for judgment notwithstanding the verdict, then granting that motion as well.!4 The Webbsfiled a timely appeal from the judgmenton May 17, 2011. No protective cross-appeal wasfiled. (See Cal. Rules of Court, rule 8.108(g).) 13 The April 22, 2011 minute order alsoreflects the court’s denial of the Webbs’ ex parte application for clarification of the April 18 orders. 14 Although thetrial court repeatedly stated its intention to grant motions for both a new trial and judgment NOV,in the end it granted only judgment NOV. Accordingly, we ignore references to a supposed newtrial motion. (See Sturgeon v. Leavitt (1979) 94 Cal.App.3d 957, 964 [a trial court lacks powerto grant new trial on its own motion].) 9 DISCUSSION Webb’sappealraises three primary contentions: (1) Thetrial court erred, both procedurally and substantively, by entering judgmentfor Special Electric on the Webbs’ failure-to-warn claims notwithstanding the jury’s verdict in the Webbs’ favor. (2) Even if nonsuit or JNOV wereproper with respect to the failure-to-warn claims, the court erred in setting aside the verdict favoring the Webbsontheir claim that Special Electric was negligent in designing, manufacturing, or supplying the asbestos, because Special Electric’s motions and arguments addressed only the failure-to-warn claims, and the evidence supportedthe jury’s general-negligence findings. (3) The verdict for Special Electric on the consumer-expectations productliability claim is inconsistent with the finding that ordinary consumers would not have recognizedthe potential risks of Special Electric’s asbestos, and inconsistent with the only evidence on the subject, and therefore should besetaside. | - The Webbs’appeal challenges on both procedural and substantive grounds the order deeming Special Electric’s motionsfor nonsuit and directed verdict to be a motion for JNOV,andits order granting that motion (or any of them). We concludethatthetrial court erred in granting judgment notwithstanding the verdict, on both procedural and substantive grounds. We will order reinstatementofthe verdict and entry ofjudgment consistent with the verdict in the Webbs’ favor. The Trial Court Erred By Granting Judgment NOV A defendant may movefor nonsuit after the plaintiff's opening statementorat the close of the plaintiff's evidence. (Code Civ. Proc., § 581c.)!5 After all parties have completed their presentation of evidence, any party may movefor a directed verdictin its favor. (§ 630.) Andeither on the noticed motion of a party or on its own motion, the court is obligated to renderjudgment NOV whenevera directed verdict favoring the moving party would have been appropriate. (§ 629.) | | 15 All further statutory references are to the Code of Civil Procedure, unless otherwise indicated. 10 Each of these motionstests the legal sufficiency of the evidence proffered or presented by the opposing party; each is governedin thetrial court by the same evidentiary standard. (Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583; Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal-App.4th 1320, 1328 [nonsuit]; Estate ofEaston (1931) 118 Cal.App. 659, 662 [directed verdict]; Hauter v. Zogarts (1975) 14 Cal.3d 104, 110 [INOV]; Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 327 [JINOV].) A motion for judgment NOV maybe broughtafter a verdict has been rendered, but before judgment has been entered on the verdict. (§§ 629, 659.) This court reviewstrial court rulings on each of these motions by applying the same standard that governsa trial court’s hearing of the motion. (Hauter v. Zogarts, | supra, 14 Cal.3d at p. 110.) We evaluate the evidence for sufficiency in the light most favorable to the party opposing the motion, without consideration ofconflicting evidence. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839 [nonsuit]; Colbaughv. Hartline (1994) 29 Cal.App.4th 1516, 1521 [directed verdict]; Sweatman vy. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 [TINOV].) A. The Order Violated Statutory Procedural Requirements For A Motion For Judgment NOV. Seeing that a post-verdict motion for judgment NOV could place before the court the same substantive issues as those raised by Special Electric’s pre-verdict motions for nonsuit and directed verdict, the trial court deemed these motions to be interchangeable. (See Beavers v. Allstate Ins. Co., supra, 225 Cal.App.3d at p. 328 [court’s powerto grant judgment NOVis the sameas its power on motion for a nonsuit or for a directed | verdict].) The court reasoned that the substantive issues had been sufficiently aired in the post-verdict briefing and argument on the pre-verdict motions;it therefore could bypass further briefing and argument without prejudicing the Webbs’rights, conserving time and resources by simply treating the pre-verdict motions as though they were a post-verdict motion for judgment NOV, to which the same standards apply. Without a motion for judgmentNOVhaving been interposed, the court entered judgmenton the jury’s verdict 11 and ordered judgment NOV (and, somewhat inconsistently, nonsuit and a directed verdict as well) in Special Electric’s favor. A trial court may grant judgment NOV onits own motion. (§ 629.) However, before it may do so,it must provide the parties with at least five days’ notice of the ‘motion, and of the grounds on which the motion is brought; it may not grant a court- initiated motion for judgment NOV before the expiration of 15 daysafter entry of judgment, the time within which a party mayserveandfile a newtrial motion (§ 659); andit must grant judgment NOV,ifat all, before expiration ofits powerto rule on a new trial motion(§ 660). (Sturgeon v. Leavitt (1979) 94 Cal.App.3d 957, 963-964; see 7 Witkin, Cal. Procedure (Sth ed. 2008) Trial, § 442, p. 514.) _ We concludethat the court’s order for judgment NOV was procedurally impermissible, becausethe court lacked authority to grant judgment NOV whenit did, _andalso because the court-initiated motion for judgment NOV lacked written notice of motion andnotice of the grounds for judgment NOV,both ofwhich the code requires. 1. The order granting judgment NOVwas premature. The verdict in this case was rendered by the jury andfiled by the court on February 17, 2011, and the jury was discharged. Accordingto its minute order, the next day, February 18, 2011, the court denied the unheard motions for nonsuit and directed verdict. Thetranscript of proceedings for February 18, 2011 tells a different story, however: Whenthetrial court announcedits intention to “deny Special Electric’s motion madeatthe closeofplaintiff's case”(the directed-verdict motion), Special Electric requested a hearing onits nonsuit and directed-verdict motions, while declining to file a motion for judgment NOV. On April 18, 2011, the court deemed Special Electric’s pre-verdict motions to be “a Motion for New Trial and Motion for Judgment Not Withstanding the Verdict” and granted them, reciting that “[j]udgmentis entered asto the jury verdict and is entered this date.” And on April 22, 2011, the court signed andfiled its orders for entry of the 12 judgment, granting the motions for nonsuit and directed verdict, again deeming them to be a motion for judgment NOV,and granting that motion as well. The ruling was impermissibly premature. Section 659 prohibits a trial court from granting judgment NOVuntil the expiration of the time within which a motion for a new trial must be served andfiled, which is 15 days after notice of entry ofjudgment. (§ 659; Sturgeon v. Leavitt, supra, 94 Cal.App.3d at pp. 963-964.)!© But judgmenthad not yet been entered when the court ordered judgment NOV;the deadlineforfiling and service of a new trial motion—andtherefore earliest date on which the court was empoweredto grant judgment NOV motion—hadnotyet arrived. The Legislature has empowered — courts to grant judgment NOV within certain time periods. (Sturgeon v. Leavitt, supra, 94 Cal.App.3d at p. 962.) Judgment NOV was beyond the court’s authority to grant unless it acted within the legislatively imposed times. 2. The court-initiated motion for judgment NOV lackedthestatutorily required written notice of motion and notice ofits grounds. Section 1005 provides the times and methods for providing notice for all “proceeding[s] underthis code in whichnotice is required and noother time or methodis prescribed by law or by court or judge.” When the code requires notice but does not specify how notice must be given,the filing and service of written notice are required. (§ 1005, subd. (a)(13).) Section 629 provides that a court-initiated motion for judgment NOV maybe brought upon five days’ notice, without specifying how that notice must be provided. Its five-day notice requirement therefore is governed by section 1005, subdivision (a)(13)’s requirement that the notice ofmotion must be filed and served. The court wasrequired to 16 Tn Sturgeon v. Leavitt, supra, the court held that section 659’s limit on the time within which a newtrial motion must be brought does not limit the time within which a court-initiated motion for judgment NOV must be brought, because by its terms section 659 limits only the time within which parties, not the court, mustinitiate the motion. (94 Cal:App.3d at pp. 963-964.) That rule and that reason have no application to the issue addressed here, section 629’s limitation on the earliest time a court is granted the authority to order judgment NOV. 13 provide the parties with at least five days’ written notice ofits intention to hear a motion for judgment NOV,and of the grounds on which the motion would be based. (See Sanchez-Corea v. Bank ofAmerica (1985) 38 Cal.3d 892, 903, quoting La Manna v. Stewart (1975) 13 Cal.3d 413, 418 [oral specification of reasons cannot amountto substantial compliance with statutory directive that specification of reasons mustbein writing].) Thetrial court did notfile or serve any written notice of its intention to movefor judgment NOV. Thecourt first mentioned such a motion on March 16, 2011, when Special Electric advised the court that it would not moveforjudgment NOVuntil after entry ofjudgment on the jury’s verdict. On April 18, 2011, the court invited the Webbs’ counselto identify “what would be the practical harm”if-it were to enter judgment on the jury’s verdict, then to grant both judgment NOVand a newtrial based on Special Electric’s pre-verdict motions. Neither of these oral inquiries constituted notice (much less written notice) that the hearings being conducted were hearings on a motion for judgment NOV. | | The court purported to grant judgment NOV on its own motion the same day, and just three days Jater it actually signed the order and entered judgmentfor Special Electric notwithstanding the jury’s contrary verdict. But it lacked the statutory authority to do so, because the court did not comply with the Legislature’s explicit requirement that such an order must be preceded by five days’ written notice.!7 3. The judgmentin Special Electric’s favor cannot be saved by treating the order granting judgment NOVasthough it granted nonsuit or a directed verdict. The court’s alternative orders granting nonsuit and directed verdict cannot overcome the court’s failure to provide the notice that the law requires before the court 17 Because the failure to provide sufficient written notice of the motion for judgment NOVisfatal to the court’s authority to act, we do not address whether the grounds on which the court ultimately granted judgment NOV were the sameas those raised by Special Electric’s nonsuit and directed-verdict motions. 