Filed 5/14/19; Certified for Publication 6/5/19 (order attached)



        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                        DIVISION FOUR


LAOSD ASBESTOS CASES                                      B287831

                                                          (JCCP No. 4674)

JIMMY METTIAS et al.,

        Plaintiffs and Appellants,                        (Los Angeles County
                                                           Super. Ct. No. BC538462)
        v.

THE PEP BOYS MANNY MOE &
JACK OF CALIFORNIA et al.

        Defendants and Respondents.



        APPEAL from a judgment of the Superior Court of Los Angeles
County, James H. Kaddo, Judge. Affirmed.
        Dean Omar Branham, Benjamin H. Adams, Ka’Leya Q. Hardin;
Farrise Law Firm, Simona A. Farrise and Sharon J. Arkin for Plaintiffs
and Appellants.
        Dentons US, Lisa L. Oberg, Jennifer J. Lee, Frank K. Berfield,
Emily K. Ayers and Jules S. Zeman for Defendants and Respondents.
     Philip and Febi Mettias, husband and wife, died from
complications associated with mesothelioma (Philip in 2013, Febi in
2014), a cancer caused by asbestos exposure. Their adult children,
plaintiffs Nancy Basta, Jimmy Mettias, and Mark Mettias, brought the
instant wrongful death action against various defendants. By the time
of trial, only two defendants remained, Honeywell International, Inc.
(Honeywell) and The Pep Boys—Manny, Moe & Jack (Pep Boys).
Plaintiffs pursued causes of action for strict product liability (premised
on failure to warn and design defect/consumer expectation theories) and
negligence. As here relevant, plaintiffs’ theory at trial was that Philip
performed perhaps as many as 24 brake repairs on the family Chrysler
Lebaron in the late 1980’s using asbestos-containing Bendix brake pads,
which were made by Honeywell and which he purchased at the Pep
Boys store located in Victorville, California. Plaintiffs presented expert
testimony that Philip’s exposure to asbestos from those repairs, and
Febi’s exposure from laundering the clothes he wore while making those
repairs, contributed to their contracting mesothelioma.
     The jury returned a special verdict in favor of Honeywell and Pep
Boys. Plaintiffs appeal the verdict solely as to Pep Boys.1 They make
two contentions: (1) the trial court erred in not giving CACI Nos. 400
and 401, which are general negligence instructions, in addition to CACI
Nos. 1220, 1221, and 1222 which are negligence instructions specifically


1    Appellants filed a notice of appeal as to the judgment in favor of
Honeywell, but in their opening brief raised no issues as to Honeywell, and
we granted Honeywell’s motion to dismiss the appeal as to it.

                                      2
adapted for alleged negligence by (among others) a supplier of a
defective product; and (2) certain misstatements by the court in reading
the instructions to the jury prejudiced the outcome. We disagree with
their contentions and affirm.


                              BACKGROUND
Evidence2
      Philip and Febi, along with their older son Jimmy and daughter
Nancy, moved from Cleveland to Apple Valley, California, during the
summer of 1986 or 1987. They drove in their family car, a Chrysler
Lebaron, which Philip had purchased new. Jimmy had just finished
kindergarten; he started first grade after arriving in Apple Valley. The
Lebaron was the only family car for about four years, until Philip
bought a second car, a Ford Taurus.
      According to the Vehicle Manufacturer’s Association
specifications, the Chrysler Lebaron for model years 1984-1987 (the
years that would encompass the model purchased by Philip) had
original asbestos-containing rear brakes supplied by Bendix. One of


2     Because we resolve this case largely on the absence of substantial
evidence to support plaintiffs’ request for general negligence instructions, we
base our evidentiary summary on plaintiff’s evidence. We note that Pep Boys
produced significant defense evidence (none of which is referenced in
appellant’s briefing) tending to prove that it was unlikely Philip contracted
mesothelioma from his brake repairs, and that Philip and Febi had been
exposed to crocidolite asbestos for many years before emigrating to the
United States from Egypt (they lived in an area in Cairo near an operating
asbestos-pipe factory which had a documented unusually high rate of
mesothelioma).

