Petitpas v. Ford Motor Co.

• Decision Date: 05 July 2017
• Docket Number: B245037
• Citation: 13 Cal.App.5th 261,220 Cal.Rptr.3d 185
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph PETITPAS, Plaintiff and Appellant, v. FORD MOTOR COMPANY et al. Defendants and Respondents.

13 Cal.App.5th 261

220 Cal.Rptr.3d 185

Joseph PETITPAS, Plaintiff and Appellant,

v.FORD MOTOR COMPANY et al. Defendants and Respondents.

B245037

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

Filed July 5, 2017

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

Dykema Gossett, John M. Thomas, Jill M. Wheaton, Ann Arbor, and Tamara A. Bush, Los Angeles, for Defendant and Respondent Ford Motor Company.

McKenna Long & Aldridge, Jayme C. Long, Frederic W. Norris and David K. Schultz ; Theodore J. Boutrous, Los Angeles, for Defendant and Respondent Exxon Mobil Corporation.

Selman Breitman, Los Angeles, Brad D. Bleichner, Jerry C. Popovich, Santa Ana, and Dennis M. Alexander for Defendant, Respondent and Intervenor Fireman's Fund Insurance Company.

COLLINS, J.

Plaintiffs Marline Petitpas¹ and Joseph Petitpas sued Ford Motor Company, Exxon Mobil Corporation, Rossmoor Corporation,² and others, alleging that exposure to asbestos caused by these defendants resulted in Marline's mesothelioma

. Motions for summary adjudication were granted before trial, narrowing the claims against Exxon and Ford. During trial, the court granted nonsuit for Rossmoor. The jury returned defense verdicts for Exxon and Ford.

Plaintiffs assert five contentions on appeal. First, they argue that the trial court erred by granting summary adjudication in favor of Exxon as to strict product liability and secondary, or "take home," exposure. Second, they contend that the trial court erred by granting nonsuit for Rossmoor as to both direct and secondary exposure. Third, plaintiffs maintain that the trial court failed to properly instruct the jury regarding design defect issues involving Ford. Fourth, plaintiffs argue that the trial court erred by granting summary adjudication in favor of Ford as to plaintiffs' punitive damages claims. Finally, plaintiffs assert that the jury verdict in favor of Exxon was not supported by the evidence.

We affirm on all challenged grounds. First, summary adjudication for Exxon appropriately was granted because the evidence did not show that Exxon was within the stream of commerce for any asbestos-containing products, and Exxon did not have a duty to Marline regarding secondary exposure because Marline was not a member of Joseph's household at the relevant time. Second, nonsuit as to Rossmoor was appropriate because the causation evidence against Rossmoor presented at trial was insufficient to support a verdict for plaintiffs. Third, jury instructions relating to Ford accurately reflected the law, and Ford was not liable under a design defect theory for products it did not manufacture or supply. Fourth, because we affirm the defense verdict in favor of Ford, plaintiffs' challenge to the summary adjudication of punitive damages claims against Ford is moot. Finally, since plaintiffs have not demonstrated that they were entitled to a verdict in their favor as to Exxon as a matter of law, there is no basis for reversing the defense verdict in favor of Exxon.

I.

Plaintiffs filed a complaint against more than 30 defendants alleging that Marline developed mesothelioma

as a result of exposure to asbestos-containing products. Against all defendants, plaintiffs alleged causes of action for negligence and strict liability based on alleged exposure to the defendants' products. Plaintiffs also asserted premises liability claims against Exxon, Rossmoor, and others, alleging that Joseph worked on premises owned by those defendants, where "he was exposed to asbestos products and dust from asbestos products and consequently exposed" Marline. Joseph also alleged loss of consortium.

Marline's alleged exposure to asbestos stemmed from many sources and spanned several years. The evidence presented in pretrial motions and at trial is discussed in detail below. In short, plaintiffs allege that Marline suffered from both direct exposure and secondary exposure to asbestos-containing dust. They assert that the direct exposures occurred when Marline visited Joseph while he worked at an Enco service station owned by Exxon, from Joseph's work on Ford vehicles at the Enco station and at home while Marline was present, from exposure to dust when Marline visited a Rossmoor construction site, and from drywall compound and stucco in two of plaintiffs' homes built by defendant Shea Homes, which is not a party to this appeal. As for secondary exposure, plaintiffs allege that Marline was exposed to asbestos-containing dust that collected on Joseph's clothing while Joseph worked at the Enco station, as he worked on Ford vehicles at home, and when he visited construction sites as part of his work as an architectural drafter at Rossmoor.