14 may grant judgment NOV.In section 629 the Legislature empowered trial courts to grant judgment contrary to a jury’s verdict, based on the same groundsthat might earlier have been available to it upon motions for nonsuit and directed verdict. But although the substantive grounds for each ofthese motions may be the same, their procedural requirements are not. Weneed not address whether a court’s powers to grant motions for nonsuit or directed verdict expire automatically when a verdict is rendered (as the Webbs contend), or may beexercised until judgment is entered (as Special Electric argues). In either event, the Legislature has imposed limitations on the court’s powerto enter a judgment contrary to that called for by the jury’s verdict. (§ 629.) These legislatively imposed requirements do not disappear if the motion is characterized as being for nonsuit or for a directed verdict, rather than for judgment NOV. Whatever the motion’s label, the requestedrelief is the same: entry of a judgmentcontrary to the jury’s verdict. Forthat reason,the legislatively imposed requirements for entry of a judgment notwithstanding the jury’s verdict must be met. | | B. The Order Granting Judgment NOV Was Unjustified On Its Merits. Even if prematurity of the order granting judgment NOV andthe absence ofthe notice required by law could be disregarded, the judgmentin Special Electric’s favor could not be sustained on its merits. The trial court’s ruling that Special Electric’s duty to warn Webbofthe dangersof its asbestos was discharged is not supported by the record, and thereforeis unjustified by the law. . Both Johns-Manville and Special Electric had a duty to provide reasonable warningsto users of their asbestos and asbestos products, about the dangers of handling asbestos. California law imposesthat duty on anyone whoputs a dangerous productinto the market. The Restatement Second of Torts, section 402A, providesin part: “‘(1) One ~ whosells any [dangerous] product . . . is subject to liability for physical harm thereby caused to the ultimate user or consumer... if. . . (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.’” This tule applies even if ‘“‘. . . (b) the user or consumerhas not boughtthe product from or 15 entered into any contractual relation with the seller.”” (Jenkins v. T&NPLC (1996) 45 Cal.App.4th 1224, 1228.) California has adopted the Restatement Second ofTorts, Section 402A. (Jenkins v. T&NPLC, supra, 45 Cal.App.4th at p. 1228; Johnsonv. ~ American Standard, Inc. (2008) 43 Cal.4th 56, 61 (Johnson). The raw asbestos supplied by SpecialElectric to Johns-Manville constitutes a “product” under the negligence and strict liability provisions of California law. (Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 29 (Stewart); Jenkins v. T&NPLC, supra, 45 Cal.App.4th at pp. 1228-1232 [“As a matter of law, a bulk supplier ofraw asbestos fiber incorporated into a finished product can be subject to strict products liability to an individual suffering from a disease caused by exposureto the supplier’s asbestos”].)18 | To justify its ruling that as a matter of law Special Electric’s duty to warn Webb of the dangers of its asbestos was discharged, thetrial court relied on the settled rule that sophisticated users of dangerous products need not be warned about dangers ofwhich they are already aware. (Johnson, supra, 43 Cal.4th at p. 67) [failure to warn of a risk that is already known to the user cannot be the legal cause of injury].) In Johnson, the court affirmed the rule, derived from Restatement Second, Torts, section 388, that suppliers of products that they know are dangerous maybeliable to their products’ foreseeable users for injuries caused by their products’ use, unless they have exercised reasonable care to provide a warning of the products’ dangers to those to whom the products are supplied. But while affirming that rule, the court adopted the “sophisticated user” defenseto liability on that basis, holding that sophisticated users need not be warned about dangers of which they are or should be aware. (Johnson, supra, 43 Cal.4th at p. 65; Stewart, supra, 190 Cal.App.4th at p. 28.) _ 18 The court apparently denied the Webbs’ requestfor an instruction to the jury thatit is the supplier’s duty to warn ultimate users of its product; however, that ruling has not been raised as an issue in this appeal. 16 Requiring Special Electric to tell a company like Johns-Manville about the dangers ofthe asbestos,the trial court concluded, therefore would be carrying “coals to Newcastle.” It concluded that the dangers of asbestos were obvious to Johns-Manville, and “Special [Electric] could not have harmed Mr. Webbbyfailing to tell Johns-Manville whatit already knew.” | In Stewart, the court affirmed a judgment holding a supplier of asbestos liable, on a failure-to-warn theory, for harm suffered by a user of a product of another manufacturer that incorporated the defendant’s asbestos. While confirming that “sophisticated users need not be warned about dangers ofwhich they are already aware or should be aware,” (190 Cal.App.4th at p. 28), the Stewart court also held that those who provide dangerous products do “‘have a duty to warn consumers aboutthe hazardsinherentin their products’”; and that is true even where—asin that case—it is downstream users and consumers, not the products’ initial purchasers, who are deserving of the warnings. (Ibid.; Johnson, supra, 43 Cal.4th at p. 64; see also Rest.2d, Torts, § 402A [One whosells dangerous productis subjectto liability for harm to ultimate user, even if the user “has not bought the product from or entered into any contractual relation with the seller”].) Thetrial court’s rulings that as a matter of law Special Electric had no duty to warn foreseeable users about its asbestos, and bore no liability to the Webbs, was based on a numberof conclusions: that warnings were printed on the packaging for most orall of the asbestos supplied by Special Electric to Johns-Manville; that as a sophisticated user of asbestos, Johns-Manville needed no warningsin any event; and that it would have _ been difficult or impossible for Special Electric to warn downstream users of Johns- Manville’s products containing its asbestos, such as Webb. Noonein this appeal doubts that Johns-Manville was a sophisticated user of asbestos, who needed no warning about its dangers. But whetherall the asbestos shipped to Johns-Manville had warnings, whether the warnings were adequate, and whether reasonable efforts to warn downstream - users could have been undertaken by Special Electric, are issues of fact. Special Electric has made no showingthat the evidence on these issues was undisputed, and apparently failed to persuade the jury. 17 Just as in Stewart, supra, 190 Cal.App.4th at pp. 29-30, Special Electric’s duty to warn users such as Webbofits asbestos was not necessarily discharged by its provision of warnings to Johns-Manville. And Special Electric obtained no instruction to the jury thatits duty to warn would be discharged if it were found to have provided adequate warnings only to Johns-Manville, an intermediary consumer. (Whetherit would have been entitled to such an instruction is an issue that is not raised by this appeal.) A numberofjury instructions address the Webbs’ failure-to-warn theories of liability against Special Electric. The jury was instructed that to recover underhisstrict liability and negligence theories, Webb mustprovethat Special Electric manufactured, | distributed, or sold a product with knownor knowable potential risks, which presented a substantial dangerto its users; that the product’s users would not recognizethe potential risks; that Special Electric failed to adequately warn or instruct about the product’s potential risks; and that the lack of sufficient instructions or warnings was a substantial factor in causing harm to Webb. The jury was also instructed to determine whetherfault on the part of “third persons,” or “others” had caused Webb’s harm, and to determinethe amountoffault and responsibility attributable to such a cause. The jury’s special verdict resolved these issues. The jury found that Webb had been exposed to asbestos sold or supplied by Special Electric; that the risks of its asbestos products were known or knowable to Special Electric; and that the risks of Special Electric’s asbestos products presented a substantial danger to consumers, that ordinary consumers would not recognize. The jury then found that Special Electric had failed to adequately warn ofthe potential risksof its asbestos products, that Special Electric was negligent, that Webb wasnot negligent, and that Special Electric’s negligence was a substantial factor in causing Webb’s harm. Theseinstructions and special verdict questions entitled the jury to find Special Electric liable to Webb for providing inadequate warnings aboutthe dangers ofits asbestos, on either (or both) of two factual theories: because the jury foundthat the warnings it gave Johns-Manville were inadequate; or because the jury found that Special 18 Electric failed to adequately warn Webb. Thespecial verdict did not ask the jury to identify on which of those theories its findings rested. Underthe instructions and the special verdict questions, the jury could have imposed liability on Special Electric based on either theory. The evidence does not show with certainty that all the packaging for asbestos shipped to Johns-Manville bore printed warnings, and whether the wording of the printed warnings was adequate was a disputed fact at trial.!9 Either way, the issue was for the jury to determine. Special Electric argues that its duty to warn consumers such as Webb evaporated because Johns-Manville also failed to warn consumers such as Webb.It arguesthatthe . jury was correctly instructed in CACI No. 411 that “[e]very person hasa right to expect that every other person will use reasonable care, unless he or she knows, or should know, that the other person will not use reasonablecare or will violate the law.”2 Based onthis jury instruction, Special Electric contends that it was entitled to expect that Johns- Manville would fulfill its duty to warn, in the absence of evidencethat Special Electric knewor should have knownthat Johns-Manville would breach that duty. It “could not have foreseen that Johns-Manville . .. would not warn aboutits Transite pipe. What could be more ‘highly extraordinary’?” Johns-Manville had a duty to warn,“and nothing indicated it would not.” Because there was no evidence that Special Electric knew that Johns-Manville would notfulfill its duty to warn usersof its asbestos, Special Electric 19 Despite Special Electric’s contrary contentions, the evidence was disputed, both as to whether warnings were on all the asbestos shipped by Special Electric to Johns-Manville, and whether the warnings were adequate. The jury resolved that issue in Webb’s favor, expressly finding that Special Electric’s warnings were not adequate. Thatfinding is binding on us, for we must construe the evidence most favorablyto the jury’s original verdict. (GAB Browser Services, Inc. v. Lindsey & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 423, disapproved on other grounds in Reeves v. Hanlon (2004)33 Cal.4th 1140, 1154 [in appeal from JNOV,appellate court construes disputed facts in appellant’s favor].) 