                                       3
plaintiffs’ expert witnesses, Dr. William Longo, an engineer, testified
that the Lebaron would require that or similar brand asbestos-
containing rear brakes as replacements.
     Honeywell manufactured Bendix brakes and supplied them to,
among other retailers, Pep Boys. According to Joel Cohen, the
corporate representative for Honeywell, Bendix brakes contained
asbestos until 1983.3 Dr. Longo testified that he examined various sets
of Bendix brake drums manufactured in different unspecified years.
Each set of brakes tested contained chrysotile asbestos contaminated
with trace amounts of tremolite asbestos. He did not know if those
brakes were manufactured before or after 1987.
     Pep Boys Senior Vice President Joe Cirelli testified that Pep Boys
sold Bendix brake products, although he could not recall the first time
he saw a Bendix product at a Pep Boys’ store. Lilia Magana, a long-
time employee at the Pep Boys store on Washington Boulevard in Los
Angeles, testified that her store sold Bendix brakes from 1983 to 1994.
Magana did not recall ever seeing an asbestos warning on the boxes of
Bendix brakes, and she was not informed that brakes sold by Pep Boys
contained asbestos.
     In the years from 1987 to 1989, while the Mettias family was
living in Apple Valley, Jimmy Mettias was six to seven years old.
During that period, he witnessed his father performing what he later
(as an older child) learned was brake work on the Lebaron. His father

3    He also testified that beginning in 1973, Honeywell put an asbestos
warning on the brake cartons.

                                     4
would use his breath to blow out the brake area and wipe it with a rag
to see if the brakes needed to be changed. This process would create
some dust. If the brakes needed changing, he would remove old brakes
and install new ones. Before putting the new brakes on the car, he
would use sand paper to sand them for a couple of minutes. The
sanding created dust that his father appeared to breath. He believed
that his father changed the brakes “at least a couple of times a year,”
though at his deposition he testified that he remembered only three
brake jobs on the Lebaron from approximately 1987 to 1989.
     At that young age, Philip did not go with his father to get
replacement brakes and he did not know the brand of brakes his father
purchased and used. However, beginning in the early 1990’s, Jimmy
began accompanying his father to the Pep Boys store on Seventh Street
in Victorville to buy automotive parts, including brakes. According to
Jimmy, Philip would ask for Bendix brakes. Jimmy saw the boxes that
the brakes came in, and did not see any warnings on the boxes or the
brakes.
     Mark Mettias, the Mettiases’ youngest son (born in 1990), testified
that starting in 2002, he witnessed his father do brake repairs on the
family’s vehicles, including the Lebaron (he remembered a total of seven
vehicles during that period). The repairs occurred “frequently,” that is,
he felt “like every few months.” In the process, his father would remove
and sand the brake pads. Mark accompanied his father to the Pep Boys
store in Victorville to buy car parts. His father would always ask for
Bendix brake products. He could not say how many times he witnessed


                                    5
his father buy brake products, except “more than once,” perhaps “two or
three times.”
     Febi Mettias did the family’s laundry, including washing the
clothing that Philip wore while doing the brake work on the family
vehicles. In video testimony played at trial, Febi testified that she
washed the laundry “[e]very other day” and had “a habit to shake the
clothes” putting them in the washing machine. After shaking the
clothes out, she could see dust in the air and feel the dust on her hands.
She also cleaned the laundry area after the laundry was complete, using
a towel and a broom, which also created dust.
     Plaintiffs’ counsel posed a hypothetical question to their medical
expert, Dr. Barry Horn, premised on the following assumed facts:
(1) plaintiffs’ family Lebaron had two rear wheel brake drums,
containing a total of four brake shoes of an asbestos-containing design,
(2) Philip repaired the brake shoes twice a year, beginning in summer
1987 and ending in December 1989, resulting in a total of 24 brake shoe
replacements, and (3) during the repair work he sanded the shoes using
sandpaper creating dust. Based on these assumptions, Dr. Horn opined
that the brake repairs Philip performed were a substantial factor in
causing his mesothelioma, because in doing the repairs he was exposed
to free asbestos fibers created by the sanding. Assuming that Febi
laundered the clothing Philip wore (shaking them before putting them
in the washer) and the rags he used during that work, Dr. Horn also
opined that Febi was exposed to asbestos fibers, which was a
substantial factor in causing her mesothelioma.


