Tobacco Documents Online

J 1 2 3 4 9 10 11 12 13 14 15 16 17 18 19 20 21 28 was adequately pleaded. Now, after pleadings have closed, defendants raise this issue for the first time. It is respectfully submitted that complaint adequately advised defendants of all of the pertinent causes of action. If not, plaintiffs will seek leave of court to make the technical amendment to satisfy defendants' quibble. II.FACTUAL BACKGROUND The original version of Civil Code Section 1714.45, which became effective January 1, 1988, exempted a manufacturer or seller from liability in a nrouct lia 'li action if (1) the product was inherently unsafe and was known to be unsafe by the ordinary consumer, and (2) the product was a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, tobacco, and butter. Civil Code Section 1714.45 was amended effective January 1, 1998. The new code section deletes tobacco from the illustrative list of common consumer products and also specifies that the exemption described therein does not exempt tobacco manufacturers from product liability actions. Section 1714.45, as amended, ~ also declares that there is no statutor,v bar to tobacco-related personal injury, wrongful death, or other tort claims against tobacco manufacturers by smokers or others and that such claims "which were or are brought shall be determined on their ~ merits". Q` V V W Cc V O Plaintiffs' Points & Authorities In Opposition to Motion For 2 Judgment on the Pleadings Case No. C-99-01797 MMC

1 2 3 4 5 6 7 13 23 24 25 26 27 28 11 I. INTRODUCTION From January 1, 1988 until January 1, 1998, California Civil Code § 1714.45 immunized tobacco companies from product liability actions. During those dark days, the families of people killed by tobacco had no recourse in law. Now, 16 months after the death of this misguided immunity, defendants try to resurrect the immunity in the hopes that its ghost will continue to haunt the families of those people killed by tobacco. The simple fact is that the immunity is over and defendants are now responsible for their conduct that killed plaintiff s decedent on January 2, 1998. Defendants have filed a "canned" brief, which is nearly identical to ones filed previously in other courts. While this practice may be economical for defendants, it creates unnecessary work for the Court and plaintiffs' counsel because the brief takes square aim at issues absent from plaintiffs' complaint. Indeed, the brief virtually ignores the fact that the Guzman's action - unlike the previous actions in which defendants have filed their brief - is a wrongful death action. California law clearly holds that wrongful death actions do not accrue until s the death of plaintiffs' decedent. Given the fact that plaintiffs' loved one, Jose Guzman, died on January 2, 1998, one day after the immunity ended, defendants' argument must necessarily fail here. Defendants' other argument regarding punitive damages is an exercise in form over substance. When the matter was filed in State Court, defendants did not bother to demurrer regarding the capacity of plaintiffs and whether a survival action Plaintiffs' Points & Authorities In Opposition to Motion For Judgment on the Pleadings Case No. C-99-01797 MMC

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Guzman. Defendants's brief at page 10, lines.21-2 admits that a successor in interest may bring such claims. Defendants obviously understand these claims, because they did not demurrer to the complaint when it was originally filed in California State Court. Now, defendants belatedly raise a pleading technicality that they should have raised long ago in State Court. Plaintiffs' complaint provides ample notice that plaintiffs seek punitive damages as well as the basis for the claims. Given the fact that federal pleading requirements are extremely liberal and pleadings are construed in favor of the pleader, it is respectfully submitted that defendants' motion be denied as it regards plaintiffs' punitive damage claims. If not, plaintiffs will seek leave of Court to cure the perceived technical deficiencies. IV. CONCLUSION Plaintiffs' cause of action for wrongful death did not accrpe until the day after defendants' immunity ended. Thus, defendants are not immune from suit and this motion should be denied. \\\\\ \\\\\ DATED: June 4, 1999 THE LAW OFFICES OF THOMAS J. BRANDI BY TERENCE D. EDWARDS Attorneys for Plaintiffs 7 Plaintiffs' Points & Authorities In Opposition to Motion For Judgment on the Pleadings Case No. C-99-01797 MMC

I Ill. LEGAL ARGUMENT 4 5 6 7 8 9 10 11 12 13 23 24 25 26 27 28 A. Summary of Argument Close inspection reveals that defendants' arguments regarding § 1714.45 immunity are little more than wishful thinking parading as legal reasoning. Plaintiffs' cause of action for wrongful death did not accrue until Mr. Guzman's death - which defendants admit occurred after the immunity lapsed. B. Defendants' Immunity Claims Fail Because Plaintiffs' Claims for the Wrongful Death of Jose Guzman Did Not Accrue until His Death, After the Immunity Provided by 1714.45 Ended. Before discussing the specifics of what Mrs. Guzman's claims are about, let us be clear about what they are NOT about. Mr. Guzman is not the plaintiff. He is deceased. Instead, plaintiffs are the widow of Mr. Guzman and their minor and adult children. ; 1. A Wrongful Death Action Does Not Accrue Until The Death of Plaintiffs' Decedent California Code of Civil Procedure §377.60 provides: "A cause of action for ~p rn the death of a person caused by the wrongful act or neglect of another may be 1-13 v asserted by any of the following persons ..." Under a wrongful death action, the M specified heirs are entitled to recover damages on their own behalf for the loss that v _..a Plaintiffs' Points & Authorities In Opposition to Motion For Judgment on the Pleadings Case No. C-99-01797 MMC