20 Judicial Council of California Civil Jury Instructions, 2013 (CACTI). 19 contends, the trial court wascorrect in ruling that as a matter of law Special Electric could not be held liable for failing to warn Webb. Wedisagree. The Johnson and Stewart cases (as well as many others) hold that when a manufacturer or supplier places dangerous products into the stream of commerce, a duty arises to warn foreseeable consumers of those products abouttheir products’ hazards. Under thosecases, that duty is owed not just to the product’s initial purchaser, but also to a downstream user or consumer, such as Webb. (Stewart, supra, 190 Cal.App.4th at p. 28; Johnson, supra, 43 Cal.4th at pp. 64-65; see also Rest.2d, Torts, § 402A.) Asin any negligencetrial, it is the plaintiff's burdento prove facts sufficient to persuadethe jury not only that such a duty arose on Special Electric’s part, but also that Special Electric failed to perform that duty,that its failure to perform resulted in harm to the plaintiff, and the degree of harm attributable to that failure. In this case, the jury heard evidence, and found, that Special Electric had supplied a dangerous product, with knowledge that it was dangerous and with knowledge that consumers such as Webb would not know it was dangerous. Based on thesefacts, | Special Electric’s duty to warn potential consumers such as Webbaroseas a matter of law, establishing thefirst element of Webb’s primafacie case of negligence. The second element of Webb’s prima facie case—breach of duty—wasestablished by evidence that Special Electric did nothing to warn downstream users such as Webb about the dangers of its asbestos products. The jury heard evidence that Special Electric did not place warninglabels on the asbestos packaging it sent to Johns-Manville until it was required it to do so (by Johns-Manville and by governmentregulations) some (disputed) time in the 1970s. The evidence wasalso disputed both about whether, even after the warnings began,all the asbestos packaging bore the warnings, and whether the warnings were adequate.*! 21 There wasevidence that from 1974 to 1980, Special Electric supplied about 7,000 metric tons of blue asbestos to Johns-Manville’s Long Beach plant. Special Electric’s evidence wasthat beginning in 1974, the bags ofasbestos supplied to Johns-Manville bore warning labels. , 20 There was evidence, also disputed, that Special Electric had marketedits crocidolite asbestos as “much safer than chrysotile asbestos, or than fiberglass,” although it actually was more dangerous. From this evidence the jury was entitled to find, and did find, that Special Electric’s conduct—wrongly marketing its asbestos as safe, placing warnings on just some of the asbestos supplied to Johns-Manville, and making no effort to warn other potential users—was not adequate to fulfill its duty to warn about the dangers of its dangerous asbestos product, thereby establishing the second element of Webb’s primafacie case of negligence. The third elementofthe primafacie case of negligence—causation—was established by evidence that Webb was exposedto the asbestos supplied by Special- Electric, which caused his mesothelioma. Evidence was presented that Webb’s employer _bought Johns-Manville’s Transite pipe, which contained asbestos supplied by Special Electric from about 1974 to 1982, and that Webb handledthat pipe and cleaned up the "dustresulting from its breakage during that period.” By expressly finding that Webb But Special Electric’s evidence was contradicted. The jury heard other evidencethat the bags of blue asbestos supplied to Johns-Manville began having warnings only shortly before the Johns-Manville plant closed in 1981 and 1982. And according to the Johns- Manville employee who handled the asbestos received from Special Electric, not every bag of blue asbestos received by Johns-Manville bore a warning label. The Johns-Manville employee had testified in another forum that “all’’ bags of crocidolite asbestos bore warnings after the mid-1970s but in thistrial he testified that “J was misunderstood.” Here, he testified that sometime in the mid 1970s blue asbestos started comingin plastic bags instead of burlap bags. When asked if “every plastic bag” containing blue asbestos “also had a warninglabel,” his answer was “No.” The jury had the option to choose between these conflicting statements. 22 Substantial evidence supports the jury’s finding that Webb was exposed to Special Electric’s asbestos. For example, there was evidence that Special Electric supplied thousands of tons of blue asbestos to Johns-Manville between the mid-1970s and 1982, that Webb handled Johns-Manville’s Transite pipe for his employerthree to five times a week between 1975 and 1980, and that the Transite pipe Webb’s employer receivedfrom Johns-Manville had no warnings,at least until the early 1980s. Special Electric admitted in its argument to the jury that some of Special Electric’s asbestos was in pipe that went to Webb’s employerin 1978 and 1979, and argued that 2] suffered harm andthat Special Electric’s failure to warn wasa substantial factor in causing Webb’s harm (andseparately finding that Special Electric’s negligence was a substantial factor.in causing Webb’s harm), the third and fourth elements of the prima ' facie case were met. | Webbthusestablished all the elements of his prima facie case to the jury’s satisfaction. It was therefore Special Electric’s burdento present evidence and to persuade the jury that, notwithstanding the prima facie showing that Special Electric had breached its duty to Webbby failing to adequately warn aboutthe dangersofits asbestos, and that its breach had caused Webb’s harm, it nevertheless should notbe liable to Webb, ' for a numberofreasons. Special Electric argued that it should not be held liable to Webb, even though the jury believed the evidence that Webb was harmedbyhis failure to receive a warning about the dangers of the asbestos. It argued that it was entitled to rely on Johns-Manville to warn downstream users such as Webb. It argued that Webb’s harm therefore resulted from Johns-Manville’s breach of its own duty to warn, not from Special Electric’s breach of duty. Special Electric obtained jury instructions on this theory (in part over Webb’s objection). CACI No. 411 told the jury that Special Electric had a right to assumethat Johns-Manville would perform its own duties (apparently includingJohns-Manville’s own duty to warn users of its asbestos products) unless Special Electric had some reason to doubt whether Johns-Manville would do so. And the superseding cause instruction (discussed below) identified exactly what facts the jury would be required to find in order | to discharge Special Electric’s liability. The jury did apportion the liability for Webb’s harm amongthevariousentities that contributed to that damage. Underthe instructions, it was told to find whether Webb’sexposure to Special Electric asbestos was “negligible”or “insubstantial,” but not zero. Whenconstrued in Webb’s favor, this constitutes substantial evidence sufficient to support the jury’s determination that Special Electric is responsible for some portion of Webb’s harm. 22 Special Electric’s failure to warn was excused, becauseit had reasonably relied on Johns- Manville to perform that duty,?3 or because Webb’s harm was attributable to causes other than Special Electric’s negligence. And after deliberation, the jury assignedliability for just 18 percent of Webb’s harm to Special Electric, while holding Johns-Manville liable for 49 percent of the harm,and attributing the remaining 33 percent to others. (It found that Webb was not negligent, and attributed none of his harm to Webb himself.) In sum,thetrial court had nolegal basis (and articulated none) that could justify its determination that Special Electric owed no duty to warn Webb,as a potential user of its asbestos. Under the Johnson and Stewart cases, Special Electric’s duty to warn foreseeable potential users such as Webb (notjust the initial user, Johns-Manville) arose as.a matter of law from the jury’s fully supported findings. (Johnson, supra, 43 Cal.4th at p. 61; Stewart, supra, 190 Cal.App.4th at p. 28; Jenkins v. T&NPLC, supra, 45 Cal.App.4th at p. 1228; Restatement Second of Torts, section 402A [Supplier of dangerous product is subject to liability not just to the initial purchaser of the product but to the product’s ultimate user or consumer].) Because Special Electric’s duty existed as a matter of law, the jury was entitled to—and did—find from the evidence that Special Electric breached that duty and that its breach was a substantial factor in causing Webb’s harm, whether some other factors (such as superseding cause) terminated Special Electric’s share ofliability, and the appropriate apportionmentofliability between the variousactors. The instruction in CACTI No. 411, that every person has a right to expect that every other person will use reasonable care unless he or she knowsor should know that the other person will not, did not require the jury to find that Special Electric’s reliance(ifit existed) was reasonable, and did not justify thetrial court’s ruling that Special Electric 23 As discussed below, however, Special Electric never claimedto have relied on Johns- Manville to warn consumers, and the record contains ample evidence that any such reliance by Special Electric—if it had existed—would not have beenjustified. 