                                     6
Verdict
     The jury returned a special verdict in favor of Honeywell and Pep
Boys. On plaintiff’s strict liability (failure to warn) claim, the jury
found that “the defendants’ asbestos-containing products ha[d] potential
risks that were known or knowable in light of the scientific and medical
knowledge that was generally accepted in the scientific community on
or after 1987.” But the jury found that “the potential risks of
defendants’ asbestos-containing products [did not pose] a substantial
danger to persons using or misusing defendants’ products in an
intended or reasonably foreseeable way.” On plaintiffs’ design defect
claim, the jury answered “No,” to the question whether “defendants’
asbestos-containing products fail[ed] to perform as safely as an ordinary
consumer would expect when used or misused in an intended or
reasonably foreseeable way.” Finally, on plaintiff’s negligence claim,
they answered “No” to the question whether the defendants were
negligent.


                              DISCUSSION
CACI Nos. 4.00 and 4.01
     Plaintiffs contend that the trial court erred in denying their
request to instruct the jury pursuant to CACI Nos. 400 and 401.
According to plaintiffs, at trial they pursued two theories of negligence
against Pep Boys. The first was liability premised on Pep Boys’
negligence as a supplier of Bendix asbestos-containing brake pads and
shoes used by Philip in home break repairs. That theory was covered by
CACI Nos. 1220 (Negligence–Essential Factual Elements), 1221
                                      7
(Negligence–Basic Standard of Care), and 1222 (Negligence–
Manufacturer or Supplier–Duty to Warn). The trial court granted their
request to give those instructions.4 Their second theory, they maintain,


4      The parties have not provided us with copies of the written instructions
given by the court. We rely on the record of the court’s oral instructions.
Pursuant to CACI No. 12.20, the court instructed: “Plaintiffs claim that
Philip Mettias and Febi Mettias were harmed by Defendants’ negligence and
that they should be held responsible for that harm. To establish this claim,
the plaintiffs must prove all of the following:
“1.    That the defendants manufactured or sold the products;
“2.    That the defendants were negligent in manufacturing or selling the
products;
“3.    That Philip Mettias and Febi Mettias were harmed; and
“4.    That the defendants’ negligence was a substantial factor in causing
Philip Mettias’ and Febi Mettias’ harm and the plaintiffs’. [sic]”
       Pursuant to CACI No. 12.21, the court instructed: “A manufacturer or
seller is negligent if it fails to use the amount of care in manufacturing or
selling the products that a reasonably careful manufacturer or seller would
use in similar circumstances to avoid exposing others to a foreseeable risk of
harm. [¶] In determining whether the defendants used reasonable care, you
should balance what [the defendants] knew or should have known about the
likelihood and severity of potential harm from the product against the burden
of taking safety measures to reduce or avoid the harm.”
       Pursuant to CACI No. 1222, the court instructed: “Plaintiffs claim that
the defendants were negligent by not using reasonable care to warn about the
product’s dangerous condition or about facts that made the product likely to
be dangerous. To establish this claim, the plaintiffs must have proved all of
the following: [¶] 1. That defendants manufactured or sold the product; [¶]
2. That the defendants knew or reasonably should have known that the
product was dangerous or was likely to be dangerous when used or misused
in a reasonably foreseeable manner; [¶] 3. That defendants knew or
reasonably should have known that users would not realize the danger; [¶]
4. That the defendants failed to adequately warn of the danger; [¶] 5. That
a reasonable manufacturer or seller under the same or similar circumstances
would have warned of the danger; [¶] 6. That Philip and Febi Mettias were
harmed; and [¶] 7. That defendants’ failure to warn was a substantial factor
in causing Philip Mettias’ and Febi Mettias’ harm.”

