Filed 5/9/16; pub. order 6/7/16 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                               DIVISION FOUR


RENEE RONDON,
         Plaintiff and Appellant,
                                                         A141686 & A142411
v.
HENNESSY INDUSTRIES, INC.,                               (Alameda County
                                                         Super. Ct. No. RG13695174)
         Defendant and Respondent.




                                                    I.
                                              INTRODUCTION
         Appellant Renee Rondon, as the successor-in-interest to her late husband Frank
Rondon, appeals the trial court’s award of summary judgment in favor of Hennessy
Industries, Inc. (Hennessy). Frank Rondon developed mesothelioma as the result of
exposure to asbestos while working as a mechanic. Mr. Rondon brought claims for strict
liability and negligence against Hennessy, alleging that its brake arcing machines
released asbestos dust that caused him injury when he used them to grind standard brake
linings. Hennessy moved for summary judgment, arguing it was not liable as a matter of
law because its brake arcing machines did not contain asbestos, Hennessy did not
produce the asbestos-containing brakes linings, and its machines were not used
exclusively to grind brake linings containing asbestos. The trial court found there was no
triable issue of fact and granted the motion.



                                                     1
       We reverse, concluding that the recent decision from the Second District Court of
Appeal in Sherman v. Hennessy Industries, Inc. (2015) 237 Cal.App.4th 1133 (Sherman)
is directly on point, and is persuasive. That opinion held that the proper test is not the
“exclusive use” standard argued by Hennessy and relied on by the trial court, but whether
the “inevitable use” of Hennessy’s machines would expose a worker like Rondon to
asbestos dust absent safety protection or adequate warning. Because Rondon produced
sufficient evidence to raise a triable issue of fact as to whether the “inevitable use”
standard was met, the trial court erred in granting summary judgment. Accordingly, we
reverse.
                                              II.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Rondon’s complaint alleged that Hennessy, through its predecessor Ammco Tools,
Inc. (collectively Hennessy), manufactured and supplied brake arcing machines used to
grind asbestos brakes.1 Rondon used Hennessy’s machines while working as a mechanic
from approximately 1965 to 1988. The complaint alleged Hennessy is liable under both
negligence and strict liability theories because the grinders “had no other function than to
grind asbestos-containing brake linings.”
       Hennessy’s grinders themselves did not contain asbestos. The grinders were
designed to reshape the friction material of a brake shoe. When the grinder came into
contact with an asbestos-containing brake shoe, it released asbestos into the air. From the
1950’s through the 1970’s, Hennessy’s machines were designed to be used on standard
sized drum brakes for light trucks and passenger vehicles.
       Hennessy filed a summary judgment motion arguing there was no dispute of
material fact that Hennessy never manufactured, distributed or designed an asbestos-
containing product. Further, Hennessy’s machines were not designed to be used
exclusively with asbestos-containing products and were used on non-asbestos brakes. In


       1
         The parties and the witnesses refer to the brake arcing machines in the colloquial
as “grinders,” and we do as well.


                                              2
support of its motion, Hennessy submitted the declaration of mechanic and mechanical
engineer Russell Darnell, Ph.D. Dr. Darnell stated he had personally installed non-
asbestos metallic brake shoe linings in the 1960’s and 1970’s. “These metallic brake
linings were regularly seen and used by mechanics such as myself (including myself) on
vehicles, including vehicles such as Corvettes, GTs, ‘SS’, and similar domestically
available sports cars and performance-type vehicles, known as ‘muscle’ cars, which
became widely popular during the 1960’s and 1970’s in the United States.” He stated
Hennessy grinders were used on non-asbestos brakes during the 1960’s and 1970’s.
       Craig Mountz, a product engineer who had been employed by Hennessy since
1975, also submitted a declaration about the use of the grinders on non-asbestos brakes.
He stated Hennessy grinders did not contain asbestos. Hennessy “brake shoe arcing
machines are designed to reshape the friction material of a brake shoe (brake lining),
regardless of the brake shoe’s composition.” Hennessy “brake shoe arcing machines
were not specifically designed or intended to be used solely with asbestos-containing
brake linings, or any other type of brake shoe lining.” Hennessy designed additional
abrasives to better tailor its machines to different brake linings and created a grit abrasive
for non-asbestos metallic brakes. “Although the high performance grit would last longer
than the standard grit in high volume situations involving metallic and high-performance
linings, both the standard grit and the high performance grit were capable of and could in
fact arc metallic and high-performance brake linings.”
       In arguing it was entitled to summary judgment as a matter of law, Hennessy
distinguished two recent decisions by our court: Shields v. Hennessy Industries, Inc.
(2012) 205 Cal.App.4th 782 (Shields), and Bettencourt v. Hennessy Industries, Inc.
(2012) 205 Cal.App.4th 1103 (Bettencourt). Shields and Bettencourt both held that
allegations against Hennessy could survive motions for judgment on the pleadings
because Hennessy could potentially be liable, as the grinders’ sole, intended, and
inevitable use was to grind asbestos-containing brakes. Unlike those cases, Hennessy
argued that here, at the summary judgment stage where the court can consider evidence,