23 had no duty to warn potential users, such as Webb,about the dangersofits asbestos.?4 There are a numberofreasonsthisis so. First, even if the instruction in CACI No. 411 afforded Special Electric a right to expect that Johns-Manville would use reasonable care (and therefore that it would warn potential users, such as Webb,ofthe dangersofits asbestosproduct), there was no evidence that Special Electric ever actually had any such expectation, and there was no evidencethat it did in fact rely on Johns-Manville’s performanceofits own duty to warn. In other words, evenif Special Electric had a right to expect that Johns-Manville would warn users such as Webb,its right to have that expectation is of no significance because there is no evidence it ever did havethat expectation. The question never arose whether | Special Electric knew or should have known Johns-Manville could not be relied uponto perform its duty to warn, because Special Electric did not rely upon Johns-Manville to do so.25 Second, the instruction in CACI No. 411 doesnottell the jury that if Special Electric reasonably expected Johns-Manvilleto perform its duty to warn users of asbestos such as Webb,it would then have absolutely no liability for Webb’s harm. Noris that whatthe law provides. It is the jury’s task to determine the extent to which Special 24 According to the use notes and authority for CACI No.411, that jury instructionrests on the generalrule that oneis not negligent for assuming he is not exposed to “danger which could come to him onlyfrom violation oflaw or duty” by another person, unless he has reasonto think otherwise. (Celli v. Sports Car Club ofAmerica, Inc. (1972) 29. - Cal.App.3d 511, 523, italics added [injured plaintiff does not assumerisk of harm that could happen only from someoneelse’s violation of duty].) Here, however, Special Electric could not reasonably have assumedthat its danger (ofliability) came only if Johns-Manville were to breachits duty. Under Johnson and Stewart, Special Electric owedits own separate duty to potential users of its asbestos, which arose as a matter of law without regard to Johns-Manville’s conduct. 25 Only Special Electric was in a positionto tell the jury that it had relied on Johns- Manville to fulfill its duty to warn potential users like Webb, and the reasons thatit believed its reliance on Johns-Manville was reasonable underthe circumstances. Only Special Electric had knowledgeofits expectations. The burden to produce evidence on that topic was Special Electric’s. (See Evid. Code, § 550.) 24 Electric’s reliance on Johns-Manville (or anyoneelse) justifies allocation of responsibility for Webb’s harm; that is what the jury did whenit allocated 18 percent to Special Electric, 49 percent to Johns-Manville, and 33 percent to others. Third, the presumption contained in CACI 411 is rebuttable. (Evid. Code, § 602.) The record contains substantial evidence that would be sufficient. to support a finding by the jury that Special Electric had ample reason to doubt that Johns-Manville was providing warningsto users of products containing Special Electric’s asbestos (if such a finding were required in orderto support the jury’s verdict). There was substantial evidence that Special Electric (like Johns-Manville, and anyoneelse in the business of selling asbestos in the 1970s) knew or should have known ofthe dangers of handling asbestos, and also knew that ordinary consumers could not be expected to know ofthose dangers. . For example, the Webbs’ expert, Barry R. Horn, M_D..,testified that beginning before the 1920s (and even more so by the 1930s, 1940s, 1950s, and 1960s), there was “an enormousliterature, just huge,” that occupational exposure to asbestos posed a great risk of cancer, and that this information was readily available to any company that “was concerned about whether[its] product .. . would cause disease,” (as any responsible manufacturer or supplier of asbestos products would be). The jury also heard evidence that Special Electric had instructed its sales force to marketits asbestos as “safer” than other types of asbestos, thoughin fact it was not. A former Johns-Manville employee testified that the asbestos supplied by Special Electric did not bear warnings until shortly before the Johns-Manville plant shut down in 1981 and 1982, and that Special Electric did not cometo the plant to inspect what Johns- Manville did about warnings. He characterized Johns-Manville’s conduct as “evil,” testifying that Johns-Manville “started to panic” in the mid-1970s, whenit “became aware that lawsuits were being filed concerning asbestos exposure.” And 1975 correspondencefrom Special Electric’s president discussed his continuing consultations with Johns-Manville’s and Special Electric’s attorneys about the potential liability of officers and agents of Special Electric and related asbestos suppliers, and the need to 25 identify each bag of asbestos as a hazardous material—indicating that such warnings were not previously given, even to Johns-Manville, despite the parties’ long experience as merchants of asbestos and asbestos products. Indeed, there was evidence that even Johns-Manville’s own workers had beenled to believe that asbestos was safe enough to be played with like “snowballs,”and that it did not begin to warn them (let alone users of its products) about the dangers of asbestos until sometimein the mid-1970s. Andthere was evidence that Special Electric had neither inquired of Johns-Manville about warnings to users of its asbestos products, nor had required that Johns-Manville place warnings to potential users in purchase orders or invoices. On this record, the jury wasentitled to infer that Special Electric could not reasonably have expected that Johns-Manville would warn users about the dangers of asbestos (even if Special Electric had expectedthat it would). The jury would be justified in concludingthat, far from reasonably relying on Johns-Manville to warn potential users ofit asbestos, Special Electric was itself engagedin an effort to conceal the dangersofits asbestos—dangers ofwhich both it and Johns-Manville were, or should have been, well aware. | The jury found that Special Electric, like Johns-Manville, knew or should have known that asbestos poseddangers ofwhich ordinary consumers such as Webb would be unawate unless they were warned. Under the evidence beforeit, the jury was entitled to conclude that Special Electric had notin fact relied on Johns-Manville (or anyoneelse) to warn potential users ofits asbestos, that Special Electric had no intention ofmaking any effort to warn potential users or obtaining Johns-Manville’s aid in doing so, and that, indeed, Special Electric and Johns-Manville together engagedin efforts to prevent asbestos users from becoming informed of its dangers. On this record, the trial court would not be justified in ruling that Special Electric could, as a matter of law, bear no responsibility for Webb’s harm. The jury wasalso instructed on the “superseding cause” doctrine. Under that instruction, given at Special Electric’s request, the jury was told exactly whatfindings would be required in orderto find that Special Electric’s liability to Webb was discharged 26 as a result of Johns-Manville’s failure to fulfill its own duty of care. The instructions stated that a plaintiff's harm might result from multiple causes (someconstituting negligence and somenot); that a defendant is responsible for harm that results from its negligence that is a substantial factor in causing the harm; and that a defendant “cannot avoid responsibility just because some other person, condition, or event was also a substantial factor” in causing the harm. The superseding cause instruction told the jury that it must find four facts in order to establish that Johns-Manville’s superseding conduct would absolve Special Electric from its legal responsibility to Webb. Specifically, the jury was instructed that “Special ElectricCompany, Inc. must proveall of the following: 41. That Johns-Manville Corporation’s conduct occurred after the conduct of Special Electric; 42. That a reasonable person would consider Johns-Manville Corporation’s conduct as ahighly unusual or an extraordinary responseto thesituation; 3. That Special Electric Company, Inc. did not know and had no reason to expect that Johns-Manville Corporation would act in a negligent and/or wrongful manner; and {4. That the kind of harm resulting from Johns-Manville Corporation was different from the kind of harm that could have been reasonably expected from Special Electric Company,Inc.’s conduct. Becausethe jury did not find that Special Electric was absolved of responsibility to Webb,it necessarily found that Special Electric had failed to establish one or more of these factual elements of its defense. Although notspecifically stated in the jury’s special verdict, perhaps it found that a reasonable person would not consider Johns- Manville’s failure to warn Webbto be highly unusual or extraordinary, or that Special Electric should have known that Johns-Manville might “act in a negligent and/or wrongful manner” with respect to its duty to warn.2® Andsurely the jury found that Special Electric had failed to prove that “the kind ofharm”resulting from Johns- Manville’s failure to warn was different from “the kind of harm that could have been reasonably expected” from Special Electric’s failure to warn. Nothing in the evidence 26 The jury was instructedthat in determining what conductis reasonable and whatis unreasonable, it could consider reasonable customs andpractices. 