A. Summary adjudication in favor of Exxon

1. Motion, opposition, and trial court ruling

Joseph and Marline testified in their depositions that they met while Joseph was working at an Enco service station in Pomona. Exxon's predecessor, Humble Oil, owned the Enco service station at the relevant time. Marline visited Joseph at work in 1966 and 1967, while Joseph worked on automotive friction products: brakes, clutches, and gaskets. Marline was present when Joseph used compressed air to clean brake drums, and as he swept the service bays before closing. Occasionally, Marline was present when a mobile brake service van was on site preparing brakes for installation. Plaintiffs alleged that these activities directly exposed Marline to airborne asbestos. Joseph said in his deposition that auto parts used at the Enco station came from independent auto parts suppliers or the mobile brake service.

Joseph briefly worked at a different Enco service station in Ontario in 1968, and Marline also visited him there. Joseph also worked at an Enco service station in Pleasanton in 1970 and 1971, after he and Marline were married. In Pleasanton, Marline laundered Joseph's work pants and came into contact with his clothing.³

Exxon argued that summary adjudication should be granted on two separate bases that plaintiffs challenge on appeal. First, Exxon argued that it could not be liable under plaintiffs' strict product liability theory because plaintiffs "have no evidence, and cannot reasonably obtain evidence, that Mrs. Petitpas was indirectly or secondarily exposed to asbestos from an asbestos-containing product manufactured, distributed, or sold by Exxon." Exxon submitted undisputed evidence showing that at the Pomona Enco station, asbestos-containing replacement clutches and gaskets came from an independent auto parts store, and asbestos-containing replacement brakes were supplied by the mobile brake service. None of these products was manufactured by Exxon. Exxon argued that because it supplied these parts only through the provision of automotive services, not as a seller or retailer of parts, it could not be strictly liable because it was not within the stream of commerce.

Second, Exxon argued that it did not have a duty to protect Marline from secondary exposure from "allegedly toxic materials that are carried off the premises on the clothing of an employee." Citing Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 and Oddone v. Superior Court (2009) 179 Cal.App.4th 813, 101 Cal.Rptr.3d 867 ( Oddone ), Exxon argued that as a matter of law it did not have a duty to prevent a non-employee's secondary exposure to asbestos.

After Exxon's motion was filed, the Court of Appeal decided Campbell v. Ford Motor Co . (2012) 206 Cal.App.4th 15, 141 Cal.Rptr.3d 390 ( Campbell ). The plaintiff in Campbell alleged she developed mesothelioma

as a result of asbestos exposure from laundering her father's and brother's clothing during the time they worked as independent contractors installing asbestos insulation at a Ford plant. ( Id . at p. 19, 141 Cal.Rptr.3d 390.) The Campbell court considered "whether a premise[s] owner [Ford] has a duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner's business." ( Id . at p. 29, 141 Cal.Rptr.3d 390.) The court concluded that "a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner's business." ( Id . at p. 34, 141 Cal.Rptr.3d 390.)

Plaintiffs opposed Exxon's motion. They argued Exxon knew in the 1930's that asbestos exposure was hazardous, and it took steps to minimize refinery workers' exposure to asbestos. Because of this knowledge, plaintiffs argued, "a 'reasonably thoughtful' employer would not only have protected its employees from the risk of asbestos exposure, but would have protected its employees' household members who would be subjected to that exposure from the asbestos debris taken home to the household." Plaintiffs contended that Campbell was wrongly decided.

Plaintiffs also argued that Exxon failed to shift the burden on the product liability causes of action because it did not present evidence showing that the Enco station did not sell asbestos-containing auto parts. Automotive repair and maintenance facilities usually charge for both parts and services, plaintiffs asserted, and Exxon failed to provide evidence that it did not engage in such a practice.

At the hearing on the motion, after argument from the parties, the court granted Exxon's motion for summary adjudication as to strict product liability and secondary exposure. On appeal, plaintiffs assert that the trial court erred in granting on both bases. We address each below.

2. Standard of review

On appeal following a motion for summary adjudication, " '[w]e review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.' [Citation.]" "We liberally construe the evidence in support of the party opposing summary [adjudication] and resolve doubts concerning the evidence in favor of that party." ( ...