                                              3
the undisputed facts show the grinders were not designed exclusively to be used with
asbestos-containing brakes.
       Rondon filed an opposition arguing that Hennessy’s grinders substantially
contributed to Rondon’s asbestos exposure, citing O’Neil v. Crane Co. (2012) 53 Cal.4th
335 (O’Neil) and Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129
Cal.App.4th 577 (Tellez-Cordova), because the intended function and “inevitable use” of
Hennessy’s grinders was to grind asbestos-containing brakes. Rondon presented the
declaration of John Templin, an industrial hygienist, who opined that prior to 1980
“virtually all” drum brake materials contained asbestos. Non-asbestos brakes were in
limited use. “I have not seen any reliable information to the effect that non-asbestos
brake linings for drum brakes were commercially available for general or ordinary use
prior to 1980 on automobiles or trucks.” As part of his opinion, he relied on a 1986
Environmental Protection Agency report that 90 to 95 percent of brakes contained an
asbestos lining. He opined that Rondon’s work grinding brakes using Hennessy’s
machines resulted in the release of airborne asbestos fibers that exposed Rondon to
significant concentrations of asbestos.
       Rondon also submitted the deposition of Hennessey employee Craig Mountz. In
his deposition, Mountz stated he did not know what percentage of brakes had asbestos
lining but “our grinder grinds any kind of brakes, so it wouldn’t matter if they banned
asbestos and went to full metallic. It wouldn’t have mattered to us from a machine
standpoint.” The standard grit would work on any brake type. Mountz explained a
mechanic could use either grit on either kind of brake but “the grit for metallic brakes
would last a little bit longer.”
       The action of the grinders released dust. Mountz agreed the main concern with the
grinders was the release of that dust. Beginning in 1973, Hennessy provided an asbestos
dust collector bag as standard equipment. The dust collector was for all kinds of dust, but
the “big push in 1973” was to collect asbestos dust. Prior to 1973, the grinders did not
have any warning about the dust or use of a dust bag.



                                             4
                                      Summary Judgment Order
       The court granted Hennessy’s motion for summary judgment, concluding it was
impossible for Rondon to establish liability under the four key authorities: O’Neil, Tellez-
Cordova, Shields, and Bettencourt. Rondon could not prove that its grinders were
manufactured to be used exclusively and inevitably with asbestos-containing brakes. The
court referred to the declaration of Dr. Darnell, who confirmed that several companies
marketed non-asbestos brakes during the 1960’s and 1970’s. Darnell explained that
although non-asbestos brakes were less frequently used, they were regularly seen on
sports cars and other high performance “muscle” cars. Mountz testified that Hennessy
grinders were used on standard brakes and that Hennessy offered three different grit belts
for the grinders depending on the type of brakes. The court also noted that Rondon did
not dispute that non-asbestos brakes were used, although their use was minimal.
       In light of this evidence, the court concluded Rondon could not satisfy the
requirements of Tellez-Cordova that the product “ ‘could only be used in a potentially
injury-producing manner,’ ” or that the products intended use “ ‘inevitably creates a
hazardous situation.’ ” Under O’Neil, Hennessy can be liable only if its grinders would
be used exclusively on asbestos brakes, or if it was inevitable that the grinders’
“exclusive use” would be to grind asbestos brakes. Unless those conditions are met,
Hennessy could not be liable no matter how foreseeable it was that its grinders were used
on asbestos brakes. The court distinguished Shields and Bettencourt, which involved
motions for judgment on the pleadings, because here Hennessy had produced evidence to
show the grinders were used on all brakes, not solely asbestos-containing brakes. Thus,
there was no triable issue of fact.
       The court did not directly address Rondon’s negligence claim.




                                              5
                                             III.
                                       DISCUSSION
A.     Standard of Review
       We summarized the well-known procedural rules and standard of review
applicable to motions for summary judgment recently in Ram’s Gate Winery, LLC v.
Roche (2015) 235 Cal.App.4th 1071, 1078-1079 (Ram’s Gate Winery):
       “Summary judgment and summary adjudication provide courts with a mechanism
to cut through the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute. (Code Civ. Proc., § 437c,
subd. (f)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 . . . (Aguilar).)
A defendant moving for summary judgment or summary adjudication may demonstrate
that the plaintiff’s cause of action has no merit by showing that (1) one or more elements
of the cause of action cannot be established, or (2) there is a complete defense to that
cause of action. (Code Civ. Proc., § 437c, subds. (f)(2), (p)(2); Aguilar, supra, 25 Cal.4th
at p. 849.) This showing must be supported by evidence, such as affidavits, declarations,
admissions, interrogatory answers, depositions, and matters of which judicial notice may
be taken. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850,
855; Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 587 . . . .)
       “After the defendant meets its threshold burden, the burden shifts to the plaintiff to
present evidence showing that a triable issue of one or more material facts exists as to
that cause of action or affirmative defense. (Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff may not simply rely on the allegations
of its pleadings but, instead, must set forth the specific facts showing the existence of a
triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of
material fact exists if, and only if, the evidence reasonably permits the trier of fact to find
the contested fact in favor of the plaintiff in accordance with the applicable standard of
proof. (Aguilar, supra, 25 Cal.4th at p. 850.)
       “In ruling on the motion, the trial court views the evidence and inferences
therefrom in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th


