WEBB v. SPECIAL ELECTRIC COMPANY

Respondent’s Reply to Answer to Petition for Review

Cal.May 23, 2013

$209927 In the SUPREME COURT OF 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 SUPREME COURT Poth WILLIAM B. WEBB AND JACQUELINE V. WEBB, ED APPELLANTS, MAY 23 2013 V. KA i Frank A. McGuire Clerk SPECIAL ELECTRIC COMPANY, INC., Députy pu RESPONDENT. REPLY TO ANSWERTO 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/Respondent Special Electric Company,Inc. S209927 In the SUPREME COURTOF CALIFORNIA AFTER A DECISION BY THE COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION ONE CASE NO. B233189 SUPERIOR COURT OF THE COUNTY OF LOS ANGELES, CASE NO. BC436063 HON. JOHN SHEPARD WILEY WILLIAM B, WEBB AND JACQUELINE V. WEBB, APPELLANTS, Vv. SPECIAL ELECTRIC COMPANY,INC., RESPONDENT. REPLY TO ANSWER TO 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/Respondent Special Electric Company,Inc. IL. IT. IV. VI. TABLE OF CONTENTS Page(s) INTRODUCTION. 0. eccccccscssessssceesnessssssssssscsecsscsssesssecsesessesssssesasateeeasereaes 1 REVIEW IS WARRANTED TO SECURE UNIFORMITY OF DECISION uuueeeceeeeeseeeeeceeseneeaes 3 REVIEW IS WARRANTED TO ADDRESS IMPORTANT QUESTIONSOF LAW wuncccecccsessessesessesseesecssscsecsceesesssseseeessseesaeneeneeees 7 THE GENERAL NEGLIGENCE VERDICT WAS BASED ONLY ON ALLEGED FAILURE TO WARN...ecceceeeeesseeeteteeeteresseeesesesses 9 THE PETITION DOES NOT MISSTATE THE FACTS OR TSSUES00.eceseeeeesecsseeeseeessesenescesecsaesacsecsassessecaceaeesseseacesseeaseaseeesesaessecaeeasens 12 CONCLUSION ...eeeeseeeeeessseneeseeserseeeesseaseasesceesseceaseasaseeseesaeenesarsaeeats 14 TABLE OF AUTHORITIES Cases Page(s) Ar8o8 v. General Electric Co. 1998) 61 Cal.App.4th 830 oo...csesscsessesessesessessenssscsessessessesscensesenseaeeteey 6 Beavers v. Allstate Ins. Co. (1990) 225 CaLApp.3d 310...cecessessssesssesscesessesseassssssassasassenseeseesenees 8,9 Blackwell v. Phelps Dodge Corp. (1984) 157 Cal.App.3d 370.Leseuseuccesescesscssuscessessesecesecesusecccesscsecceeessasecesncceseseesaas 6 DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329 vccsscssssesscrscscessssssesesscsrerscsstenstststesstsseseseeees 11 Fierro v. International Harvester 127 Cal.App.3d 862 ....ccccccecsssesssecscscsssssecsesscssssssssesessssssssessseseessssesseeesserscsaees 4 Garza v. Asbestos Corp., Ltd. (2008) 161 CaLApp.4th 651 occsesesecesenscnecsessnessensssssssenssseseessasenesesees 6 Groll v. Shell Oil, supra, 148 CalApp.3d 344 occecsccsssessssssesesecsessssesscsecssssesersssessessesessssesesseuseeessnees 5 Johnson v. American Standard (“Johnson”) (2008) 43 Cal.4th 56 wcesescsenesseeeesesssessenessereeseesessessceessecseeesesaseeees 2,3, 4,7 Lee v. Electric Motor Division (1985) 169 CaLApp.3d 375.0... ccssescsssssesssscsssesseeessssesscassssecsescsssesssasassasaseened 12 Persons v. Salomon North America, supra, 217 Cal.App.3d 168 oo... ccsscsscesessesesssseseseserseseessseesseseesesnseesersssesseseseesensases 5 Stewart v. Union Carbide Corp. (2010) 190 CalApp.4th 23 oceesssscctstesesseenessssssscssssesnseeseseseseesesseesssey 6 Walker v. Stauffer Chemical Corp. (1971) 19 CaLApp.3d 669.00. cccecssscnsssssersssecesessereassssesnseseseersnsenneass 5,10 Statutes Codeof Civil Procedure B47 ooecceccesscsssseeseenseneeseseteseeeseeessuseuseeasscessessensesessecasseeseeessecaessuesaeessaasesssasseeeesensens 14 ii S209927 In the SUPREME COURT OF CALIFORNIA AFTER A DECISION BY THE COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION ONE CASE No.B233189 SUPERIOR COURT OF THE COUNTY OF LOS ANGELES, CASE No. BC436063 HON. JOHN SHEPARD WILEY WILLIAM B. WEBB AND JACQUELINE V. WEBB, APPELLANTS, Vv. SPECIAL ELECTRIC COMPANY,INC., RESPONDENT. REPLY TO ANSWERTO PETITION FOR REVIEW I. INTRODUCTION ThePetition for Review (“Petition”) filed by Special Electric Company,Inc. (“Special Electric”) raises clear-cut groundsfor review, namely that the Court of Appeal decision is unprecedentedastoits procedural and substantive holdings, and creates conflicts with existing case law from this Court and other Courts of Appeal. These raised are important questions of law that will affect numerous pendingcases, and will arise again and again. They deservethe attention of this Court. The Court of Appeal decision misstated whatthe trial court did, and then ruled it procedurally improper despite the lack of any appellate precedentor statutory authority, and then reversed the judgmentdespite the lack of prejudice. In creating this new law out of whole cloth, the Court of Appeal has seriously diminished the discretion of the trial courts to run jury trials efficiently, with no demonstrable corresponding reduction of prejudice. On the merits, the Court of Appeal vastly expanded a broker’s and componentsupplier’s duty to warn in