                                      8
was a general negligence theory based on a duty of care other than as a
supplier of Bendix brakes, for which they requested, but were denied,
the pattern instructions for general negligence, CACI Nos. 400 and
401.5
        Plaintiffs contend that they were entitled to CACI Nos. 400 and
401. They are mistaken. It is of course true that “a litigant is entitled
to instructions on every theory advanced by him which finds support in
the evidence.” (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 543-544,
overruled on different grounds in Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 574.) But here, the only viable theory of negligence was
that Pep Boys violated its duty of due care as a supplier of Bendix
brakes. As to Philip, the evidence tended to show that from 1987
through 1989, Philip performed brake repairs on the family’s Chrysler
Lebaron using replacement asbestos-containing Bendix brakes
purchased at Pep Boys. In doing the repairs, he was exposed to free
asbestos fibers created by sanding the brake pads, and that exposure


5     CACI No. 400 states the elements of negligence: “[Name of plaintiff]
claims that [he/she] was harmed by [name of defendant]’s negligence. To
establish this claim, [name of plaintiff] must prove all of the following: [¶]
1. That [name of defendant] was negligent; [¶] 2. That [name of plaintiff]
was harmed; and [¶] 3. That [name of defendant]’s negligence was a
substantial factor in causing [name of plaintiff]’s harm.”
      CACI No. 401 states the basic standard of care: “Negligence is the
failure to use reasonable care to prevent harm to oneself or to others. [¶] A
person can be negligent by acting or by failing to act. A person is negligent if
he or she does something that a reasonably careful person would not do in the
same situation or fails to do something that a reasonably careful person
would do in the same situation. [¶] You must decide how a reasonably
careful person would have acted in [name of plaintiff/defendant]’s situation.”

                                       9
was a substantial factor in causing his mesothelioma. Likewise, as to
Febi, the evidence of Pep Boys’ alleged negligence was tied to Philip’s
brake repairs (and Pep Boys’ duty as a supplier of the Bendix brakes
Philip used), namely, that her laundering the clothes and rags Philip
used in doing the repairs exposed her to asbestos fibers, and that
exposure was a substantial factor in causing her mesothelioma.
     This evidence, supporting instructions based on Pep Boys’ duty of
care as a supplier of asbestos-containing Bendix brakes, was the precise
theory covered by CACI Nos. 1220, 1221, and 1222. “A party is entitled
upon request to correct, nonargumentative instructions on every theory
of the case advanced by him which is supported by substantial evidence.
The trial court may not force the litigant to rely on abstract
generalities, but must instruct in specific terms that relate the party's
theory to the particular case.” (Soule v. General Motors Corp., supra, 8
Cal.4th at p. 572, italics added.) That is what the trial court did here–
instruct in specific terms relating to the theory of negligence support by
the evidence.
     In their opening brief, plaintiffs fail to explain precisely why, on
the evidence presented, they were entitled not only to CACI Nos. 1220,
1221, and 1222, but also to CACI Nos. 400 and 401. Plaintiffs simply
review some of the evidence they presented in general fashion, and
assert in conclusory terms that “[w]hile some of this evidence may have
equally supported the Mettias family’s product liability theory of
recovery against Pep Boys, it also supported a theory of recovery based
on general negligence.” But they do not articulate a cognizable theory