                                               6
at p. 843; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 . . . (Saelzler).) If
the trial court concludes the evidence or inferences raise a triable issue of material fact, it
must deny the defendant’s motion. (Aguilar, supra, 25 Cal.4th at p. 843; Saelzler, supra,
25 Cal.4th at p. 768.) But the trial court must grant the defendant’s motion if the papers
show there is no triable issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
       “ ‘We review an order granting summary judgment or summary adjudication de
novo. (Aguilar, supra, 25 Cal.4th at p. 860.) We independently examine the record to
determine whether a triable issue of material fact exists. (Saelzler, supra, 25 Cal.4th at
p. 767.) The trial court’s stated reasons for granting summary judgment or summary
adjudication are not binding on us because we review its ruling, not its rationale. (Carnes
v. Superior Court (2005) 126 Cal.App.4th 688, 694 . . . [“The sole question properly
before us on review of the summary judgment is whether the judge reached the right
result . . . whatever path he might have taken to get there . . . .”].)’ (Collin v. CalPortland
Co., supra, 228 Cal.App.4th at p. 588, italics omitted).” (Ram’s Gate Winery, supra, 235
Cal.App.4th at pp. 1078-1079.)
B.     Strict Liability
       Strict liability is imposed for three types of product defects: manufacturing
defects, design defects, and warning defects. (Anderson v. Owens–Corning Fiberglas
Corp. (1991) 53 Cal.3d 987, 995 (Anderson).) Rondon argues that Hennessy’s machines
caused the release of asbestos dust when used on standard brake linings and Hennessy
failed to give adequate warning that its grinders released asbestos dust. Rondon also
argued the grinders were defectively designed and did not protect users from airborne
asbestos.




                                               7
       Throughout this litigation the parties and the trial court relied upon four key cases
to evaluate the issues. We will discuss each of them in turn, along with the most recent
case involving Hennessy grinders, Sherman, supra, 237 Cal.App.4th 1133.2
       In O’Neil, our Supreme Court established the standard for evaluating manufacturer
liability for injuries from an “adjacent product.” (O’Neil, supra, 53 Cal.4th at
pp. 342-343.) The court held “a product manufacturer may not be held liable in strict
liability or negligence for harm caused by another manufacturer’s product unless the
defendant’s own product contributed substantially to the harm, or the defendant
participated substantially in creating a harmful combined use of the products.” (Id. at
p. 342.) In that case the defendant manufacturers manufactured valves and pumps used
in Navy warships. (Ibid.) O’Neil was exposed to asbestos when replacement parts were
used in conjunction with the pumps and valves. O’Neil argued the manufacturers should
be held strictly liable because it was foreseeable workers would be exposed to asbestos in
conjunction with their pumps and valves. (Ibid.) The manufacturers moved for nonsuit
on all causes of action. (Id. at p. 346.)
       “We conclude that defendants were not strictly liable for O’Neil’s injuries because
(a) any design defect in defendants’ products was not a legal cause of injury to O’Neil,
and (b) defendants had no duty to warn of risks arising from other manufacturers’
products.” (O’Neil, supra, 53 Cal.4th at p. 348, original italics.) The record did not
support O’Neil’s claim that the products were defective because they were “ ‘designed to
be used’ ” with asbestos-containing components. (Id. at p. 350.) The pumps and valves
could be used with either asbestos or non-asbestos gaskets and packing. (Ibid.) The
products did not “require[] the use of asbestos components.” (Ibid.)




       2
         The Second District’s decision in Sherman was issued after briefing in this case,
although the parties did make reference to the pending Sherman appeal in their briefing.
Since then, Sherman has been decided and, at this court’s invitation, the parties have
submitted supplemental briefs addressing the applicability of this recent decision to this
appeal.