conflict with Johnson v. American Standard (“Johnson”) (2008) 43 Cal.4th 56, 67, and many Court of Appeal cases, none of which Plaintiffs discuss in their brief. These cases are addressed in the Petition, and in the letters to the Court supporting review and depublication. In addition, the Court of Appeal’s Opinion neglected to consider the scope of products liability of a broker who doesnot manufacture the product and has no control overits distribution or safety. The duty to warn issue alone morethansatisfies the “settle an important question of law” standard for review. Further, despite Plaintiffs’ contention to the contrary, Special Electric expressly raised and supportedits positions on the erroneousruling of the Court of Appeal that the motions granted by the trial court did not address the general negligence verdict. That issue was raised and supported both before the Court of Appeal andin the Petition. Special Electric never waivedthis issue. Finally, the Court of Appeal’s inferences of conspiracy and concealment, unsupported by any actual evidence, are part of the problem, not a reason for denying review. The court’s comments on whatthe jury could have reasonably inferred from the evidence set the bar so low that future fact finders will be completely free to interpret wholly innocent behavioras sinister with no basis in the evidence. Il. REVIEW IS WARRANTEDTO SECURE UNIFORMITY OF DECISION Plaintiffs assert that the Petition lacks any analysis of the need for review to secure uniformity of decision, and assert that the Courtof Appealdid nothing novel. The vigorous dissent obviously disagrees, variously characterizing the majority opinion as “unprecedented,” “incorrect as a matter of law,” without “authority or reasoning,” and “extraordinary.” (Dissent at pp. 4, 5, 6.) A cursory review of the decisions cited in the Petition, which Plaintiffs do not address, demonstrates the fallacy of Plaintiffs’ position. Plaintiffs assert they did not argue and the Court of Appeal does not hold that Special Electric had to warn Johns-Manville. (Answerat 8.)! Yet, that is precisely what the Court of Appeal holds whenit says the jury was entitled to find Special Electric liable on either or both of two factual theories: the warnings given to Johns-Manville were inadequate or the failure to adequately warn Webb. (Op.at pp. 18-19.) Under the instructions and special verdict questions, “the jury could have imposed liability on Special Electric based on either theory.” (Op.at p. 19.)* The Court of Appealcites Johnson as holding that “Special Electric’s ! Plaintiffs’ assertion that they did not argue Special Materials had a duty to warn Johns-Manville is remarkable given their extensive arguments at trial and in the Court of Appeal directly to the contrary. Plaintiffs asserted that no warnings were given to jokns- anville and/or the warnings given were inadequate because they should have included cancer risks, and that the trial court erred in holding no warnings to Johns-Manville were required. (See Appellants’ Brief at 10-12, 47-50.) Those argumentsraised the issue about whether OSHA mandatedthe language of the warnings and preempted cancer warnings, which wasalso briefed by Special Electric but ignored by the Court of Appeal. (See Respondent's Brief at 20-22.) 2 The dissent also observesthat the majority offered two grounds on which Special Electric could be liable — failure to warn Johns-Manville andfailure to warn Webb.(Dissentat p. 2-3.) duty to warn foreseeable potential users such as Webb(notjustthe initial user, Johns-Manville) arose as a matter of law....” (Op. at p. 23. See also Op.at p. 20.) To the contrary, what Johnson holdsis that “sophisticated users need not be warned about dangers of which they are already aware.” (Johnson, supra, 43 Cal.4th at 65.) “[T]here is no need to warn of known risks undereither a negligenceorstrict liability theory.” (43 Cal.4th at 67.) The sophisticated user/obvious danger defense negates the causation elementof a failure to warn theory. Pre-existing “knowledge of the dangersis the equivalent of prior notice” (id. at 65), and failure to warn of a risk already known cannotbe a legal or proximate cause of injury. (Id. at 67.) Therefore, the Court of Appeal’s holding that the jury could determine whetherSpecial Electric’s warnings to Johns-Manville were adequate waslegally incorrect. It did not matter whether warnings were on every bag or no bags or whatthose warnings said. Johns-Manville was concededly “a sophisticated user of asbestos, who needed no warning about its dangers.” (Op.at p. 17.) Further, the Court of Appeal’s holding that Special Electric had a duty to warn Webbis inconsistent with numerousdecisions. In Fierro v. International Harvester, supra, 127 Cal.App.3d 862, the