KELLY, et al. vs BIRD INCORPORATED, et al.

24CV069777: KELLY, et al. vs BIRD INCORPORATED, et al. 07/16/2026 Hearing on Motion for Summary Judgment filed by HONEYWELL INTERNATIONAL, INC. (Defendant) CRS# 547800124494 in Department 18

Tentative Ruling - 07/15/2026 Patrick McKinney

The Motion for Summary Judgment/Adjudication filed by HONEYWELL INTERNATIONAL, INC. on 04/24/2026 is Granted in Part.

BACKGROUND Plaintiff Jason Kelly (“Plaintiff”) alleges that he was diagnosed with asbestos-caused lung cancer as a consequence, at least in part, of his proximity to his father and stepfather while they performed automotive repair jobs from about 1974-1986. Plaintiff asserts that he observed the performance of brake replacements and installations which created dusty conditions, which were then cleaned up with compressed air. (PAMF Nos. 5-9; UMF Nos. 8, 13.) Plaintiff contends that this work regularly involved asbestos-containing Bendix brakes, for which Sterling Wander LLP f/k/a Honeywell International Inc. as successor-in-interest to Bendix (“Defendant”) is responsible.

Defendant moved for summary judgment (“MSJ”) on the grounds that Plaintiff lacks and cannot reasonably obtain evidence that he was exposed to asbestos-containing products attributable to Defendant sufficient to support a finding of threshold exposure to asbestos. Defendant also moved in the alternative for summary adjudication (“MSA”) as to Plaintiffs’ causes of action for false representation and intentional tort and claim for punitive damages.

Plaintiffs state in opposition that they waive their third and fourth causes of action for negligent misrepresentation and fraud. Defendant states in its reply brief that it withdraws its request for summary judgment. Thus, the only remaining issue before the court is whether summary adjudication is warranted as to Plaintiff’s request for punitive damages.

LEGAL STANDARD “A party may move for summary adjudication as to one or more causes of action within an action . . . [or] one or more claims for damages . . . if the party contends that the cause of action has no merit . . . [or] that there is no merit to a claim for [punitive damages] . . . .” (Cal. Civ. Proc. Code § 437c(f)(1).) “A defendant . . . has met [their] burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established . . . .” (§ 437c(p)(2); see also Collin v.

CalPortland Co. (2014) 228 Cal. App. 4th 582, 587 (“A defendant moving for . . . summary adjudication need not conclusively negate an element of the plaintiff’s cause of action. Instead, the defendant may show through factually devoid discovery responses that the plaintiff does not possess and cannot reasonably obtain needed evidence.”).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action . . . .

The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action . . . .” (Cal. Civ. Proc. Code § 437c(p)(2).) “A motion for summary adjudication shall be granted 24CV069777: KELLY, et al. vs BIRD INCORPORATED, et al. 07/16/2026 Hearing on Motion for Summary Judgment filed by HONEYWELL INTERNATIONAL, INC. (Defendant) CRS# 547800124494 in Department 18 only if it completely disposes of a cause of action . . . [or] a claim for damages . . . .” (§ 437c(f)(1).)

As explained below, the motion for summary adjudication is granted in its entirety.

DISCUSSION In accordance with the parties’ representations, the court denies Defendant’s MSJ and grants summary adjudication as to Plaintiffs’ third and fourth causes of action for negligent misrepresentation and fraud.

Defendant moves for summary adjudication as to Plaintiffs’ request for punitive damages on the grounds that Plaintiffs lacks clear and convincing evidence that Defendant acted with malice, oppression, or fraud towards Plaintiffs or those similarly situated.

To be entitled to an award of punitive damages, a plaintiff must show by clear and convincing evidence that the defendant is guilty of malice, oppression or fraud. (Cal. Civ. Code § 3294(a).) The definition of “malice” includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (§ 3294(c).) “Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people. (See CACI 3946.)

A finding of malice does not require an actual intent to cause harm. “Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” (Pfiefer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)

Further, a defendant’s “prolonged failure” to take adequate measures to protect people who worked with its products against a known hazard to their health and safety may justify a conclusion that the conduct was malicious, fraudulent, or oppressive. (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 86.) However, the Cal. Supreme Court has stated that by addition of the word “despicable” to Civ. Code § 3294(c), “the statute plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)

A clear and convincing evidentiary standard applies to evidence presented by a plaintiff in opposition to a motion for summary adjudication of punitive damages claims. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1118-1119.) However, the clear and convincing evidentiary standard “does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary [adjudication].” (Pacific Gas and Electric Co. v. Superior Court (2018) 24 Cal.App.5th 1150, 1158-1159.) “Summary adjudication ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV069777: KELLY, et al. vs BIRD INCORPORATED, et al. 07/16/2026 Hearing on Motion for Summary Judgment filed by HONEYWELL INTERNATIONAL, INC. (Defendant) CRS# 547800124494 in Department 18 convincing proof of malice, fraud or oppression.’” (Ibid.)