                                             8
       While manufacturers have a duty to warn consumers about the hazards inherent in
their products (Anderson, supra, 53 Cal.3d at p. 1003), this duty does not extend to
“hazards arising exclusively from other manufacturers’ products.” (O’Neil, supra, 53
Cal.4th at p. 351, original italics.)
       The O’Neil court expressly distinguished Tellez-Cordova. In that earlier
intermediate appellate court case, Tellez-Cordova developed lung disease from toxic dust
released while using grinders and saws with abrasive discs. (Tellez-Cordova, supra, 129
Cal.App.4th at p. 579.) He sued the manufacturers of the power tools arguing they were
specifically designed to be used with abrasive discs, and therefore it was reasonably
foreseeable that toxic dust would be released during their intended use. (Id. at p. 580.)
The trial court dismissed the complaint on a demurrer. (Id. at p. 579.)
       On appeal the manufacturers argued that their tools could be used with a
“ ‘universe of grindable products’ ” on all types of materials, but the court did not
consider these facts at the demurrer stage and relied solely on the allegations in the
complaint. (Tellez-Cordova, supra, 129 Cal.App.4th at p. 583.) In reversing the trial
court’s ruling, the appellate court noted that the complaint alleged that the application of
the abrasive discs or wheels that produced toxic dust was the “inevitable use” of the tools.
(Id. at p. 584.) The “allegation is that the tools had no function without the abrasives
which disintegrated into toxic dust.” (Id. at p. 585.)
       The O’Neil court distinguished Tellez-Cordova on two grounds. First, the power
tools in Tellez-Cordova could “only be used in a potentially injury-producing manner.”
(O’Neil, supra, 53 Cal.4th at p. 361, original italics.) The tools’ “sole purpose” was to
grind metals which would produce harmful dust. (Ibid.) To the contrary, in O’Neil the
normal operation of the pumps and valves did not “inevitably cause the release of
asbestos dust.” (Ibid.) Second, the action of the power tools in Tellez-Cordova caused
the release of harmful dust. (Ibid.) “Where the intended use of a product inevitably
creates a hazardous situation, it is reasonable to expect the manufacturer to give
warnings.” (Ibid.) But manufacturers are not required to warn about all foreseeable
harms that might occur in the vicinity of their products. (O’Neil, at p. 362.)


                                              9
       More recently this district issued two opinions, Shields and Bettencourt, applying
O’Neil and Tellez-Cordova. Both cases involved claims against Hennessy that were
dismissed by the trial court on motions for judgment on the pleadings. (Shields, supra,
205 Cal.App.4th 782; Bettencourt, supra, 205 Cal.App.4th 1103.) In Shields, the plaintiff
was a mechanic who was diagnosed with lung cancer from asbestos exposure. He
alleged Hennessy was liable in negligence and strict liability. (Shields, supra, 205
Cal.App.4th at p. 784.) The complaint alleged that Hennessy grinders were designed for
use on cars and trucks with brakes that contained asbestos. (Id. at p. 786.) Hennessy
“ ‘specifically designed [its] machines for grinding asbestos-containing brake linings [and
they] had no other function than to grind asbestos-containing brake linings.’ ” This was
their “ ‘only intended use.’ ” (Id. at p. 787.)
       Division One of this court held that plaintiffs’ causes of action were sufficient to
survive a motion for judgment on the pleadings. (Shields, supra, 205 Cal.App.4th at
p. 797.) Plaintiffs alleged that Hennessey designed and manufactured a machine whose
only purpose and “ ‘ “inevitable use” ’ ” was to grind brakes and at “all ‘relevant’ times”
the brakes it was designed to grind contained asbestos. (Ibid.) The asbestos in the brake
linings was “ ‘physically bound’ ” but became airborne due to the grinding action of
Hennessy’s machines. (Ibid.) “Hennessy’s product was intended to be used with another
product for the very activity that created a hazardous situation for the user. Its sole
intended use was for an activity known to Hennessy to pose an unreasonable risk of
harm.” (Ibid.) “[T]he alleged sole and intended use of the brake arcing machine resulted
in the release of contained asbestos particles. These allegations satisfy the circumscribed
parameters of liability articulated by the Court of Appeal in Tellez-Cordova and approved
by the Supreme Court in O’Neil.” (Shields, supra, 205 Cal.App.4th at p. 798.)
       Division Five reached a similar result in Bettencourt. The trial court had granted
judgment on the pleadings on strict liability and negligence causes of action against
Hennessy. (Bettencourt, supra, 205 Cal.App.4th at p. 1111.) The complaint alleged that
“[d]uring the periods relevant to this litigation, all brakeshoe [sic] linings used on
automobiles, light trucks, and commercial trucks in the United States contained