court held that defendant wasnotliable to plaintiff for failing to warn plaintiff's employer, a sophisticated organization, about the hazards of running a powercable nearthe gas tank of the truck defendantsold. (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.) The Court of Appeal opinion also conflicts with other decisions that hold there is no duty to warn an end user when the manufacturer has no reasonable way to warn. Even Plaintiffs concede they did not argue Special Electric had to warn Webb directly. (Answerat p. 13.) The only argumentPlaintiffs made was that Special Electric should have contractually required Johns-Manville to provide warnings. Yet, the Court of Appeal holds that Special Electric had a duty, independent of Johns- Manville, to warn Webb. Asthe dissent says, the majority holds Special Electric liable on a basis not asserted by Plaintiffs. (Dissentat p. 3, 4.) There was no wayfor Special Materials to know whether asbestos attributed to it was in the products with which Webb cameinto contact. Thecrocidolite 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 generalor into particular batches sold to Familian and bought by Pyramid. There is no evidence in the record that suggests Special Materials could know whoJohns- Manville’s customers were (especially remote ones like Webb), no less which products they bought and whetherasbestos it brokered was in them. Nor could it put warnings on the asbestos that wasremoved from the bags at the Johns-Manville plant. Underthese circumstances, many other opinions find no duty to warn as a matter of law. (Groll v. Shell Oil, supra, 148 Cal.App.3d 344, 448- 49 [bulk supplier of BT-67 whose product was repackaged by manufacturer had no duty to warn ultimate consumer]; Persons v. Salomon North America, supra, 217 Cal.App.3d 168, 178 [no duty of ski binding manufacturer to warn ultimate user]; Walker v. Stauffer Chemical Corp. (1971) 19 Cal.App.3d 669 [no duty of bulk sulfuric acid supplier used by manufacturer of drain cleaner to warn ultimate consumer]; Artiglio v. General Electric Co. (1998) 61 Cal.App. 4th 830 [bulk supplier of silicone to manufacture of breast implants owed no duty to warn ultimate consumer]; Blackwell v. Phelps Dodge Corp. (1984) 157 Cal.App.3d 372 [supplier of sulfuric acid whofilled tank car had no duty to warn persons unloading the car about properventing]; Lee v. Electric Motor Division (1985) 169 Cal.App.3d 375 [supplierof electric motor used in productit did not design, manufacture, or package had no duty to warn enduserof that product that motor did not stop instantaneously]; cf. Garza v. Asbestos Corp., Ltd. (2008) 161 Cal.App.4th 651, 662 [asbestos supplier liable to ultimate user of product when there was no evidence that purchaser of asbestos was awareof the dangers of asbestos].) Plaintiffs and the Court of Appeal principally rely on the Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, which held an asbestos supplier liable for injuries to an ultimate consumer. In Stewart, however, there was no evidenceof the intermediate manufacturer’s sophistication and knowledge. The court does say that the sophisticated intermediary doctrine applies only if a “manufacturer provided adequate warnings to the intermediary.” (Id. at 29.) That comment makes no sense. The sophisticated intermediary doctrine is based on the logical conclusion that a sophisticated purchaser knowsor should know of the hazards without having to be warned. If warnings are a prerequisite to using the doctrine, the doctrine has no effect. Moreover, Stewart did not addressthe issue here as to the lack of knowledge or meansfor any warning to be given to the end user where neither the end user, nor the end product, could be knownbythe asbestos supplier. The Court of Appeal opinion conflicts with the obvious dangerrule adopted in Johnson and with mostother cases involving a supplier to a sophisticated manufacturer who buys a product knowingits hazards and where the supplier has no reasonable means of warning end users. The Court of Appeal opinion greatly expands the duty to warn, essentially eliminating recognized exceptions involving obvious dangersandthe right to rely on manufacturers to warn downstream users. This Court’s review is needed to secure uniformity of decision. II. REVIEW IS WARRANTED TO ADDRESS IMPORTANT QUESTIONSOF LAW The issuesraised in the Petition are important questions of law,as discussed aboveandin the Petition. As to the substantive rulings, the obvious danger/sophisticated intermediary issues are recurring. They are fundamental issues to products liability law in general and asbestos litigation in particular. The expansive view of the duty to warn imposed by the Court of Appealwill likely lead to morelitigation against more