Shields v. Hennessy Industries, Inc.

205 Cal. App. 4th 782
CourtCalifornia Court of Appeal
DecidedApril 13, 2012
DocketNo. A130213
StatusPublished
Cited by18 cases

This text of 205 Cal. App. 4th 782 (Shields v. Hennessy Industries, Inc.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shields v. Hennessy Industries, Inc., 205 Cal. App. 4th 782 (Cal. Ct. App. 2012).

Opinion

Opinion

MARCHIANO, P. J.

Plaintiffs in these consolidated actions appeal from judgments on the pleadings in favor of defendant Hennessy Industries, Inc. (Hennessy), the manufacturer of a brake arcing machine. Each of the plaintiffs alleged Hennessy’s machine was designed and used exclusively for the purpose of shaping, by grinding action, brake linings that were manufactured by others, but contained asbestos fibers that were dangerously released into the air by the normal action of Hennessy’s machine. The trial court ruled that, because Hennessey’s machine itself was not made with asbestos and Hennessy did not itself manufacture or distribute any product made with [784]*784asbestos, plaintiffs had not, and could not, plead a viable cause of action against Hennessy for negligence or strict products liability.

As discussed below, we conclude, in light of the Supreme Court’s recent decision in O’Neil v. Crane Co. (2012) 53 Cal.4th 335 [135 Cal.Rptr.3d 288, 266 P.3d 987] {O’Neil), as well as earlier Court of Appeal decisions including Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564 [90 Cal.Rptr.3d 414] {Taylor), and Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577 [28 Cal.Rptr.3d 744] {Tellez-Cordova), plaintiffs have pleaded viable causes of action for negligence and strict liability for purposes of overcoming a motion for judgment on the pleadings. Accordingly, we reverse and remand these actions for further proceedings.

Background

Leonard Shields alleged he worked predominantly as a mechanic and suffered exposure to asbestos resulting in injuries, including asbestos-related pleural disease diagnosed in 1994, asbestosis diagnosed in 1996, and lung cancer diagnosed in 2008. The other plaintiffs pleaded similar work experience as mechanics, ironworkers, or pipefitters, with similar exposure to asbestos and similar injuries.1

Each of the plaintiffs’ complaints, filed between July 2008 and May 2010, named numerous defendants including Hennessy. All plaintiffs are represented by the same law firm, which in 2003 had filed a “Master Complaint” pursuant to general order No. 55-—issued by the trial court in 1996—which allowed the use of master pleadings in asbestos litigation. Each complaint thus incorporated most, if not all, of its causes of action from the firm’s Master Complaint, designating the defendants to which each incorporated cause of action applied. The five complaints pleaded four or five causes of action against Hennessy in this manner.

Of these incorporated causes of action, two in each complaint are referred to as the Master Complaint’s “Brake Shoe Grinding Machine” causes of action—one based on negligence and the other on strict products liability. These two commonly pleaded causes of action are the focus of all five appeals.

In June and July 2010, Hennessy filed motions for judgment on the pleadings against each of plaintiffs’ complaints. Between late July and late [785]*785November of that year, the trial court held hearings on these motions, granted judgment on the pleadings and denied leave to amend. In each case, the court subsequently entered judgment in favor of Hennessy.

Each of the plaintiffs appealed.2 (See Code Civ. Proc., § 904.1, subd. (a)(1).)

Discussion

I. Standard of Review

Each of the plaintiffs contends the trial court erred in granting Hennessy’s motion for judgment on the pleadings and in denying leave to amend.

The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer. The trial court determines whether it appears from the pleadings, together with matters that may be judicially noticed, the moving party is entitled to judgment as a matter of law. We review the trial court’s determination de novo. In doing so, we assume the truth of, and liberally construe all properly pleaded factual allegations in the complaint. (Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321 [107 Cal.Rptr.3d 384] (Bezirdjian).) In determining whether the pleadings entitle the moving party to judgment as a matter of law, we conduct the appropriate analysis without deferring to the reasoning of the trial court. (Id. at p. 322.)

We review the trial court’s denial of leave to amend for abuse of discretion, which the plaintiffs must establish by offering proposed amendments to this court that state a legally sufficient cause of action. (Palm Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 7-8 [86 Cal.Rptr.2d 73].)

II. The Pleadings

In reviewing the two “Brake Shoe Grinding Machine” causes of action at issue, we focus on the proposed amended version submitted to the trial court by each of the plaintiffs in early September 2010.

Hennessy has objected, with respect to three of the five consolidated appeals, that plaintiffs may not rely on the proposed amended version, [786]*786because plaintiffs did not present the proposed amendments to the trial court before it made its ruling granting the motion for judgment on the pleadings without leave to amend.3 It is evident, however, in these cases plaintiffs adequately presented to the court the gist of these proposed amendments in arguing against the motion for judgment on the pleadings.4 In any event, when a judgment on the pleadings is sustained without leave to amend, an appellant may argue for the first time on appeal the complaint may be amended to state a valid cause of action—based on the general rule that a litigant may raise for the first time on appeal a pure question of law based on undisputed facts. (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 259-260 [108 Cal.Rptr.2d 739].) In other words, the appellant may assert the trial court abused its discretion in granting the motion without leave to amend, and it is not a prerequisite to this assertion the appellant first presented to the trial court a specific request to amend or an indication of its legal basis. (Galligan v. City of San Bruno (1982) 132 Cal.App.3d 869, 876 [183 Cal.Rptr. 466].)

The proposed amended version of the first “Brake Shoe Grinding Machine” cause of action—grounded on negligence—alleged Hennessy was engaged in the design, manufacture, and distribution of “asbestos brake shoe grinding machines.”

Hennessy “negligently . . . manufactured [and] designed . . . certain asbestos brake shoe grinding machines ... in that [these machines], while being used in a manner that was reasonable, failed to protect users . . . and others, including the plaintiff . . . from exposure to and inhalation and ingestion of asbestos fibers caused to be released from asbestos-containing brake liningfs] by the intended use of the asbestos brake shoe grinding machines . . . .”

Hennessy “knew or should have known, and intended, that the . . . brake shoe grinding machines . . .

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Bluebook (online)
205 Cal. App. 4th 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shields-v-hennessy-industries-inc-calctapp-2012.