                                              10
asbestos.” (Id. at p. 1108.) Hennessy’s grinders were specifically designed to grind
brakes and had no other function. (Ibid.) The allegation was the sole and intended
purpose of Hennessy’s grinders was to grind brakes and all brake shoe linings in the
United States contained asbestos ,so “it was not only foreseeable that Hennessy’s
machines would be used to grind such linings, this was their inevitable use.”
(Bettencourt, supra, 205 Cal.App.4th at p. 1117.) This allegation is “indistinguishable
from those Tellez-Cordova held sufficient to survive demurrer.” (Bettencourt, at
p. 1117.) “Under the allegations of plaintiffs’ complaints, which we must accept as true,
Hennessy’s ‘product was intended to be used with another product for the very activity
that created a hazardous situation.’. . .” (Ibid., citing O’Neil, supra, 53 Cal.4th at p. 361,
original italics.) Hennessy bears some direct responsibility because its product
substantially contributed to the harm. (Ibid.) Therefore, the court concluded that “[l]ike
our colleagues in Division One, we hold that plaintiffs’ ‘allegations satisfy the
circumscribed parameters of liability articulated by the Court of Appeal in Tellez-
Cordova and approved by the Supreme Court in O’Neil.’. . .” (Bettencourt, at p. 1112,
citing Shields, supra, 205 Cal.App.4th at p. 798.)
       The most recent case to address Hennessy’s liability is Sherman. (Sherman,
supra, 237 Cal.App.4th 1133.) The Second District reversed an award of summary
judgment in favor of Hennessy. Plaintiffs asserted claims for negligence, strict liability
and loss of consortium. (Id. at p. 1137.) Plaintiffs alleged that Hennessy sold grinders
whose “sole function” was to abrade asbestos-containing brake linings, and asbestos dust
was released when the grinders were used. (Ibid.) Hennessy argued that it could not be
held liable under O’Neil unless the machines’ sole intended purpose was to abrade
asbestos-containing brake linings, and plaintiffs did not raise a triable issue of fact
because the undisputed evidence showed that non-asbestos brakes were available during
the relevant time period. (Sherman, at p. 1138.)
       The evidence presented in Sherman is strikingly similar to the evidence presented
by Hennessy in this case. Hennessy relied on the declaration of an industrial safety
expert, Dennis Bridge, and Craig Mountz, a Hennessy engineer. (Sherman, supra, 237


                                              11
Cal.App.4th at p. 1144.) Bridge stated that non-asbestos brake linings were available in
the 1960’s and 1970’s for popular “muscle” cars and some passenger cars. (Ibid.)
Mountz stated that the grinders were designed to work on any type of brake, regardless of
whether it contained asbestos. (Ibid.) Hennessy manufactured different abrasives “to
better tailor” the machine to certain metallic and high performance brake linings. (Ibid.)
Hennessy maintained that during the time Sherman worked with its grinders, there were
non-asbestos brakes available and being used. (Id. at pp. 1144-1145.)
       Sherman presented evidence that during the 1960’s and 1970’s brake linings
“almost universally” contained asbestos. (Sherman, supra, 237 Cal.App.4th at p. 1145.)
Like Rondon in this case, Sherman submitted the declaration of an industrial safety
expert who explained that as late as 1986, 90 to 95 percent of brake linings contained
asbestos. (Id. at p. 1145.) In 1973, Hennessy began offering an asbestos dust collection
system with its grinders along with a warning label that “brake lining materials contain
asbestos.” (Id. at p. 1146, original capitalization omitted.)
       The Second District limited its analysis to whether the Hennessy grinder
“contributed substantially to the harm.” (Sherman, supra, 237 Cal.App.4th at
pp. 1146-1147.) A duty is imposed when “ ‘the intended use of a product inevitably
creates a hazardous situation,’ but not when that situation is merely foreseeable and is
due solely to another product.” (Id. at p. 1147, quoting O’Neil, supra, 53 Cal.4th at
pp. 361-362, original italics.) The court concluded that Hennessy’s grinders were
designed to abrade brake linings for passenger cars and light trucks, “the vast majority of
which contained asbestos from the 1960’s to the mid-1970’s.” (Sherman, at p. 1147.)
Hennessy even began to market an asbestos dust collection system because asbestos
brakes were “near universal.” (Ibid.) The grinder necessarily produced dust in its
intended use which made it “virtually inevitable that the average user would be exposed
to hazardous asbestos dust.” (Id. at p. 1148.) “[T]he machine was intended to be used
with drum brake linings ‘for the very activity’ that generated the asbestos dust, the
creation of which was ‘inevitabl[e]’—rather than merely foreseeable—due to the
overwhelming prevalence of asbestos-containing linings. . . .” (Ibid., fn. omitted.)


