Hernandezcueva v. E.F. Brady Co.

Decision Date22 December 2015
Docket NumberB251933
CourtCalifornia Court of Appeals Court of Appeals
Parties Jovana HERNANDEZCUEVA, Individually and as Successor in Interest, etc. Plaintiff and Appellant, v. E.F. BRADY COMPANY, INC., Defendant and Respondent.

Certified for Partial Publication.*

The Arkin Law Firm and Sharon J. Arkin ; Farrise Firm and Simona A. Farrise, for Plaintiff and Appellant.

Sherman Breitman, Jerry C. Popovich and N. Asir Fiola, Santa Ana, for Defendant and Respondent.

Crowell & Moring and Kevin C. Mayer, Los Angeles, as Amicus Curiae Coalition for Litigation Justice, Inc. in support of Defendant and Respondent.

Crawford & Bangs and E. Scott Holbrook, Covina, as Amicus Curiae for American Subcontractors Association, The Association of the Wall and Ceiling Industry, and The Roofing Contractors Association of California in support of Defendant and Respondent.


Joel and Jovana Hernandezcueva asserted claims for negligence and strict products liability, together with several related claims, against respondent E.F. Brady Company, Inc. (E.F. Brady), alleging that asbestos-containing products it distributed caused Joel Hernandezcueva's mesothelioma

. At trial, following presentation of the Hernandezcuevas' case-in-chief, the court granted E.F. Brady's motion for nonsuit on their claim for strict products liability and some related claims. After the jury returned special verdicts against the Hernandezcuevas on their negligence claim, they filed an unsuccessful motion for a new trial.

Appellant Jovana Hernandezcueva challenges the rulings on the motions for nonsuit and a new trial.1 In the published portion of this decision, we conclude the trial court erred in granting a nonsuit on the strict products liability claim because the Hernandezcuevas' evidence sufficed to show that E.F. Brady, while acting as a subcontractor in the construction of a commercial building, was in the stream of commerce relating to the asbestos-containing products, for purposes of the imposition of strict liability. In the unpublished portion of this decision, we conclude the court properly denied a new trial. We therefore affirm in part, reverse in part, and remand the matter for further proceedings.

A. Pretrial Proceedings

E.F. Brady is a subcontractor engaged in drywall installation and plastering. During the mid–1970's, E.F. Brady participated in the construction of a complex of buildings in Irvine for the Fluor Corporation (Fluor). In the 1990's, Joel Hernandezcueva worked as a janitor in the Fluor complex. In or after 2011, he was diagnosed as suffering from mesothelioma

, which is a cancer of the "pleura" of the lung.

In December 2011, the Hernandezcuevas initiated the underlying action against several defendants. In February 2013, E.F. Brady was added as a Doe defendant. The Hernandezcuevas' first amended complaint, filed May 6, 2013, asserted claims for negligence, strict liability, misrepresentation, intentional failure to warn, premises owner and contractor liability, and loss of consortium against numerous manufacturers, suppliers, and distributors of asbestos-laden products. The complaint alleged that Joel Hernandezcueva's mesothelioma

resulted from his exposure to asbestos from the defendants' products. The Hernandezcuevas sought compensatory and punitive damages.

B. Trial

By September 19, 2013, when the Hernandezcuevas began presenting their case-in-chief, only E.F. Brady and two other defendants remained in the action, Expo Industries (Expo) and Kaiser Gypsum Company (Kaiser).

1. Hernandezcuevas' Evidence2

E.F. Brady was founded in 1946. As a subcontractor, it focused on plastering and the installation of drywall and fireproofing materials. By the early 1970's, it employed 350 to 1000 "field employees," that is, plasterers, drywall hangers, and workers in related trades. In 1972 or 1973, E.F. Brady first became aware that asbestos in materials that its employees used was potentially hazardous. E.F. Brady never tested the materials it used to determine whether they contained asbestos.

In the early 1970's, Fluor initiated the construction of a complex of buildings in Irvine to house the engineering facilities of its southern California division. The complex was to occupy approximately 600,000 square feet on a 104–acre lot in Irvine. C.L. Peck was the project's general contractor. In August 1974, construction of the Fluor complex commenced.

According to Vincenzo Lombardo, who testified as the person most knowledgeable regarding E.F. Brady, the company submitted a bid to install the fireproofing, metal stud framing, and drywall. Because subcontractors were ordinarily required to provide construction materials, the bid included labor and material. Although E.F. Brady's profits arose from its provision of labor, the bid included the costs E.F. Brady would incur in purchasing the materials, plus a "one or two percent" charge for "escalation of cost[s] of the material[s]." E.F. Brady generally bought the drywall and fireproofing materials it installed from supply houses.