27 could justify a finding that the harm to Webbresulting from Special Electric’s failure to warn the end user about the dangers of its asbestos was different from the harm resulting from Johns-Manville’s failure to warn Webb. | But whateverthe jury found in rejecting Special Electric’s superseding cause defense in whole or in part, the instructions empowered it to make those determinations. The jury was properly given the opportunity to determine that Special Electric’s conduct was a substantial factor resulting in the harm suffered by Webb,andto find that it should bear responsibility for that harm. In allocating to Special Electric 18 percentofthe total liability for Webb’s harm,the jury did exactly as it was instructed to do. Wearenot called upon to confront whetherit would have been difficult or even impossible for Special Electric to effectively warn consumers ofits asbestos, as the trial court apparently concluded. That question was not madean issueattrial. Special Electric offered no evidence that it would have been difficult or impossible to warn Webb,nor evidencethat it had even considered that question. Special Electric did not _ request that the jury be instructedthata finding of reasonable efforts onits part would satisfy its duty to warn. Finally, Special Electric failed to request a finding by the jury, either that it could not reasonably have acted to warn Webb,orthat it had acted reasonably in failing to do so. . Without that evidence and that finding,the trial court’s conclusion that Special Electric’s duty to Webb wasdischarged as a matter of law is without basis. Thefacts underlying the trial court’s assumptions—if they existed—would have been elements of Special Electric’s defense againstliability on the Webbs’ failure-to-warn claims. Those facts would have established that its duty to warn consumersofits products’ dangers was dischargedor satisfied, because it had provided Webb with adequate warnings, becauseit had acted reasonablyin its failure to do so, or because Johns-Manville’s failure to warn had absolved Special Electric ofits obligation to warn. But underthe instructions it was given, the jury affirmatively found that the warnings were not adequate, and that Special Electric was responsible to Webb forthat failure. 28 Wedo not hold that an asbestos-supplier’s duty to warn users ofits asbestos cannot be obviated by proofthat the users needed no warning,orthat its duty may not be discharged by a showing of reasonable efforts to provide wamings, or by reasonable reliance upon others to do so. The effect of the trial court’s ruling was to hold that—as a matter of law—Special Electric had no duty to warn foreseeable users of the dangers of its asbestos, even though Special Electric knew or should have knownthat those foreseeable users would be unaware of the dangers. The conclusion that Special Electric had no such duty, or that its duty was discharged as a matter of law, is unjustified by the law andis contrary to the record in this case. C. Judgment NOV Was Unjustified With Respect To The General Negligence Verdict. . Wefind abovethat the trial court was not justified in setting aside the jury’s special verdicts that were grounded on the failure-to-warn theory. But even ifjudgment NOVhadbeenjustified on the failure-to-warn theory, the trial court’s refusal to enter judgment in the Webbs’ favor andits entry ofjudgment in Special Electric’s favor nevertheless would not have been justified. The failure-to-warn claims were not the only grounds on which the jury imposedliability on Special Electric. Thefirst cause of action of the Webb’s complaint, which names Special Electric as a defendant, alleges that Special Electric was negligent not just in failing to warn Webb ofthe dangers of its asbestos product, but also “researching, manufacturing, fabricating, designing, . . . distributing, . . . supplying,selling, ... marketing, . . . and advertising asbestos and asbestos-containing products” with knowledgeofthe resulting foreseeable risks of injury and death. And in arguing the case to the jury, the Webbs’ counsel explained that there were separate causes of action for failure to warn, for negligence, and for design defect. Consistent with the claims pleaded and argued, the jury was instructed not only on the failure-to-warn theory, but was also instructed that Special Electric could be found liable for failure to use reasonable carein designing, manufacturing or supplying its 29 asbestos product. (CACI. 1220; 1221.) The jury was instructed that to establish that liability, it must find that Special Electric “designed, manufactured, or supplied the product”; that it was negligent in doing so; that Webb was harmed;andthat Special Electric’s negligence was a substantial factor in causing the harm. Andthe jury was also instructed that in order to determine whether Special Electric used reasonable care in designing, manufacturing or supplying the product, it “should balance what [Special Electric] knew or should have known aboutthe likelihood and severity of potential harm ... against the burden of taking safety measures to reduce or avoid the harm.” The instructions did not require that the jury must makeany finding abouta failure to warn of potential risks in order to find that Special Electric was liable for acting negligently in designing, manufacturing or supplying the product. The jury’s special verdict included express findings—independentofits separate failure-to-warn findings—that Special Electric was negligent, and that its negligence was a substantial factor in causing the Webbs’ harm.?7 Thusthe jury found both that Special Electric was negligentin its failure to warn, and that it was negligentin its supply of the asbestos. Andit separately found that each of these forms of negligence was a substantial cause of Webb’s harm. - | Thetrial court granted Judgment NOV basedsolely on the ground that Special Electric’s duty to warn Johns-Manville and other foreseeable users of its asbestos was fully discharged. It apparently accepted Special Electric’s assertion that the only claimed basis for liability in the case was the failure to warn; that the separate finding of general negligence was merely a murorofthat same finding. But as noted above,the pleadings, the jury instructions, the argument to the jury, and the special verdict all submitted the question of Special Electric’s negligenceliability to the jury on a theory of general 27 The record doesnotindicate the source ofthe instructions, andthe final special verdict form was prepared by Special Electric. We are bound to presumethat Special Electric was responsible for both. (See Morehause v. Taubman Co. (1970) 5 Cal.App.3d 548, 559 [In absence of record showing which party requested jury instruction,it will be presumed to have been requested by party challenging it on appeal].) 30 negligence, relating to thedesign, manufacture, or supply of asbestos, in addition to negligence andstrictliability on the failure-to-warn theory. But Special Electric’s motions (for nonsuit and directed verdict) did not purport to challenge or addressthe | general negligence verdict, and thetrial court did not purport to rule onit. Onthis record, we conclude that the jury was entitled to find, as it did, that Special Electric wasliable to the Webbs for having supplied the knowingly dangerousasbestos, _ as well as for its failure to warn about its dangers. The Webbs’ opening briefidentified evidence in the record from whichthejury couldinfer that Special Electric had marketed its asbestos with unreasonable disregard for its dangers. There was evidencethattheblue crocidolite asbestos supplied by Special Electric was a particularly dangerous type of asbestos; butthat as a “selling point,” Special Electric’s principal had told its salesmen that its crocidolite asbestos was “muchsafer” than other types of asbestos, becauseit supposedly “doesn’t dust and get airborne andget in people’s lungs.” The evidence showedalso that although it had initially supplied its asbestos through an entity with the name “Special Asbestos,” it later changed the nameofthe supplying entity to “Special Electric”in order to distanceitself from what consumers were coming to learn was a dangerous product. a Special Electric contendsthatthis evidence showsno negligence apart from a failure to warn. But Special Electric does not explain why the cited evidence could not support the jury’s findings that Special Electric acted negligently by marketing and supplying a particularly dangerous form of asbestos while representing in its marketing efforts that this asbestos was less dangerous rather than more dangerous than other forms of asbestos. This evidence supports a species of negligence in the products’ supply and marketing that is somewhatdifferent from the failure to warn that Special Electric argued (andthetrial court found) was obviated by the printed warnings on the packaging to Johns-Manville. It tends to show not just that Special Electric failed to warn foreseeable users that asbestos is dangerous, but also that Special Electric attempted to affirmatively enhanceits marketing of particularly dangerous asbestos byconcealing the added danger and by marketing it as having lesser danger than other asbestos. 31 é Special Electric offers neither case law nor any other authority on the subject to support its contrary contention that this evidence shows only a failure to warn. Forthat reason, it is insufficient to support that conclusion. (Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 956 [Absence of cogent legal argumentorcitation to authority allows court to treat contention raised on appeal as waived].) We therefore concludethatthe trial court erred in granting judgment notwithstanding the jury’s verdicts of Special Electric’s liability forits general negligence in supplying the asbestos, independentfrom its liability for strict liability and negligent failure to warn. D. The Order Granting Judgment NOV Was Not Harmless Error. Special Electric contends that the judgmentin its favor should be affirmed even if the grounds on whichthetrial court granted judgment NOV were without legal basis. It argues that because there was no substantial evidence that Webb had been exposedto Special Electric’s asbestos, or that Special Electric’s breach ofits duty to warn had caused his harm,anyerrorin the trial court’s ruling was harmless. The Webbsdispute this contention on two independent grounds: They arguefirst that Special Electric’s failure to file a protective cross-appeal from the original judgment precludes our consideration of the issue. (Cal. Rules of Court, rule 8.108(g)(2); Eisenberget al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2012) | 3:169, pp. 3-73 to 3-74 (rev. #1 2012) [unless respondenthas filed protective cross- appeal from original judgment, the reinstated judgment is immunefrom challenge by respondent]; see Sanchez—Corea v. Bank ofAmerica, supra, 38 Cal.3d at p. 910 [respondent’s failure to cross-appealfrom original judgment waives any claim oferror in reinstated judgment].) And on the merits of the issue, the Webbs argue that in any event . the record reflects substantial evidence supports the jury’s determination that Webb was exposed to asbestos supplied by Special Electric and that his exposure wasa substantial factor in causing his harm. . . Our discussion of Webb’s primafacie satisfaction ofthe causation elementofhis negligence cause of action, above, dispels the argument that substantial evidence of causation is lacking. Wethere identify evidence that Webb was exposedto asbestos 32 supplied by Special Electric, which was a substantial factor resulting in his mesothelioma. Having found that Special Electric failed to provide adequate warnings of that danger, the jury was entitled to conclude also that adequate warnings would have led to a better outcome for Webb, and therefore that Special Electric’s failure to warn (as © well as its general negligence in supplying and marketingthe asbestos) was a substantial factor leadingto thatresult. The original judgment was a decision from which an appeal might have been taken, by virtue of rule 8.108 (g)(2) of the California Rules of Court. But no cross-appeal wastaken by Special Electric. In the absence of a cross-appeal, our reversal of the order granting judgment NOVrequires reinstatementofthe original judgment without further review: “If the party who prevailed underthe original judgment successfully appeals the order ... granting .. . judgment NOV,the original judgmentis automatically revived and is not subject to appellate review unless there has been a separate cross-appealfrom the originaljudgment.