                                             12
          The court rejected Hennessy’s argument that its grinders were meant to abrade any
brake lining regardless of the composition, and that the Tellez-Cordova exception applied
when a product can only be used in an injury-producing manner. (Sherman, supra, 237
Cal.App.4th at p. 1148.) “We find the relevant question not whether asbestos-containing
brake linings were necessary to the operation of [Hennessy’s] machine, as Hennessy
maintains, but whether someone using the grinder as intended during the period in
question would invariably have been subjected to asbestos dust. On this record, the
answer is ‘yes.’ ” (Id. at p. 1149.) Sherman’s use of the machine “ ‘for the very activity
that created a hazardous situation’ was not merely possible, but inevitable . . . .” (Ibid.,
quoting O’Neil, supra, 53 Cal.4th at p. 361.) The court further considered the policy
rationale underlying Tellez-Cordova, and the fact that Hennessy derived an economic
benefit from the use of its machines with asbestos-containing brakes. Because a
manufacturer derives an economic benefit from use of its product with certain other
products, “the combined use of the tool with those products inevitably created a
hazardous condition, [thus] it was fair to require the tool manufacturer to share liability
for the resulting injuries.” (Sherman, at p. 1149.) Finally, the court found there was a
triable issue of fact as to whether the brake linings emitted asbestos fibers in the absence
of grinding. (Id. at p. 1152.) Therefore, summary judgment was improperly granted.
(Ibid.)
          We agree with the Second District and conclude that O’Neil does not require
“exclusive use,” but rather requires “inevitable use.” (Sherman, supra, 237 Cal.App.4th
at p. 1149.) O’Neil does not use the term exclusive use; it mentions inevitable use:
“Where the intended use of a product inevitably creates a hazardous situation, it is
reasonable to expect the manufacturer to give warnings.” (O’Neil, supra, 53 Cal.4th at
p. 361, italics added.) The O’Neil court mentioned the concept of a “sole purpose” when
distinguishing Tellez-Cordova. (O’Neil, at p. 361.) The court stated that unlike the
pumps and valves, the power tools in Tellez-Cordova could only be used in an injury-
producing manner. “Their sole purpose was to grind metals in a process that inevitably
produced harmful dust.” (Ibid., italics added.) Shields and Bettencourt echo this “sole


                                              13
use” concept but only to the extent they are accepting the language used in the allegations
of the complaint. Both cases conclude the plaintiffs’ allegations that the grinders’ “sole”
use was to grind asbestos-containing brakes is sufficient to satisfy O’Neil. (Shields,
supra, 205 Cal.App.4th 782; Bettencourt, supra, 205 Cal.App.4th 1103.) But neither
case holds that a finding of sole or exclusive use is necessary under O’Neil.
       The question then becomes: If “virtually all” brake linings during the relevant time
period contained asbestos which resulted in Hennessy’s machines being used 95 or 99
percent of the time to grind brakes producing asbestos dust, did the intended use of the
product inevitably create a hazardous situation? Faced with nearly identical facts, the
Second District answered “yes.” (Sherman, supra, 237 Cal.App.4th 1133.) The record
here reflects that although there were non-asbestos brakes available, they were only in
limited use on high performance and “muscle” cars in the 1960’s and 1970’s.
Hennessy’s machines could be used on non-asbestos brakes and Hennessy produced
different abrasives tailored to non-asbestos brake linings, but given that the vast majority
of brakes contained asbestos, we conclude the “normal operation” of the grinders
inevitably caused the release of asbestos dust. This is contrasted with O’Neil, where the
court held that normal operation of the manufacturer’s pumps and valves did not
inevitably release asbestos dust. This was true even if “normal operation” was defined
broadly to include repair and maintenance. (O’Neil, supra, 53 Cal.4th at p. 361.)
Nothing about the pumps and valves caused the release of dust. Here, the normal
operation of Hennessy’s machines was to grind brakes and release asbestos dust. Its
“intended use was for an activity known to Hennessy to pose an unreasonable risk of
harm.” (Shields, supra, 205 Cal.App.4th at p. 797.)
       The facts here are more akin to Tellez-Cordova because the action of the grinders
caused the release of asbestos dust from the brakes. The hazard was created from the use
of the products together. (Shields, supra, 205 Cal.App.4th at p. 797.) Unlike the pumps
and valves in O’Neil, the grinders here contributed to the hazard by releasing the asbestos
dust from the brake linings. “[Hennessy’s] machine’s role in the creation of the relevant
hazardous condition was not merely foreseeable, but intended and contributed


                                             14
substantially to the condition itself. Similarly, unlike the pumps and valves in O’Neil,
which did not cause the release of asbestos fibers, here, it was the grinding action of
[Hennessy]’s machine that generated the release of harmful asbestos dust.” (Sherman,
supra, 237 Cal.App.4th at p. 1148, fn. 4.)
       The Sherman court rejected Hennessy’s argument that the Tellez-Cordova
exception only applied when a product can solely be used in an injury-producing manner.
(Sherman, supra, 237 Cal.App.4th at pp. 1148-1149.) “We find the relevant question not
whether asbestos-containing brake linings were necessary to the operation of
[Hennessy]’s machine, as Hennessy maintains, but whether someone using the grinder as
intended during the period in question would invariably have been subjected to asbestos
dust.” (Id. at p. 1149.) The court concluded that use of the machine “ ‘for the very
activity that created a hazardous situation’ was not merely possible, but inevitable . . . .”
(Ibid., quoting O’Neil, supra, 53 Cal.4th at p. 361.)
       The Sherman court found that Hennessy grinders were designed for passenger cars
and trucks, “the vast majority of which contained asbestos from the 1960’s to the mid-
1970’s.” (Sherman, supra, 237 Cal.App.4th at p. 1147.) Also, Hennessy began to market
an asbestos dust collection system in 1973 because asbestos-containing brakes were “near
universal.” (Ibid.) The grinders necessarily produced dust in their intended use, which
made it “virtually inevitable that the average user would be exposed to hazardous
asbestos dust.” (Id. at pp. 1147-1148.)
       We are further persuaded by the policy argument advanced in Sherman. Because
a manufacturer derives an economic benefit from use of its product with certain other
products, and “the combined use of the tool with those products inevitably created a
hazardous condition, it was fair to require the tool manufacturer to share liability for the
resulting injuries.” (Sherman, supra, 237 Cal.App.4th at p. 1149.) The policy rationale
underlying Tellez-Cordova was that if a manufacturer’s product contributed to the
hazardous situation, the manufacturer should be held liable. The combined use of
Hennessy’s machines with the asbestos-containing brakes inevitably created a hazardous
condition by releasing asbestos fibers into the air. Hennessy was in a position to provide