remote defendants. As the dissent notes, the majority opinion “would eviscerate the century-old legal principle that ‘every person hasa right to presumethat every other person will perform his duty and obeythe law.’”” (Dissent p. 5.) The majority opinion also dispenses with the need to show legal cause. (Dissent p.p. 6-8.) Contrary to Plaintiffs’ belief, these are important concepts impacting manycases. Additionally, the Court of Appeal failed to address the broker issue that wasraised in the trial court by motion for directed verdict and on appeal. This is an important issue for defining the universe of people subject to strict liability. It is a question that has not been previously answered directly in any California case, though manyoutof state cases hold brokers are not subjectto strict liability. Plaintiffs’ assertion that Special Electric abandonedthe issue has no basis. The issue wasraised in both sets oftrial court briefs on the motion for directed verdict and in Respondent’s Brief on appeal. (Respondent's Brief at pp. 22-27.) The motion for directed verdict was referencedin the trial court arguments and wasgranted bythe trial court. There is simply no supportfor the premise that the issue was abandoned. Further, the proceduralissues raised in the Petition are notlimited to this case as Plaintiffs suggest. The Court of Appeal’s unprecedented interpretation of the statutes concerning JNOV motionsandthe court's powerto rule on them,its imposition of written notice requirements for sua sponte motions, andits reversal for procedural error without any showing of prejudice, all have significance to many cases. Not only were the majority’s holdings erroneous and without legal foundation, as demonstrated by the dissent, they could have wide ranging impact. Plaintiffs’ argue the circumstances of this case are unique and will never be repeated, and the procedure that should be followedis specified in Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 328. Yet, that case demonstratesthe error of the Court of Appeal here andits potential impact on trials. Beavers recognized that the “trial court's power on motion for judgment notwithstanding the verdict has long beensaid to be ‘absolutely the same’ as its power on motion for a nonsuit or for a directed verdict.” (Id. at 328.) Not so, according to the Court of Appeal here, which held the trial court had no powerto rule on the JNOV motion whenit did. The impact of not allowing nonsuit and directed verdict motions to be handled later as JNOV motionswasplainly stated by the Beavers court. If the power to grant judgment notwithstanding the verdictis not coextensive with the power to grant a directed verdict, then trial courts will be compelled to dispose of issues on motion for directed verdict out of fear of losing the authority to enter an appropriate disposition at a later time. Such a result serves neither the policy in favor of expeditious and efficient resolution of issues nor the clearly expressed legislative intent that the authority on a motion for judgment notwithstanding the verdict be coextensive with the power to direct a verdict. (Id.) As Beavers states, the JNOVstatute, Code of Civil Procedure section 629, requires that JNOV be granted “whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Id. at 328-29.) Here prior motions for directed verdict and nonsuit were madeand procedurally should have been granted. The Court of Appealhas created inconsistency in the procedures wherethe Legislature has mandated consistency. Trial courts “will be compelled to dispose of issues on motion for directed verdict outof fear of losing the authority to enter an appropriate disposition at a later time.” (Id. at 328.) IV. THE GENERAL NEGLIGENCE VERDICT WAS BASED ONLY ON ALLEGED FAILURE TO WARN Plaintiffs assert there was an independentjury finding of general negligence that supports the reversal and wasnot challenged in the Petition. (Answerat 10-12.) This position ignores the discussionsin the Petition here (at pages 22-23) and in Respondent’s Brief (at pages 12, 37) and Motionfor Rehearing (at pages 11-12) below of precisely this issue. Asset forth in those discussions, the general negligence claim was based on nothing other than the negligentfailure to warn. The jury verdict found the product was not defectively designed by Special Electric, and there was no evidence (or argument) of any negligent “supply of asbestos” unrelated to failure to warn. The “evidence” whichPlaintiffs cites proves this point. First, they cite evidence that Special Electric sold an asbestos type that was particularly dangerous. It is not negligent, however, to sell a dangerous product. (Walker v. Stauffer Chemical Corp. (1971) 19 Cal.App.3d 669, 674 [“The merefact that bulk sulfuric