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2012) J 3:169, p. 3-74 (rev. #1 2012).) CONCLUSION Thetrial court erred, both procedurally and substantively, by granting judgment notwithstanding the jury’s verdict. The judgment must be reversed, automatically reinstating the original judgment entered on the jury’s verdict. Because the judgment must be reinstated in the Webbs’ favor, we do not consider their appeal from the jury’s verdict denying their consumer-expectation products-liability claim, which they made expressly contingent on this court’s failure to “otherwise reverse and order judgment”on the failure-to-warn or general negligence claims. 33 . DISPOSITION The judgment NOVis reversed. The matter is remanded with directions to reinstate the original judgment entered April 18, 2011 in favor of the Webbs and against Special Electric. The Webbs are awardedcosts on appeal. CERTIFIED FOR PUBLICATION. CHANEY,J. I concur:- MALLANO,P.J. 34 Rothschild, J., dissenting: The majority holds that it can be tort to fail to tell someone something they already know,and that it can also bea tort to fail to impose on someonea contractual duty to do something they already havea tort duty to do. I disagree with the majority’s legal conclusions. The majority also holds that a superior court acts in excess ofits authority whenit (1) grants a motion for judgment notwithstanding the verdict (JNOV)before expiration of the timeto file a motion for newtrial, or (2) grants a sua sponte JNOV motion without filing and serving written notice of the motion. Consequently, an order granting JNOV in either circumstance must be reversed regardless ofwhether it was correct on the merits, and regardless ofwhether the putative procedural errors were prejudicial. I disagree with the majority’s procedural holdings. . In my view, appellants have failed to carry their burden of showingthatthetrial court prejudicially erred. I therefore believe that the judgment should be affirmed, andI respectfully dissent. I. Factual and Procedural Background Special Electric, acting as a broker for a mine in South Africa, was one of several suppliers of bags of crocidolite asbestos fiber to Johns-Manville. Johns-Manville manufactured various products using the crocidolite fiber. William Webb contracted mesothelioma because of exposure to asbestos contained in Transite pipe that was manufactured by Johns-Manville at its plant in Long Beach. Crocidolite was not part of the formula for Transite pipe. Johns-Manville did, however, make Transite pipe partly from ground-up scraps of other pipes, and those scraps may have contained crocidolite, which may havebeen supplied by Special Electric. Johns-Manville sold Transite pipe to Familian Pipe & Supply, whichsold it to Pyramid Pipe & Supply. Webb, an employee of Pyramid Pipe & Supply, handled Transite pipe. It is undisputed that Johns-Manville knew the dangers of asbestos but, for at least the first several years of Webb’s exposure, provided no warnings concerning Transite pipe. Before the case was submitted to the jury, Special Electric filed written motions for nonsuit and directed verdict. Plaintiffs filed opposition to the nonsuit motion. The trial court did not rule on either motion and submitted the case to the jury, which returned its verdict on February 17, 2011, finding in favor of the Webbs onall but one oftheir claims. The court discharged the jury but did not immediately enter judgment on the jury ~ verdict. The day after the jury returned its verdict, Special Electric requested a hearing . (“oral argument”’) on its nonsuit and directed verdict motions, and the court set the hearing for March 16.’ On March 9, Special Electric filed a reply in support ofits _honsuit motion. On March 14,plaintiffs filed opposition to the directed verdict motion. The court heard both motions on March 16 butstill did not rule on them. Instead, the court continued the hearing for another month and allowedboth plaintiffs and Special Electric to file supplemental briefs, which they did. At the continued hearing on April 18, the court granted Special Electric’s motions and,“in the alternative,” entered _ judgment on the jury verdict, deemed Special Electric’s motions to be a motion for | " JNOV,andgranted it. Either way, the result wasajudgmentin favor of Special Electric on ail claims. | Il. The Majority’s Substantive Grounds for Reversal The majority offers two grounds on which Special Electric may be foundliable for failure to warn. J disagree with both. The majority’s first theory is that Special Electric may be found liable becauseit failed to warn Johns-Manville of the dangers of crocidolite asbestos. (See, e.g., maj. opn. ante, at p. 18 [Special Electric could be liable because “the warnings it gave Johns- Manville were inadequate”].) But the majority concedesthat “Johns-Manville was a sophisticated user of asbestos, who needed no warning aboutits dangers.” (Maj. opn. ante, at p. 17.) It is undisputedthatat all relevant times Johns-Manville was among the most knowledgeable businesses in the world concerning asbestos, Johns-Manville knew 1 The minute order for February 18, 2011, stated that Special Electric’s pending motions were denied, but the order conflicts with the reporter’s transcript, which is controlling. (in re Merrick V. (2004) 122 Cal.App.4th 235, 249.) 2 at least as much about the dangers of asbestos as Special Electric did, and there was consequently nothing that Special Electric could tell Jobns-Manville about the dangers of asbestosthat Johns-Manville did not already know. (Indeed, the warning that Special Electric allegedly failed to give Johns-Manville was actually requested by Johns- Manville, whose purchase orders required that the asbestos-be shipped in bags displaying particular warning language.) It is nota tortto fail to tell someone something they already know. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 67 [“thereis no need to warn of knownrisks under either a negligence orstrict liability theory”] (Johnson).) The majority’s second theory is that Special Electric may be found liable because it “failed to adequately warn Webb.” (Maj. opn. ante,at p. 19.) For several reasons,I disagree. First, plaintiffs have never contended that Special Electric could or should have personally warned Webb aboutthe dangersof asbestos, and on appealplaintiffs have expressly disavowed any such contention. When asked at oral argument how Special Electric was supposed to wam Webb,plaintiffs’ counsel answered, “By warning Johns- Manville,” and when asked whether plaintiffs contended that Special Electric should have warned Webbdirectly, plaintiffs’ counsel replied without hesitation, “Of course not.” Plaintiffs’ closing argumentattrial, plaintiffs’ briefing on the post-verdict motions, andplaintiffs’ appellate briefs are devoid of any suggestion that Special Electric could or should have warned Webbdirectly. Rather, plaintiffs’ position in both thetrial court and on appealhas been that Special Electric should have“contractually require[d] Johns-Manville” to provide adequate warnings with its products that contained crocidolite supplied by Special Electric. The majority cannot hold Special Electric liable on the basis of a theory that plaintiffs themselves have never advanced. Thus, when the majority concludes that Special Electric may be foundliable because it “failed to adequately warn Webb”(maj. opn. ante,at p. 19), it must mean that Special Electric may be foundliable becauseit failed to impose on Johns-Manville a contractual requirement to provide adequate warnings with its products.” Second, the majority’s theory is unprecedented and, in my view,is incorrect as a matter of law. Johns-Manville had a duty to warn users of its products concerning those products’ dangers. (See, e.g., Johnson, supra, 43 Cal.4th at p. 64.) “‘The general rule is that every person hasa right to presume that every other person will perform his duty and obey the law, and in the absence of reasonable groundto think otherwiseit is not | negligence to assumethat he is not exposed to danger which comesto him only from violation of law or duty by such other person.’ [Citation.]” (Harris v. Johnson (1916) 174 Cal. 55, 58-59; Celli v. Sports Car Club ofAmerica, Inc. (1972) 29 Cal.App.3d 511, 523.) Consequently, because there is no evidence that Special Electric had reason to believe that Johns-Manville would fail to provide adequate warnings concerningits products, it was reasonable as a matter of law for Special Electric to rely on Johns- Manville to provide them, because Johns-Manville was undera legal duty to do so. Special Electric therefore cannot be held liable for failure to impose on Johns-Manville a contractual duty to provide warnings, because Special Electric’s failure to impose such a contractual duty did not constitute a breach of any duty owed by Special Electric. The majority offers three responsesto the above, but each lacks support? Thefirst is that there is no evidence that Special Electric actually relied on Johns-Manville to ? If the majority’s conclusion that Special Electric is liable for failure “to adequately warn Webb”(maj. opn. ante, at p. 19) 1s based on someact or omission by Special Electric other than failure to impose on Johns-Manville a contractual requirement to provide warnings, then the conclusionis still incorrect because, as discussed post, there is no evidence of causation. 