                                    10
based on the evidence under which Pep Boys owed a duty of care to
them that was not encompassed by CACI Nos. 1220, 1221, and 1222.
     Not until their reply brief do they attempt to articulate the
specific evidence which they contend mandated the giving of CACI Nos.
400 and 401. They assert that they produced evidence tending to show
not simply that Pep Boys was negligent in permitting Philip and Febi to
be exposed to asbestos without adequate warnings and precautions
based on Philip’s purchase and installation of Bendix brakes. They
contend that they produced evidence that Philip was exposed to
asbestos when he was physically present in the Victorville Pep Boys
store. But the evidence they point to is clearly insufficient to justify
general negligence instructions.
     They cite evidence that the Victorville store had service repair
facilities where employees performed brake repairs. However, there
was no evidence at trial that Philip was exposed to asbestos fibers
migrating into the retail area from any repairs in the service bays.
Moreover, we note that plaintiffs fail to mention Jimmy’s testimony
that when he went with Philip to the Pep Boys store, they would pick
up parts and leave, a process of perhaps ten to fifteen minutes in the
store. They did not stay there longer.
     Next, plaintiffs rely on testimony by Lilia Magana and Dr.
William Longo regarding the return of used brake cores. Magana, who
worked at the Pep Boys store on Washington Boulevard in Los Angeles,
not the Victorville store, testified that customers would return used
products to the Los Angeles store, including brake cores, for a cash
refund. All such products were returned in the box. In her store, the
                                     11
box would be handed to the cashier, who would put it in an open bin
behind the customer service counter where they were kept. Customers
were not allowed anywhere near the bin. Dr. Longo testified that used
cores have the potential of releasing significant amounts of asbestos
“especially if they are manhandled in some manner.” He was asked
whether he had an opinion whether used cores contained in boxes
brought back to the store had “the potential of releasing significant
amounts of asbestos” if “dumped in a box without a lid.” He replied:
“[t]he second part, yes. It’s unclear how much . . . release you are
having in the box while you are carrying them, but if they’re dumped
into a container with other shoes, yes.”
     This evidence does not support a general negligence theory based
on asbestos exposure while Philip was present in the store. There was
no evidence that the Victorville Pep Boys had an open bin for storing
boxes containing used cores behind the counter as did the Los Angeles
store in which Magana worked. Moreover, even if it can be assumed
that the Victorville store handled returned cores in the same way as the
Los Angeles store, Magana testified that the bin was not located in an
area where customers would be anywhere near it. Moreover, she did
not testify that the boxes were simply “dumped” in the bin (an essential
fact to Dr. Long’s opinion). She testified that the cashier would “put
them in a bin.” Further, even if the returned boxes of cores at the
Victorville store were simply “dumped,” Dr. Longo’s opinion that there
was a potential to release significant amounts of asbestos was not
evidence that such a release ever occurred, or that Philip was ever
exposed to such a release during his brief stays in the store. Finally,
                                    12
there was no evidence that even if Philip was exposed to asbestos fibers
while in the Victorville store, such exposure was a substantial factor in
causing his and Febi’s mesothelioma.
     In short, there was no evidence to support a theory of negligence
against Pep Boys other than its alleged violation of its duty of care as a
supplier of asbestos-containing brakes.
     Assuming for the sake of argument that the trial court should
have instructed pursuant to CACI Nos. 400 and 401, it is not
reasonably probable that a different result would have been reached.
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 (Cassim).)
Plaintiffs’ evidence against Pep Boys, even on the theory that it was a
supplier of asbestos containing brakes, was exceedingly weak.
Plaintiffs make no attempt to demonstrate how, on the entire record,
including the significant defense evidence (which they do not even
mention in the context of potential prejudice; see fn. 2 , ante) the result
would have been any different if CACI Nos. 400 and 401 had been
given. The actual findings made by the jury bely any notion of
prejudice. On plaintiff’s strict liability claims, the jury found: (1) that
“the potential risks of defendants’ asbestos-containing products [did not
pose] a substantial danger to persons using or misusing defendants’
products in an intended or reasonably foreseeable way”; and (2) that
“defendants’ asbestos-containing products [did not] fail to perform as
safely as an ordinary consumer would expect when used or misused in
an intended or reasonably foreseeable way.” And the jury also made a
general finding that Pep Boys was not negligent. On the instructions
given, that finding meant that the jury concluded Pep Boys did not
                                     13
breach a duty of care in supplying Bendix brake products (CACI Nos.
1220, 1221) and that Pep Boys did not breach a duty of care by any
failure to warn (CACI No. 1222). Given these findings and the evidence
presented, we are at a loss to see how instructing on a general
negligence theory might have changed he result. Any error in failing to
instruct using CACI Nos. 400 and 401 was harmless.