acid is potentially dangerous is no reason to renderStaufferliable to plaintiff in the instant case.”].) What makes such a sale negligentis the failure to warn. Second,Plaintiffs assert Special Electric marketed the asbestos as safer than other types. However, the reasonsthis evidenceis inconsequential for showing negligence relevant here are fully explained in the Petition at pages 22-23, to which Plaintiffs do not respond. Third, Plaintiffs assert Special Electric sought to “distanceitself” from its productby selling it through the entity “Special Electric” instead of “Special Asbestos.” Plaintiffs do not cite to the record because thereis no supporting evidence. Instead, they cite to the Court of Appeal opinion as modified which states the nameof the entity changed from “Special Asbestos”to “Special Electric” “inferably in order to distanceitself from what consumers were coming to learn was a dangerous product.” (Op.at p. 31, as modified.) Initially, as the Court of Appeal was advised by the Petition for Rehearing, the entire premise is wrong since the name was never changed to “Special Electric’, but rather to “Special Materials.” (Petition for Rehearing at p. 9.) Further, there is no evidence on which to 10 basethe sinister inference the Court of Appeal makes. It is an inference from whole cloth. The court took a completely neutral fact and ascribed a motiveto it that is not based on anything in the record. Even a jury’s “arfinding must be based on substantial evidence which “’clearly implies that such evidence mustbe of ponderable legal significance. Obviously the word cannot be deemed synonymouswith ‘any’ evidence. It must be reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of the essentials which the law requiresin a particular case.” (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336). Here, there is only the Court of Appeal’s speculation. Next, even assumingthis ascribed motiveis true, the alleged effort to conceal the dangerin the productis part and parcelof the alleged failure to warn of the danger. It is not some other form of negligence. Finally, the name change could not have had anyeffect on Johns- Manville which already wasfully aware of the hazardsof asbestos or on Webb whonever knew whatasbestos wasin the Transite pipe. So noneofthis asserted negligence could possibly be causally related to Webb’s injuries. The dissent had no problem understanding Special Electric’s arguments as to why the negligence verdict was based only onfailure to warn, whichbelies the majority’s holding that Special Electric failed to explain away the cited evidence or provide cogentlegal argument. (Compare Op.at pp.31-32 with Dissent at pp. 11-12.) 1] V. THE PETITION DOES NOT MISSTATE THE FACTS OR ISSUES Plaintiffs final argument for denying the Petition asserts there are misstatements and issues not properly raised. (Answerat pp. 12-18.) Theseassertions are addressedin the order they appear in the Answer. 1. Plaintiffs take issue with statements in the Petition concerning warnings given. Every factual statementin the Petition to which Plaintiffs cite is supported byrecordcitations. The point is, however, that the sophistication of Johns-Manville is the equivalent of notice. “[T]he user's knowledgeof the dangersis the equivalent of prior notice.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 65.) Johns-Manville’s sophistication and lack of need for notice have been conceded both by Plaintiffs and the Court of Appeal. Therefore, the holdings that absolve a supplier upon giving notice or allow a supplier to rely upon the intermediary to provide warnings apply here because Johns-Manville’s sophistication and knowledgesatisfy the notice requirement. 2. There is no real dispute between the parties’ positions on whatPlaintiffs argued as to a duty to warn Webb. Plaintiffs acknowledge that they did not argue there was a duty to warn Webbdirectly. (Answer at p. 13.) They argued that Special Electric should have contractually obligated Johns-Manville to warn its end users. The Court of Appeal, however, went beyond that argument and held that Special Electric had a duty independentof Johns-Manville to warn Webb. Asthe dissent notes, thatis a significantly broader duty that not even Plaintiffs asserted. (Dissentat p. 3.) 3. The Court of Appeal held there was a duty to warn Johns- Manville and a duty to warn Webb.It failed, however, to apply legal principles to define the scope of that duty, such as the obvious danger 12 exception to the general duty to warn and theprinciple that presumes every other person will perform his duty and obey the law. Instead, in the guise of sustaining a jury decision on the question of breach,it allowed the jury to decide legal questionsas to the scope of the duties. These questions should never have been submitted to the jury in thefirst place. 