Burch v. Certainteed Corp., A151633

CourtCalifornia Court of Appeals
Writing for the CourtBROWN, J.
Citation246 Cal.Rptr.3d 99,34 Cal.App.5th 341
Parties Michael B. BURCH et al., Plaintiffs and Appellants, v. CERTAINTEED CORPORATION, Defendant and Appellant. Michael B. Burch et al., Plaintiffs and Respondents, v. CertainTeed Corporation, Defendant and Appellant.
Decision Date15 April 2019
Docket Number A152252,A151633, A153624

34 Cal.App.5th 341
246 Cal.Rptr.3d 99

Michael B. BURCH et al., Plaintiffs and Appellants,
v.
CERTAINTEED CORPORATION, Defendant and Appellant.


Michael B. Burch et al., Plaintiffs and Respondents,
v.
CertainTeed Corporation, Defendant and Appellant.

A151633
A152252
A153624

Court of Appeal, First District, Division 4, California.

Filed April 15, 2019


Certified for Partial Publication.*

Kazan McClain Satterley & Greenwood, Justin Alexander Bosl, Ted W. Pelletier, Michael T. Stewart, Joseph Donald Satterley, and Arcelia L. Hurtado, Oakland, for Plaintiffs, Appellants and Respondents.

Schiff Hardin, San Francisco, and Neil Lloyd ; Dentons US, Lisa L. Oberg, San Francisco, Jules S. Zeman, Los Angeles, and Jennifer J. Lee, San Francisco, for Defendant and Appellant.

Gordon Reese Scully Mansukhani and Don Willenburg, Oakland, for Association of Defense Counsel of Northern California and Nevada; Thompson & Colegate and Susan Knock Beck, Riverside, for Association of Southern California Defense Counsel as Amici Curiae on behalf of Defendant and Appellant.

BROWN, J.

34 Cal.App.5th 343

Plaintiffs Michael and Cindy Burch sued defendant CertainTeed Corporation, an asbestos-cement (A/C) pipe manufacturer, after Michael Burch contracted mesothelioma following many years of installing A/C pipe throughout California. After trial, the jury returned a verdict for plaintiffs Michael and Cindy Burch on their claims against CertainTeed Corporation for negligence, failure to warn, strict product liability, intentional concealment, and intentional misrepresentation. The court entered judgment for plaintiffs holding defendant 100 percent liable for plaintiffs’ economic damages and 62 percent liable for their noneconomic damages according to the jury’s fault apportionment. The court granted judgment notwithstanding the verdict (JNOV) on plaintiffs’ intentional misrepresentation claim and denied JNOV on plaintiffs’ intentional concealment claim.

On appeal, plaintiffs argue that substantial evidence supports the jury’s verdict on

246 Cal.Rptr.3d 103

intentional misrepresentation, and that the court erred in allocating

34 Cal.App.5th 344

noneconomic damages according to defendant’s proportion of fault because Civil Code section 1431.21 (Proposition 51) does not eliminate an intentional tortfeasor’s joint and several liability for noneconomic damages. On cross-appeal, defendant argues that plaintiffs failed to introduce substantial evidence of intentional concealment, and that the trial court committed prejudicial error by failing to give a special jury instruction on the duty of Michael Burch’s employers to provide a safe workplace. In a consolidated appeal, defendant also challenges the trial court’s postjudgment denial of defendant’s motion to compel plaintiffs to execute acknowledgment of partial satisfaction of judgment.

We shall affirm the court’s order granting in part and denying in part the JNOV. In the unpublished portions of this opinion, we reject defendant’s arguments regarding the special jury instruction and its motion to compel plaintiffs’ execution of acknowledgment of partial satisfaction of judgment. In addition, we reverse the judgment because we hold that Proposition 51 does not eliminate an intentional tortfeasor’s joint and several liability for noneconomic damages.

I. FACTUAL AND PROCEDURAL BACKGROUND

Throughout the 1970’s, Michael Burch (Burch) worked in California installing A/C pipe. From 1970 to 1978, Burch worked mainly for J.C. Plumbing, a family-owned business, laying underground A/C pipe. He also worked for Valley Engineers around 1980. Until the mid-1970’s, Burch installed A/C pipe mostly at mobile home parks, and then he began working on utility pipeline public works jobs. In 1978, Burch worked for J.C. Plumbing installing new A/C pipe throughout the City of Cambria, which was a large job.