Misstatements in Oral Instructions
     Plaintiffs contend that the court’s oral reading of certain
instructions was erroneous and prejudicial. The contention is meritless.
     On plaintiffs’ strict product liability claims, the trial court
instructed pursuant to modified versions of CACI No. 1203 (design
defect-consumer expectation test) and CACI No. 1205 (failure to warn).
As to the element of causation in the first reading of CACI No. 1203, the
court stated that plaintiffs had to prove that the product’s failure to
perform as expected “was a substantial factor in causing Philip Mettias’
and Febi Mettias’ harm as well as the plaintiffs’ harm.” (Italics added.)
In reading CACI No. 1205, the court stated that plaintiffs had to prove
that the lack of sufficient warning “was a substantial factor in causing
Philip Mettias’ and Febi Mettias’ and the plaintiffs’ harm.” (Italics
added.) As the trial court was about to make the same statement about
proof of plaintiffs’ harm in the reading of CACI No. 1220 regarding the
negligence claim, plaintiffs’ counsel asked for a sidebar, at which he
pointed out that the language requiring proof of plaintiffs’ harm was
incorrect, as this was a wrongful death action.


                                     14
     The court agreed to reread the instructions, and delete the
reference to proof of plaintiffs’ harm. In reinstructing on CACI No.
1203, the court informed the jury in relevant part that plaintiffs had to
prove “that the product’s failure to perform safely was a substantial
factor in causing Philip Mettias’ and Febi Mettias’ harm. The
instruction should stop there. I’m eliminating from what I had read to
you before the words ‘as well as the plaintiffs’ harm.’ You are not to
consider that.” In rereading CACI No. 1205, the court told the jury in
relevant part that plaintiffs had to prove “that the lack of sufficient
warnings was a substantial factor in causing Philip Mettias’ and Febi
Mettias’ harm. And I am eliminating the words that I have read to you
before ‘and the plaintiffs’ harm.’ You are only to accept the instruction
as I have changed it and in its original form.” (Italics added.) In
rereading CACI No. 1220, the court instructed that plaintiffs had to
prove “that defendants’ negligence was a substantial factor in causing
Philip Mettias’ and Febi Mettias’ harm. And that is the complete
instruction that you are to follow in reaching a verdict in this case.”
The court then read CACI No. 1222, and did not include any reference
to plaintiffs’ having to prove that they were harmed.
     As best we understand plaintiffs’ contention, it is that although
the court corrected the reference to proof of plaintiffs’ harm in CACI No.
1203 and 1220, and never mentioned the point in CACI No. 1222, the
court did not make an adequate correction in the CACI No. 1205,
because as to that instruction the court stated, “You are only to accept
the instruction [CACI No. 1205] as I have changed it and in its original
form.” (Italics added.) According to plaintiffs, this reference to
                                    15
accepting CACI No. 1205 as changed and in its original form might
have confused the jury into erroneously believing that to prove all of
plaintiffs’ claims, plaintiffs had to prove that they were exposed to
asbestos as well as Philip and Febi.
     The contention is, to say the least, farfetched, and it ignores
virtually the entire record except for four words (“and in its original
form”) spoken by the court in its rereading of CACI No. 1205.
Regardless, we need not dwell on the issue. As we have already noted,
the special verdict returned by the jury shows that the jury rejected
each cause of action on an essential premise of Pep Boys’ alleged
liability unrelated to the issue of causation of harm. Thus, even were
we to assume that the jury was somehow confused as to whether
plaintiffs had to prove that plaintiffs themselves were exposed to
asbestos, we would conclude that the error was not prejudicial.
(Cassim, supra, 33 Cal.4th at p. 800.)




                                    16
                           DISPOSITION
     The judgment is affirmed. Pep Boys shall recover its costs on
appeal.




                                       WILLHITE, J.


     We concur:



     MANELLA, P. J.



     COLLINS, J.




                                  17
Filed 6/5/19
                        CERTIFIED FOR PUBLICATION

      IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                              DIVISION FOUR

LAOSD ASBESTOS CASES                       B287831

                                           JCCP No. 4674

JIMMY METTIAS et al.,

       Plaintiffs and Appellants,          (Los Angeles County
                                            Super. Ct. No. BC538462)
       v.

THE PEP BOYS MANNY MOE &                     ORDER GRANTING
JACK OF CALIFORNIA et al.                    PUBLICATION

       Defendants and Respondents.


THE COURT:*
       The opinion in the above-entitled matter filed on May 14, 2019, was
not certified for publication in the Official Reports. Good cause appearing,
it is ordered that the opinion in the above entitled matter be published in
the official reports.



*MANELLA, P. J.               WILLHITE, J.           COLLINS, J.