3 I note that here and throughout its analysis, the majority extensively discusses both the jury instructions and the questions on the special verdict form. Special Electric’s argument, however, is that on the record assembledat trial, plaintiffs”claimsfail as a matter of law, so this case should never have goneto the jury. Because I do not see how the majority’s observations about theinstructions and the verdict form could, in principle, be responsive to such an argument, I will not address them. If plaintiffs’ claims fail as a matter of law on this record for the reasons Special Electric has given, then Special 4 provide warnings, so the reasonablenessof such reliance “is of no significance.” (Maj. opn. ante, at p. 24.) The majority fails to recognize, however, that Special Electric’s failure to try to warn Johns-Manville’s customersis itself circumstantial evidence that Special Electric was relying on Johns-Manville to do so. More importantly, no evidence ofactual reliance is necessary, because the law entitled Special Electric to presumethat Johns-Manville would provide the warningsit waslegally obligated to provide. The majority cites no authority to the contrary. Moreover, commerce would be impossible without the operation of such a presumption. “When a 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. ‘Modern life 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 doso.’ (Rest.2d Torts, § 388, com. n, p. 308.)” (Persons v. Salomon North America, Inc. (1990) 217 Cal.App.3d 168, 178.) | The majotity’s second responseis that even if Special Electric actually and reasonably relied on Johns-Manville to fulfill its legal obligation to provide warningsto consumers like Webb, and even though plaintiffs have never contendedthat Special Electric could or should have provided those warningsitself, Special Electric can still be held liable for failure to warn Webb. (Maj. opn. ante, at p. 24.) Again, the majority provides no authority or reasoning in support of this extraordinary proposition. Were it true, it would eviscerate the century-old legal principle that “every person hasa right to presumethat every other person will perform his duty and obey the law.” (Harris v. Johnson, supra, 174 Cal. at p. 58.) Again, plaintiffs themselves have expressly and summarily rejected any suggestion that Special Electric should have warned Webb directly (“Of course not”). The majority’s third responseis that the record does contain evidence that Special Electric had reason to know that Johns-Manville would not provide warnings. But the Electric’s motions should have been granted, regardless ofwhat the instructions and the verdict form did or did not say. majority cites only evidence purporting to show that (1) both Special Electric and Johns- Manville knew that asbestos was dangerous, (2) a Special Electric salesman promoted crocidolite as safer than other forms of asbestos, (3) not all bags of crocidolite supplied by Special Electric to Johns-Manville carried warnings, and (4) Johns-Manville was “evil.” (Maj. opn. ante, at pp. 25-26.) None ofthat evidence has any tendency to show that, at any relevant time, Special Electric had reason to know that Johns-Manville would not provide the warningsthat it was legally obligated to provide. On the contrary, it was precisely because Special Electric knew that asbestos was dangerousthat it was entitled to presumethat Johns-Manville, with its undisputedly extensive knowledge, would warn its own customers aboutthose dangers. (Harris v. Johnson, supra, 174 Cal. at pp. 58-59.) The evidence that Johns-Manville was “evil” is likewise of no consequence, because there is no evidencethat at any relevant time Special Electric was aware that Johns- Manville was “evil.” Indeed, plaintiffs’ counsel expressly conceded the point at one of the hearings on Special Electric’s motions. Counselinitially arguedthat“[t]he undisputed testimony in the case is that Johns-Manville—andthis is testimony that Special [Electric] elicited—-was an evil company. There was no affirmative evidence to demonstrate reasonable reliance. There wasn’t.” But the court then asked, ““Was there testimony that Mr. Wareham [the founder, owner, and president of Special Electric] thought that Johns-Manville was evil?” Plaintiffs’ counsel answered unequivocally, “No.” In the remainderofthe discussion, plaintiffs’ counsel never claimed that there was any evidencethat at any relevant time Special Electric had any reason to believe Johns- Manville was evil or would violate its duty to warn. Both of the majority’s theories—Special Electric is liable because it failed to warn Johns-Manville, and SpecialElectric is liable becauseit failed to impose on Johns- | Manville a contractual duty to provide warnings—are incorrect as a matter of law for an additional reason: The record contains no evidence of causation to support either theory. There-is no evidence that Special Electric’s failure to warn Johns-Manville about the dangers of asbestos caused Webb’s mesothelioma. Moreover,there cannot be such evidence—Johns-Manville already knew everything that Special Electric knew about the 6 dangers of asbestos, so Special Electric’s failure to tell Johns-Manville whatit already knew cannotbe the cause of anything. (Cf. Johnson, supra, 43 Cal.4th at pp. 65, 67.) Andthereis no evidencethat if Special Electric had imposed on Johns-Manville a contractual duty to provide warnings, it would have made any difference. Thatis, there is no evidence that Johns-Manville would have heeded such a contractual duty any more than it heededits preexisting tort duty to warn. Plaintiffs have never argued that the record contains evidenceof such a causal link. It contains none. — In describing the putatively substantial evidence on each elementof plaintiffs’ failure to warn claims, the majority identifies three acts or omissions by Special Electric that, according to the majority, constituted breaches of Special Electric’s duty to warn: “wrongly marketing its asbestos as safe, placing warnings.on just some ofthe asbestos supplied to Johns-Manville, and making no effort to warn other potential users.” (Maj. opn.ante, at p. 21.) But, turning to causation, the majority cites no evidence that those breaches caused Webb’s damages. Thereis no evidencethatif Special Electric had not claimed that crocidolite is “safer” than other asbestos, then Webb would have been warned or would not have been injured. There is no evidence that if Special Electric had put warnings onall ofthe crocidolite it supplied to Johns-Manville, then Johns-Manville — -would have put warnings onits own products. And there is no evidence that had Special Electric made an “effort to warn other potential users” (for example, by contractually requiring Johns-Manville to provide warnings), those efforts would have made any difference. Instead, the majority cites only evidence that Webb’s mesothelioma was caused by asbestos supplied by Special Electric. (Maj. opn. ante, at p. 21 [causation “was established by evidence that Webb was exposed to the asbestos supplied by Special Electric, which caused his mesothelioma”’].) As a matter of law, that is an inadequate showing of causation. For example,if the defendant in an automobile collision breached the duty of care by driving a car with nonfunctioning headlights, then the plaintiff cannot prove causation merely by ~ demonstrating that the defendant’s car caused the plaintiff's injuries when they collided. Rather, the plaintiff must show that the defendant’s driving with nonfunctioning 7 headlights. causedthe plaintiffs injuries (because, for example, the accident happened in the dark ofnight rather than in broad daylight). This is not an obscure or novel legal technicality. It is hornbook law, andit has been in the Civil Code since 1872. (Civ. Code, § 3333 [recoverable compensatory damagesin tort cases are those “proximately caused” by the defendant’s “breach”]; 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 835, p. 52 [“the breach as the proximateor legal cause ofthe resulting injury”is an elementofactionable negligence]; Rest.2d Torts, § 430 [“In order that a negligent actor shall be liable for another’s harm,it is necessary not only that the actor’s conduct be negligent toward the other, but also that thenegligence of the actor be a legal cause of the other’s harm”]; see, e.g., Ladd v. County ofSan Mateo (1996) 12 Cal.4th 913, 917 [in a cause of action for negligence, the “breach” must be “the proximate or legal cause of the resulting injury”(italics and internal quotation marks omitted)].) Again, the record contains no evidence that any breaches by Special Electric—including those identified by the majority and by plaintiffs—caused Webb’s mesothelioma.‘ . . I. The Majority’s Procedural Grounds for Reversal The majority concludes that the trial court committed some proceduralerrors that require reversal. (Maj. opn. ante, at pp. 12-15.) In particular, the majority faults the trial court for (1) granting JNOV before expiration ofthe timeto file a motion for newtrial and (2) failing to file and serve written notice of the court’s sua sponte motion for JNOV.° The majority does not explain how either of those purported errors was prejudicial. In my view, both were undeniably harmless. Plaintiffs had ample notice and ‘ For this reason andothers, the defense of superseding cause is a red herring. Regardless ofthe presence or absence of any superseding cause, the record contains no evidence that the breaches identified by the majority (and byplaintiffs) caused Webb’s mesothelioma. 