                                              15
safeguards from this exposure. Hennessy’s ability do to this is evidenced by the addition
of asbestos dust collectors to all machines in 1973. Rondon should therefore be given the
opportunity to prove that Hennessy shares liability for injuries resulting from the
hazardous condition created by the use of its grinders in the 1960’s and 1970’s.
C.     Negligence
       The existence of a duty of care is a legal question for the court. (Taylor v. Elliott
Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 593.) The question before us is
the same as posed in O’Neil: whether a manufacturer owes a duty of care to prevent
exposure posed by another manufacturer’s product. (O’Neil, supra, 53 Cal.4th at
pp. 364-365.)
       Bettencourt held the plaintiffs had stated a cause of action for negligence because
strict liability and negligence parallel and supplement each other. (Bettencourt, supra,
205 Cal.App.4th at p. 1118.) The same policy considerations that militate in favor of the
imposition of strict liability apply with equal force to negligence. (Ibid.) “Because
plaintiffs state a cause of action for strict liability under the rules announced in O’Neil,
we likewise find their allegations sufficient to state a cause of action for negligence.”
(Bettencourt, at p. 1118.)
       Under O’Neil, a product manufacturer may be liable for the harm caused by
another product where the manufacturer’s product contributes substantially to the harm.
(O’Neil, supra, 53 Cal.4th at p. 362.) In Rowland v. Christian (1968) 69 Cal.2d 108
(Rowland), our Supreme Court set forth the principal factors we must weigh in
determining the existence of a duty, including: (1) the foreseeability of harm to the
plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of
the connection between the defendant’s conduct and the injury suffered, (4) the moral
blame attached to the defendant’s conduct, (5) the policy of preventing future harm,
(6) the extent of the burden to the defendant and consequences to the community of
imposing a duty to exercise care with resulting liability for breach, and (7) the
availability, cost, and prevalence of insurance for the risk involved. (Id. at p. 113; see
also Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.)


                                               16
       In light of our analysis of the strict liability issue, we conclude that there is also a
triable issue as to negligence. We will, however, briefly review the Rowland factors as
they apply here.
       Rondon stresses the first factor: The foreseeability of the risk Hennessy’s grinders
posed to mechanics using them. The recognition of a legal duty of care “ ‘ “depends
upon the foreseeability of the risk and a weighing of policy considerations for and against
imposition of liability.” ’. . .” (O’Neil, supra, 53 Cal.4th at p. 364, quoting Burgess v.
Superior Court (1992) 2 Cal.4th 1064, 1072.) In O’Neil, the court held it was not
foreseeable that the plaintiff, who worked around the manufacturer’s pumps and valves
more than 20 years later would develop an injury nearly 40 years after his workplace
exposure. (O’Neil, at p. 365.) Here, the intended use of the grinders was to grind brake
linings, the vast majority of which contained asbestos. Hennessy knew the normal and
intended use of its grinders released asbestos dust. The “alleged injuries were not
unforeseeable merely because Hennessy’s brakeshoe [sic] grinding machines did not
themselves contain asbestos.” (Bettencourt, supra, 205 Cal.App.4th at p. 1118.)
Hennessy is liable for the design and warning defects of its own product which produced
harmful asbestos dust during normal use in grinding brake linings. (See id. at
pp. 1118-1119.) We conclude it was foreseeable the average user would be exposed to
asbestos dust.
       Hennessy does not dispute the second factor that Rondon’s death was caused by
mesothelioma from exposure to asbestos, but argues the third factor that connection
between Hennessy’s conduct and Rondon’s injuries is remote. Rondon used Hennessy’s
arcing machines beginning in 1965 when “virtually all” brake linings contained asbestos.
(Contrast Taylor v. Elliott Turbomachinery Co., Inc., supra, 171 Cal.App.4th at
pp. 594-595, original italics [“Respondents’ allegedly culpable conduct is the failure to
warn of a danger arising from other manufacturer’s products two decades after
respondents delivered their products to the Navy. Any connection between respondents’
conduct and Mr. Taylor’s injury is thus highly attenuated.”].) The connection here is not