E.F. Brady was engaged as the drywall subcontractor for the Fluor complex project. Under the contract, E.F. Brady was to be paid $2,024,272. The contract obliged E.F. Brady to select the drywall and related materials in accordance with the general contractor's plans and specifications. The specifications called for asbestos-free fireproofing and insulation, but contained no analogous requirement regarding the drywall material and joint compound (also called "taping mud").

E.F. Brady installed drywall made by Kaiser, and initially used Kaiser's "all purpose" joint compound to finish the drywall joints. When that joint compound proved to be ineffective, E.F. Brady substituted a joint compound made by Hamilton. E.F. Brady bought the drywall and joint compounds from Expo, which delivered those materials to the work site.

William Longo, a material scientist, testified that Kaiser drywall and the Hamilton joint compound installed by E.F. Brady in the Fluor complex contained asbestos. Neither the drywall nor the joint compounds were labeled as containing asbestos. Warren Bozzo, who supervised E.F. Brady's work on the Fluor complex, testified he was unaware that the drywall and joint compounds used in the project contained asbestos.

Joel Hernandezcueva was born in 1968. From 1992 or 1993 to 1995, he worked as a janitor at the Fluor complex. During that period, areas of the complex were remodeled, and certain walls within the complex were continuously under repair. E.F. Brady did not participate in those activities.

Hernandezcueva's duties included cleaning up drywall debris and other rubbish from areas where E.F. Brady had installed the original drywall and fireproofing. While performing those duties, he inhaled dust. In or about 2011, he was diagnosed as suffering from mesothelioma


The Hernandezcuevas' experts testified that Joel Hernandezcueva's exposure to asbestos released from the products installed by E.F. Brady caused his mesothelioma

, which was well advanced at the time of trial. Longo stated that Hernandezcueva was exposed to asbestos from those products when he worked at the Fluor complex. Arnold Brody, a research scientist, testified that by 1974, it was well established that asbestos caused mesothelioma. According to Brody, there is no minimal threshold of exposure to asbestos below which the exposure is "safe." He opined that Hernandezcueva's exposure to asbestos from products installed by E.F. Brady significantly contributed to his risk of mesothelioma. Dr. William Salyer, a pathologist, also opined that to a reasonable degree of medical certainty, Hernandezcueva's mesothelioma was causally related to his exposure to asbestos. Dr. Reginald Abraham, a cardiovascular surgeon, testified that Hernandezcueva was likely to die within a year.

2. Motion for Partial Nonsuit

Following the completion of the Hernandezcuevas' case-in-chief, E.F. Brady filed a motion for partial nonsuit on their claims for strict liability, misrepresentation, and intentional failure to warn, as well as their request for punitive damages. The trial court granted the motion with respect to the claims for strict liability, misrepresentation, and intentional failure to warn, but denied it with respect to the request for punitive damages. The negligence claim remained.

3. E.F. Brady's Evidence

When E.F. Brady began presenting its evidence, it was the sole defendant participating in the trial. E.F. Brady presented testimony from Lombardo, who stated that during the pertinent period, the uniform building code did not prohibit the use of drywall and joint compounds containing asbestos.

E.F. Brady also presented testimony from Gary Paoli, who was employed by Raymond Interior Systems, which engaged in the installation of metal stud framing and installation in the Los Angeles area. In 1973, Raymond Interior Systems submitted an unsuccessful bid to perform the work on the Fluor complex project ultimately done by E.F. Brady. Paoli testified that asbestos did not become a "hot topic" among drywall and plastering contractors in Southern California until the 1980's. According to Paoli, he first learned that asbestos caused cancer

in the early 1980's.

4. Verdicts

In view of the ruling on the motion for partial nonsuit, the jury was instructed to return special verdicts relating solely to the Hernandezcuevas' negligence claim and request for punitive damages. The jury found that although Joel Hernandezcueva had been exposed to asbestos from a product installed by E.F. Brady, the company was not negligent regarding that exposure.

C. Judgment and Motion for a New Trial

On October 9, 2013, the trial court entered a judgment in favor of E.F. Brady and against the Hernandezcuevas on their claims. The Hernandezcuevas filed a motion for a new trial predicated on judicial misconduct, which the trial court denied.



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