Defendant shared the U.S. market for A/C pipe with Johns-Manville and a few other brands, including Kubota and Nipponite. Before the Cambria job, Burch worked with various brands of A/C pipe, but the majority of his work was with defendant’s pipe. In Cambria, Burch worked only with defendant’s pipe. Defendant’s A/C pipe contained 14 percent to 15 percent asbestos, including chrysotile and crocidolite asbestos, with crocidolite being the most carcinogenic. Burch later contracted mesothelioma, and he and his wife subsequently sued defendant and numerous other defendants asserting negligence, failure to warn, strict product liability, and intentional tort claims.

Plaintiffs’ case proceeded to jury trial against defendant only, and the jury returned a special verdict for plaintiffs on their claims for negligence, failure

34 Cal.App.5th 345

to warn, strict product liability, intentional misrepresentation, and intentional concealment.2 The jury awarded plaintiffs $776,201 in economic damages and $9.25 million in noneconomic damages. It apportioned the fault of defendant and other joint tortfeasors as follows: 62 percent fault to defendant; 25 percent fault to Johns-Manville; 10 percent fault to J.C. Plumbing; 1 percent fault to Valley Engineers; 1 percent fault to Kubota; and 1 percent fault to Nipponite. The court entered judgment for plaintiffs, finding defendant liable for 100 percent of their economic damages ($776,201)

246 Cal.Rptr.3d 104

and 62 percent of their noneconomic damages ($5.735 million); plaintiffs served defendant with notice of entry of judgment on March 21, 2017.

Defendant timely filed a motion for a new trial and for JNOV on plaintiffs’ intentional concealment and misrepresentation claims. Plaintiffs, in turn, brought a motion to amend the judgment, arguing that Proposition 51 does not allow allocation of noneconomic damages according to a tortfeasor’s proportion of fault if the tortfeasor committed an intentional tort.

The trial court denied defendant’s motion for a new trial. On May 18, 2017, it denied defendant’s motion for JNOV on intentional concealment, but granted the motion on intentional misrepresentation. On June 9, 2017, plaintiffs appealed, and on June 13, 2017, defendant filed a cross-appeal. On July 14, 2017, the trial court granted plaintiffs’ motion to amend the judgment to eliminate defendant’s proportionate fault reduction for noneconomic damages. On August 7, 2017, the court entered an amended judgment for plaintiffs holding defendant 100 percent liable for plaintiffs’ economic damages ($776,201) and noneconomic damages ($9.25 million). Defendant appealed from this amended judgment, and plaintiffs cross-appealed.

Meanwhile, defendant attempted to partially satisfy the judgment. Plaintiffs rejected defendant’s check; thereafter, plaintiffs moved to challenge the sufficiency of defendant’s appellate bond, and defendant moved to compel plaintiffs to execute an acknowledgement of partial satisfaction of judgment. Defendant appealed the denial of its motion, and this court consolidated all of the parties’ appeals.

II. DISCUSSION

A. Appellate Jurisdiction

This case presents two jurisdictional questions that must be addressed before the merits. First, the court entered two judgments, and there can only

34 Cal.App.5th 346

be one final judgment. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) ¶ 2.21.) So, we must decide which is the final judgment and whether appellate jurisdiction exists over that judgment. Second, we must resolve plaintiffs’ challenge to our jurisdiction over defendant’s appeal of the court’s order partially denying its motion for JNOV.

1. The Judgments

The court entered a judgment on March 20, 2017 and an amended judgment on August 7, 2017. With respect to the first judgment, defendant timely moved for JNOV, and the parties timely appealed within 30 days of the trial court’s service of its order granting in part and denying in part defendant’s motion. Because the parties timely appealed from the original judgment, we have jurisdiction unless the amended judgment became the operative judgment.