                                              17
attenuated, the ordinary use of Hennessy’s machines exposed Frank Rondon to asbestos
dust contributing to his injuries.
       The fourth factor is moral blame. While Hennessy did not manufacture an
asbestos product, it knew for decades that its machines, when used as intended, would
release hazardous asbestos dust into the air. When required by regulations in 1973,
Hennessy provided asbestos dust collectors and warnings about asbestos dust on all
machines. Hennessy, therefore, should bear some level of responsibility for the asbestos
exposure caused by use of it is grinders which could have been reduced or prevented by
warnings or added safety features.
       As to the fifth factor, whether imposing a duty of care could prevent future harm,
Hennessy had the ability to lessen the harm from use of its grinders. In O’Neil, the court
concluded “[t]here is no reason to think a product manufacturer will be able to exert any
control over the safety of replacement parts or companion products made by other
companies.” (O’Neil, supra, 53 Cal.4th at p. 365.) Here, Hennessy could have exerted
control over the safety of its machines by providing an asbestos dust collection system
(prior to 1973) and providing warnings. Hennessy may not have been able to control the
types of brakes manufactured by other companies, but it could ensure that its machines
were more safely used with any type of brake. “Hennessy is not being asked to ‘insure
against products over which [it has] no control’. . . . [P]laintiffs seek to hold Hennessy
liable for design and warning defects in Hennessy’s own product, not the products of
others.” (Bettencourt, supra, 205 Cal.App.4th at p. 1118.)
       The sixth factor is the burden on defendant and consequences for imposing a duty
of care. “Even when foreseeability was present,” our Supreme Court has “declined to
allow recovery on a negligence theory when damage awards threatened to impose
liability out of proportion to fault or to promote virtually unlimited responsibility for
intangible injury.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 398.)
Mesothelioma caused by direct exposure to asbestos being released by the use of
Hennessy grinders does not extend liability to an unlimited number of individuals.



                                              18
Imposing such a duty undoubtedly creates a burden on Hennessy, but this burden is not
out of proportion to its fault in creating the harm.
       The final factor is the availability and cost of insurance for the risk involved. This
factor counsels against finding a duty of care where a manufacturer must insure against
the “ ‘unknowable risks and hazards’ lurking in every product that could possibly be used
with or in the manufacturer’s product. [Citation.]” (O’Neil, supra, 53 Cal.4th at p. 365.)
Here, however, Hennessey knew that its grinders were designed to be used almost
exclusively with asbestos-containing brake linings. It was not faced with an unknowable
risk or hazard.
       Our conclusion that a duty exists in this case is not the equivalent of a finding of
negligence against Hennessy. (See Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th at
p. 772 [noting the “crucial distinction” between a determination that the defendant owed
the plaintiff a duty of ordinary care, “which is for the court to make, and a determination
that the defendant did not breach the duty of ordinary care, which in a jury trial is for the
jury to make” (original italics)].) We, however, conclude there are factual issues to be
resolved by the trial court.3
                                             IV.
                                      DISPOSITION
       The judgment is reversed.




       3
         Given our disposition, we need not reach Rondon’s claims that the trial court
improperly excluded (1) the 2012 deposition of Craig Mountz in Caffrey v. Armstrong
International, Inc. in Madison County, Illinois, Circuit Court (Case No. 11 L 1335) and
(2) the 2008 deposition of Craig Mountz in Ornstein v. Alfa Laval, Inc. Los Angeles
County Superior Court (Case No. BC388810) in ruling on Hennessy’s summary
judgment motion.
       The two deposition transcripts from the prior cases are largely duplicative of
Mountz’s declaration and deposition in this case and, as both parties agree, were not
necessary to decide the issues before us on appeal. Our review of the evidence was
limited to the items found admissible by the trial court.


                                              19
                                 _________________________
                                 RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




                            20
Filed 6/7/16
               COURT OF APPEAL, FIRST APPELLATE DISTRICT
                             350 MCALLISTER STREET
                             SAN FRANCISCO, CA 94102
                                   DIVISION 4




RENEE RONDON,
Plaintiff and Appellant,
v.
HENNESSY INDUSTRIES, INC.,
Defendant and Respondent.

A141686
Alameda County No. RG13695174



BY THE COURT:


      Good cause appearing, the request filed on May 27, 2016 by appellant Renee
Rondon to publish this court's May 9, 2016 opinion is granted.

        The May 9, 2016 opinion is now certified for publication pursuant to rule
8.1105(b) of the California Rules of Court, and the opinion shall be published in the
official reports.




                                            1
Trial Court:                          Alameda County Superior Court
Trial Judge:                          Hon. Jo-Lynne Q. Lee
Counsel for Appellant:                      Kazan, McClain, Satterley &
Greenwood,
                                      Ted W. Pelletier and Michael T. Stewart

Counsel for Respondent:               Gordon & Rees, Don Willenburg and
                                      Mitchell B. Malachowski




A141686, A142411, Rondon v. Hennessy Industries, Inc.



                                         2