4. While Plaintiffs now claim they did not agree to defer ruling on the pre-verdict motions until after the verdict, they can cite to no such statement in the record. To the contrary, the trial court knew whyit deferred ruling, to allow briefing and to not interruptthe trial, and to reach the merits of the motions, not to create procedural issues. (18 RT 6602:7-28.) The briefing schedule agreed to by the parties provided for filing Special Electric’s Reply Brief on the nonsuit motion on March9, 2011 (1 AA 151), and Plaintiffs’ Opposition to the directed verdict motion on March14, 2011 (1 AA 175), both after the verdict, and then at Plaintiffs’ request a later second roundofbriefs wasfiled. Plaintiffs waited until after the verdict to raise their procedural objections to timing. 5. Plaintiffs assert Special Electric is responsible for the proceduralissues created. That is untrue, as well as unfair. There was no claim by Plaintiffs prior to the verdict, when the parties discussed briefing the motions, that the pre-verdict motions would become mootafter the verdict. Thetrial court bent over backwards to avoid any procedural issues and rule on the merits. It gave the parties the opportunity to brief the issues, and stated on the record that “Mr. Parker and his colleagues were vigilant and diligent.” (18 RT 6602:21-22.) Clearly the trial court believed there were no proceduraltraps. Moreover, Special Electric never refused to move for JNOV. At the time of the exchange betweenthetrial court and counsel for Special 13 ye Electric, no judgment had been entered. Special Electric merely said thatit would not move for JNOVprior to judgment. Once the nonsuit and directed verdict motions were granted, there was no reason for Special Electric to move for JNOV. 6. Asthe dissent stated, the purported procedural errors “were undeniably harmless.” (Dissentat p. 8.) Plaintiffs’ analysis of prejudice is faulty. The proceduralerrors, according to the Court of Appeal, were not in granting the motions, but in how they were granted — without 5 days written notice setting forth grounds and prematurely. It is undeniable that if the trial court had given the 5 days written notice and deferred ruling until after expiration of the time for moving for a newtrial, as the Courtof Appealsays it should have done,thetrial court’s decision would have been the same. No different result would have been probable without those purported errors. (Code of Civ. Proc. section 475.) 7. Special Electric is not asserting the lack of exposure evidence as a separate groundfor seeking review. The dissent agreed with Special Electric that there wasinsufficient exposure evidence, which was an independentbasis on which to uphold the judgment. (Dissentat p. 12.) That is an issue subsumedwithin otherissues raised in the Petition. 8. Asdiscussed above, Special Electric never abandonedthe broker issue raised in the directed verdict motion. VI. CONCLUSION Review should be granted to secure uniformity of decision, and to settle important questions of law. The Court of Appeal decision errs in both its procedural and substantive holdings, and in doing so creates conflicts in the case law and confusion in the handling of pre and post-trial 14 motions. The strong dissent highlights the errors. The matter is deserving of this Court’s attention. Special Electric respectfully requests that this Court grant review. Dated: May 23, 2013 ARKER f£dward R. Hugo JamesC. Parker Jeffrey Kaufman Attorneys for Defendant/Respondent SPECIAL ELECTRIC COMPANY,INC. 15 CERTIFICATION OF WORD COUNT I certify that this document contains 4,079 words, including the footnotes but not including the tables, according to the Microsoft Word All [/ " Jathes C.Parker “word count” feature. 16 William B. Webb and Jacqueline V. Webb v. Special Electrict Company,Inc. In the Supreme Court of California California Court of A Gue, Case No. B2Division peal, Second Appeate District 189 PROOF OF SERVICE Iam residentof the State of California, over the age of 18 years, and nota party to the within action. Myelectronic notification addressis service@b plaw.com and mybusiness address is 135 Main Street, 20% Floor, San Francisco, California 94105. On the date below,I served the following: REPLY TO ANSWERTO PETITION FOR REVIEW on the following: Ted W.Pelletier Law Offices of Ted W.Pelletier 22 Skyline Road San Anselmo, CA 94960 Los Angeles Superior Court Civil Central West 600 South Commonwealth Avenue 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 and 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 aware that 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 May 23, 2013, at San Francisco, California. aluesul Josh Tabisaura —