23 Becausethetrial court deemed Special Electric’s nonsuit and directed verdict motions to be a motion for JNOV,the majority treats that motion as a sua sponte JNOV motion. opportunity to be heard on all of Special Electric’s arguments, through multiple rounds of briefing and two hearings that were one month apart. The majority eliminates the need for a showing of prejudice by holding thatit was “procedurally impermissible”for the trial court to grant JNOV because the court’s procedural missteps deprived the court of “the authority”to rule as it did. (Maj. opn. ante, at pp. 12-14.) I disagree. Plaintiffs themselves have not advocated such a position, and I know ofno legal precedentforit. The only case cited by the majority is Sturgeon v. Leavitt (1979) 94 Cal.App.3d 957, but it does not support the majority’s position. The case holdsthat the trial court has authority to grant a sua sponte JNOV motion that was made after expiration of the time in which a party may movefor newtrial, and the case also observesin dicta that the court lacks authority to grant a JNOV motionfiled by a partyafter expiration ofthat period. (Id. at p. 962.) But the case does not hold that a court lacks authority to grant a sua sponte JNOV motion before the expiration ofthat period. The distinctionis significant, because Code of Civil Procedure section 629° expressly provides as follows: “The court shall not rule upon the motion for judgment notwithstanding the verdict until the expiration of the time within whicha motion for a new trial mustbe served and filed .... The powerofthe court to rule on a motion for judgment notwithstanding the verdict shall not extend beyond the last date upon whichit has the powerto rule on a motion for a new trial.” Thus, the statute expressly identifies the deadline for a JNOV ruling as relating to the “power of the court,”but the statue does not refer to an early JNOVruling in the same way, providing only that the court “shall not” grant JNOV before expiration of the time to move for new trial. I conclude thatin the present case the trial court did not act in excess of its authority by granting JNOV too early (assuming that the court did grant JNOV). The majority likewise cites no legal precedent for the proposition that the trial court’s authority to grant a sua sponte JNOV motionis limited by a requirement that § All subsequent statutory references are to the Code of Civil Procedure. 9 _ written notice of the motion be servedand filed. I know of no such precedent, andthe proposition is implausible. Written notice ordinarily does not function that way—parties can and often do waive written notice of various matters, but they cannot waive limitations on the superior court’s authority or jurisdiction. And technical violations of statutory notice provisions ordinarily are not reversible per se, but rather require a showing of prejudice. Again, no prejudice has been shownhere. In any event, it is not error to fail to file and serve written notice of a sua sponte | JNOV motion. The majority cites section 1005, subdivision (a)(13), for the proposition that “[w]hen the code requires notice but does not specify how notice must be given, the filing and service of written notice are required.” (Maj. opn. ante, at p. 13.) Section 629 requires notice of a sua sponte JNOV motion but does not specify how noticeis to be given, so the majority concludesthatfiling and service of written notice is required. But in fact subdivision (a)(13) of section 1005 requires the filing and service ofwritten notice only if “no other time or methodis prescribed by law or by court orjudge.” (Italics added.) Thus, if a court or judge prescribes a different form of notice, then _ failure to file and serve written notice is not errorat all, let alone prejudicial error. Finally, the putative procedural errors that the majority has identified relate only to JNOV motions. But Special Electric timely filed written motions for nonsuit and directed verdict, which thetrial court purported to grant on April 18. Plaintiffs contend that those motions were denied by operation of law whenthe jury returnedits verdict, so the trial court had no authority to grant them thereafter. Special Electric contends, to the contrary, that the motions werestill pending, and the court retained the authority to grant them until entry ofjudgment on the jury’s verdict. The majority does not resolve that dispute. Instead, the majority holds that, assuming for the sake of argumentthat thetrial court’s authority to grant a nonsuit or directed verdict continues after the jury returnsits verdict, the procedural requirements for a JNOV motion apply to any nonsuit or directed verdict motions thatare still pending whenthe verdict is rendered. The majority cites no legal precedent for that proposition, and [ am aware of none. Moreover, Special Electric did file and serve written notice of its nonsuit and directed verdict motions. Thus, assuming 10 that the majority is right that the procedural requirements for a JNOV motion applied retroactively to Special Electric’s pending nonsuit and directed verdict motions, the only requirementthat was violated wasthatthetrial court could notrule until expiration of the time to movefor newtrial. That is, the majority’s procedural holdingcreates the following proceduralsituation: (1) When Special Electric moved for nonsuit and directed verdict, the trial court had the power to grant those motions until the jury returnedits verdict; (2) once the verdict was rendered, the court ost authority to grant Special Electric’s motions; but (3) if the trial court had waited until the time to move for newtrial: had expired, the court would have regained authority to grant the still-pending nonsuit and directed verdict motions. Again, the majority cites no precedentfor this, and ] am awareofnone. Forall of these reasons, I conclude that the majority’s procedural holdings are incorrect. IV. The Substantial Evidence Issues The majority agrees with plaintiffs that the verdict against Special Electric on the _ general negligence claim can be sustained even if the verdicts on the failure to warn claims cannot. (Maj. opn.ante, at pp. 29-32.) Special Electric correctly points out, and the majority does not deny, that the only theory of negligence liability that plaintiffs argued to the jury was failure to warn. But the majority concludesthat the general negligence verdict can be sustained nonetheless because the record contains evidence that Special Electric marketedits crocidolite as “safer” than other forms ofasbestos, but it was actually more dangerous.’ (Maj. opn. ante, at p. 31.) This argument,like those previously discussed, founders on the issue of causation, because the record contains no evidence that Johns-Manville was ever aware of or influenced by any such marketing. Moreover, as discussed above, Johns-Manville was concededly among the most knowledgeable enterprisesin the world concerning all aspects of asbestos, and there was 7 Elsewhere, the majority asserts that Special Electric marketedits crocidolite as “safe.” (See maj. opn. ante, at p. 21.) The record contains no evidence of any such marketing. 11 concededly nothing Special Electric could tell Johns-Manville about the dangers or safety of asbestos that Johns-Manville did not already know.® Finally, the majority rejects Special Electric’s argument that because there is no ‘substantial evidence that Webb was exposedto asbestos supplied by Special Electric, any ‘other alleged errors in the JNOV were harmless. According to the majority, the record contains “evidence that Webb was exposed to asbestos supplied by Special Electric.” (Maj. opn. ante, at pp. 21-22, 32-33, & fn. 22.) In my view,the majority has not identified substantial evidence that Webb was exposedto asbestos supplied by Special Electric. The majority’s analysis of the evidenceis based on the assertion that Special Electric’s counsel admitted in closing argumentthat Transite pipe sold to Webb’s employer contained asbestos supplied by Special Electric, and that Webb wasthereby. - exposed to Special Electric’s asbestos. I disagree with the majority’s analysis for two reasons. First, an unsworn statement by counselis not evidence. Second, counsel did not admit that the Transite pipe obtained by Webb’s employer contained asbestos supplied by Special Electric. Rather, he admitted that the pipe contained crocidolite, but Special Electric was only one of several suppliers of crocidolite to Johns-Manville, as counsel repeatedly emphasized throughout his argument. As notedearlier, crocidolite was not part of the formula for Transite pipe. Rather, Transite pipe was made partly from ground-up scraps of other pipes, which may have contained crocidolite, which may have been supplied by Special Electric. The record contains no evidence (or concessions by defense counsel) that Webb was exposed to asbestos supplied by Special Electric. Neither of these substantial evidence issues has any bearing on the analysis in Parts II and IJ ofthis dissent. 8 In addition, the sole witness whotestified that he marketed crocidolite in this mannerleft Special Electric in 1973. There is no evidence that Special Electric supplied any crocidolite to Johns-Manville’s Long Beach plant before 1974. There is no evidence that any other Special Electric employee ever marketed crocidolite in this manner or was instructed to do so. Andthereis also no evidencethat, at any relevant time, Special Electric knew or should have knownthat crocidolite was more dangerous than other forms of asbestos. 12. V. Conclusion The majority holds that it can be a tort to fail to tell someone something they already know, andthatit can also bea tort to fail to impose on someone a contractual | duty to do what they already have a tort duty to do. The majority further holds that an order granting JNOV before expiration of the time to move for newtrial must be reversed even if the ruling is correct on the merits and the timing ofthe ruling caused noprejudice. Similarly, the majority holds that an order granting a sua sponte JNOV motion must be reversed without a showing of substantive error or prejudiceif the court did notfile and serve written notice of the motion. For the reasons discussed, both substantive and procedural, I cannotjoin the majority opinion. The judgment should be affirmed, and I respectfully dissent. ROTHSCHILD,J. 13 EXHIBIT B CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA . COURT OF APPEAL - SECONDDIS SECOND APPELLATE DISTRICT iS I iL Ss D) DIVISION ONE APR 102013 JOSEPH A. LANE Clerk WILLIAM B. WEBBetal., . B233189 Seno SER Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. BC436063) Vv. ORDER MODIFYING OPINION AND SPECIAL ELECTRIC COMPANY,INC., DENYING PETITION FOR REHEARING Defendant and Respondent. [no change in the judgment] The last sentence of the first full paragraph on page 31 of the opinion ofthis court, filed March 14, 2013,is modified to read as follows: | The evidence showedalsothat although the entity that had initially supplied the asbestos was named “Special Asbestos,”the ownerofthat entity had changed the | _ entity used to supply asbestos to “Special Electric,” inferably in orderto distance itself from what consumers were coming to learn was a dangerousproduct. In all other respects the opinion remains unchanged. This modification does not effect a change in the judgment. Respondent’s Petition for Rehearing filed March 29, 2013 is denied. MALLANO,P.J. CHANEY,J. Edward Roger Hugo . Brydon Hugo & Parker 135 Main Street 20th Floor San Francisco, CA 94105-1812 Case Number B233189 Division 1 , WILLIAM B. WEBBet al., Plaintiffs and Appellants, v. SPECIAL ELECTRIC COMPANY,INC., Defendant and Respondent. RECEIVED APR 15 2013 BY U.S. MAIL BRYDON HUGO & PARKER