After a judgment is entered, although clerical errors may be corrected at any time ( Code Civ. Proc., § 473, subd. (d) ), the only way for a court to correct judicial error is on a motion for new trial or on a motion under Code of Civil Procedure section 663 to vacate the judgment and enter a different one. ( Greene v. Superior Court (1961) 55 Cal.2d 403, 405–406, 10 Cal.Rptr. 817, 359 P.2d 249.) A clerical error results when the order or judgment misstates the court’s actual intent (i.e., error in recording the judgment rendered), and judicial error results when the order or judgment entered was intended, even though based on an error of law (i.e., error in rendering the judgment). ( Rochin v. Pat Johnson Manufacturing Co . (1998) 67 Cal.App.4th 1228, 1237–1238, 79 Cal.Rptr.2d 719.)

246 Cal.Rptr.3d 105

The change in the amended judgment here was not a simple clerical...

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18 practice notes
  • W. Pac. Elec. Co. v. Dragados/Flatiron, 1:18-cv-00166-NONE-BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 18, 2021
    ...fact; and (5) as a result of the concealment or suppression of the fact, the plaintiff sustained damage. Burch v. CertainTeed Corp. , 34 Cal. App. 5th 341, 348, 246 Cal.Rptr.3d 99 (2019).44 DFJV argues that there is no genuine dispute of material fact as to the second, third, and fourth ele......
  • Immobiliare, LLC v. Westcor Land Title Ins. Co., 1:19-cv-00680-LJO-SKO
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 13, 2019
    ...result of the concealment or suppression of the fact, the plaintiff sustained damage. [Citation.]" Burch v. CertainTeed Corporation , 34 Cal. App. 5th 341, 348, 246 Cal.Rptr.3d 99 (2019) (emphasis added). The Court begins with the preliminary element of duty to disclose.1. CAL's Duty to Dis......
  • W. Pac. Elec. Co. v. Dragados/Flatiron, No. 1:18-cv-00166-NONE-BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 18, 2021
    ...and (5) as a result of the concealment or suppression of the fact, the plaintiff sustained damage.Page 43 Burch v. CertainTeed Corp., 34 Cal. App. 5th 341, 348 (2019).44 DFJV argues that there is no genuine dispute of material fact as to the second, third, and fourth elements of duty, inten......
  • Levy v. FCI Lender Servs., Case No.: 18cv2725-GPC(WVG)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 6, 2020
    ...and (5) as a result of thePage 12 concealment or suppression of the fact, the plaintiff sustained damage." Burch v. CertainTeed Corp., 34 Cal. App. 5th 341, 348 (2019) (citation omitted). "The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary d......
  • Request a trial to view additional results
18 cases
  • W. Pac. Elec. Co. v. Dragados/Flatiron, 1:18-cv-00166-NONE-BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 18, 2021
    ...fact; and (5) as a result of the concealment or suppression of the fact, the plaintiff sustained damage. Burch v. CertainTeed Corp. , 34 Cal. App. 5th 341, 348, 246 Cal.Rptr.3d 99 (2019).44 DFJV argues that there is no genuine dispute of material fact as to the second, third, and fourth ele......
  • Immobiliare, LLC v. Westcor Land Title Ins. Co., 1:19-cv-00680-LJO-SKO
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 13, 2019
    ...result of the concealment or suppression of the fact, the plaintiff sustained damage. [Citation.]" Burch v. CertainTeed Corporation , 34 Cal. App. 5th 341, 348, 246 Cal.Rptr.3d 99 (2019) (emphasis added). The Court begins with the preliminary element of duty to disclose.1. CAL's Duty to Dis......
  • W. Pac. Elec. Co. v. Dragados/Flatiron, No. 1:18-cv-00166-NONE-BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 18, 2021
    ...and (5) as a result of the concealment or suppression of the fact, the plaintiff sustained damage.Page 43 Burch v. CertainTeed Corp., 34 Cal. App. 5th 341, 348 (2019).44 DFJV argues that there is no genuine dispute of material fact as to the second, third, and fourth elements of duty, inten......
  • Levy v. FCI Lender Servs., Case No.: 18cv2725-GPC(WVG)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 6, 2020
    ...and (5) as a result of thePage 12 concealment or suppression of the fact, the plaintiff sustained damage." Burch v. CertainTeed Corp., 34 Cal. App. 5th 341, 348 (2019) (citation omitted). "The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary d......
  • Request a trial to view additional results

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