Further, a defendant moving for summary adjudication must still make an initial prima facie showing that no disputed issues of material fact exist such that defendant is entitled to summary adjudication as a matter of law in order to shift the burden of production to plaintiff to present clear and convincing evidence of malice, oppression or fraud. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.)

Defendant contends that Plaintiffs’ responses to comprehensive discovery requests regarding Plaintiffs’ punitive damages request are “factually devoid” to the extent that no facts are asserted to establish that any Defendant “officer, director, or managing agent committed, authorized, ratified, or adopted conduct amounting to malice, fraud, or oppression.” (Reply, 2:8-2:10.) Defendant also argues that Plaintiffs do not put forth evidence of Defendant’s corporate decision-making structure or other basis to infer that Defendant made product safety decisions warranting punitive damages.

Plaintiffs’ response to Special Interrogatory 21 (seeking all facts as to Plaintiffs’ request for punitive damages), which incorporates the response to SROG 1, asserts that Defendant knew of the dangers of asbestos by the 1970s by way of Friction Materials Standards Institute, Asbestos Study Committee meetings attended by Defendant’s corporate representatives and its own internal documents. (Def’s Index, Exh. 3 at 4:22-4:26.) Plaintiffs’ response to SROG 1 then describes FMSI ASC meetings at which asbestos releases during brake projects was discussed as well as an internal Defendant memorandum which Plaintiffs claim “recognized the brake relining caused exposures exceeding then-existing regulatory limits up to seventy-five feet away. (Id. at 6:15-6:20.)

Plaintiffs also contend in response to SROG 1 that Defendant knew that asbestos caused mesothelioma by the late 1960s. While Plaintiffs’ discovery responses provide a wealth of facts regarding Defendant’s apparent knowledge of the dangers of asbestos, they do not set forth facts that Defendant’s officers, directors, or managing agents acted with malice, oppression, or fraud toward Plaintiffs. In fact, many of the alleged facts demonstrate the opposite, if anything. For instance, at a 1979 meeting, Defendant appeared to commit itself to doing more than the law requires to protect against asbestos-related illness. (Id. at 11:26-12:9.)

Moreover, Defendant contends that it placed warning labels on its asbestos-containing products in 1973, shortly after OSHA regulations regarding asbestos had been issued. Thus, while Plaintiffs’ discovery responses contain a wealth of information, the court finds them factually devoid on the specific issue of whether Defendant or its officers, directors, or managing agents acted with malice, oppression or fraud. The burden thus shifts to Plaintiffs to set forth affirmative evidence sufficient to create a triable issue of material fact.

Plaintiffs’ opposition papers, devoted mostly to contending that their discovery responses were not factually devoid, fail to do so.

Plaintiffs’ opposition leans heavily on the so-called E.A. Martin Letter and Memo, dated September 2, 1966 and September 29, 1966, respectively. Martin was Bendix’s Director of Purchases. These materials do not pertain to working with brake pads in the manner Plaintiff’s

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV069777: KELLY, et al. vs BIRD INCORPORATED, et al. 07/16/2026 Hearing on Motion for Summary Judgment filed by HONEYWELL INTERNATIONAL, INC. (Defendant) CRS# 547800124494 in Department 18 father and stepfather did, nor do they establish that Defendant acted with malice, fraud or oppression. Plaintiffs contend that the warning labels Defendant affixed in 1973 were inadequate because they did not link asbestos to cancer and because end users did not necessarily see the labels. Even inferring in Plaintiff’s favor that this is true, it amounts to a negligence or gross negligence finding at most, not clear and convincing evidence of malice, oppression or fraud. In sum, even making all inferences in their favor, Plaintiffs fail to create a triable issue of material fact as to whether punitive damages are warranted.

ORDERS

Defendant’s MSJ, having been withdrawn, is DENIED. Defendant’s MSA is GRANTED as to Plaintiffs’ waived claims for negligent misrepresentation and fraud. Defendant’s MSA is GRANTED as to Plaintiffs’ request for punitive damages.

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