J • I 2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FEDERAL CASES Flora v. Home Federal Savings & Loan Ass'n, (7,n Cir. 1982) 685 F.2d 209, 211 .......................................................................................... 5 General Conference Corp. of Seventh-Day Adventists v. Seventh Day Adventist Congregational Church, (9`z, Cfr. 1989) 887 F2d 228, 230 .................................................................... 5 CALIFORNIA STATUTES California Code of Civil Procedure §340(3) ..........................................................................3 California Code of Civil Procedure §377.20 .........................................................................3 California Code of Civil Procedure §377.60 .........................................................................3 California Code of Civil Procedure § 1714.45 ...............................................................1, 2, 3 OTHER AUTHORITY 3 Witkin, Cal. Procedure (4th ed., 1996) Actions, §519, p.651-2 ............................. 5 Plaintiffs' Points & Authorities In Opposition to Motion For iii Judgment on the Pleadings Case No. C-99-01797 MMC

I 2 TABLE OF CONTENTS I. INTRODUCTION ..............................................................................................1 II. FACTUAL BACKGROUND ............................................................................ 2 III. LEGAL ARGUMENT .................................................................................... 3 A. SUMMARY OF ARGUMENT ................................................................................. 3 B. DEFENDANTS' IMMUNITY CLAIMS FAIL BECAUSE PLAINTIFFS' CLAIMS FOR THE WRONGFUL DEATH OF JOSE GUZMAN DID NOT ACCRUE UNTIL HIS DEATH, AFTER THE IMMUNITY PROVIDED BY 1714.45 ENDED . ........................................... 3 1. A Wrongful Death Action Does Not Accrue Until The Death ofPlaintiffs' Decedent .................................................................................................... ........... 3 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Defendants' Immunity Ended on January 1, 1998 ......................................... 5 3. Plaintiffs' Decedent Died on January 2, 1998 ............................................... 5 4. Thus, Defendants Are Not Immune From Suit ............................................... 5 5. The Cases Cited by Defendants regarding Mr. Guzman's Claims Have No Value as Precedents and, More Importantly, Are Irrelevant Since Mr. Guzman is not the Plaintiff ................................................................................................. 6 C. DEFENDANTS' ARGUMENTS REGARDING PUNITIVE DAMAGES ELEVATE FORM OVER SUBSTANCE .................................................................................................... 6 IV. CONCLUSION ................................................................................................? . Plaintiffs' Points & Authorities In Opposition to Motion For i Judgment on the Pleadings Case No. C-99-01797 MMC

I 1 2 3 4 5 6 20 21 22 23 24 25 26 27 28 until after Mr. Guzman died. Absent this element, plaintiffs simply would not have NO a claim. It is preposterous to argue„as defendants do that all necessary elements of il plaintiffs' claims occurred while the immunity was in effect and before the death of ~, Mr. Guzman. 5. The Cases Cited by Defendants regarding Mr. Guzman's Claims Have No Value as Precedents and, More Importantly, Are Irrelevant Since Mr. Guzman is not the Plaintiff Defendants cite a number of decisions of Superior and District Courts in support of their arguments.' Obviously, these "decisions" have no precedential value. G~, 7 More importantly, not a single one of these cases arose from a wrongful death action. None arose from a death that occurred after the immunity provided by § 1714.45 ended. Thus, they are irrelevant to the facts at hand. Cf ~-- (/W C. Defendants' Arguments Regarding Punitive Damages Elevate Form over Substance It is apparent from review of plaintiff s complaint that decedent's widow asserts various claims and seeks punitive damages as the successor in interest to Mr. %10 0\ V t Baker v. Philip Morris. Inco orprated, No. 98-1684-IEG (LSP), slip op. (S.D. Cal. Jan. 28, v l d i b `h ~" 1999) appea ocketed, No. 99-55391 (U.S.C.A. 9 r. Fe . 23, 1999): Pavolini v. C Ravbestos-Manhattan. Inc., No. 992223, appeal docketed, No. A084371 (Cal. Ct. App., 1" v App. Dist., Div. I, Sept. 8, 1998); Van Fossen v. American Tobacco Co., No CIV 5-98- -h 1694 GEB DAD, slip. Op. (E.D. Cal. Jan 22, 1999); Shinunoff v. American Tobacco Co., CIV S-98-1696 GEB PAN, slip op. (E.D. Cal. May 4, 1999). oc Plaintiffs' Points & Authorities In Opposition to Motion For 6 Judgment on the Pleadings Case No. C-99-01797 MMC

1 THOMAS J. BRANDI (Bar No. 53208) DONALD J. SULLIVAN (Bar No. 51664) 2 MYLENE L. REUVEKAMP (Bar No. 137296) EDWARDS (Bar No 168095) TERENCE D 3 . . LAW OFFICES OF THOMAS J. BRANDI 4 44 MONTGOMERY STREET, SUITE 1050 San Francisco, California 94104 5 Telephone: 415/989-1800 Facsimile: 415/989-1801 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SARA GUZMAN individually and as Guardian ) No. 99 1797 MMC 10 , ad litem for MARIO GUZMAN and KEVIN ) 11 GUZMAN, minors, ERIC GUZMAN AND ) ROBERT GUZMAN ) 12 ) Plaintiffs, ) 13 ) Vs. ) Plaintiffs' Opposition to 14 ) Motion for Judgment on the 15 PHILLIP MORRIS TOBACCO COMPANY, R. J. ) Pleadings _ REYNOLDS TOBACCO COMPANY; BRITISH ) 16 AMERICAN TOBACCO [BAT] ; BROWN & ) WILLIAMSON TOBACCO CORPORATION; ) 17 BROWN & WILLIAMSON TOBACCO ) CORPORATION as successor by merger to THE ) 18 AMERICAN TOBACCO COMPANY and its ) 19 predecessors in interest; LORILLARD, INC, as ) successor by merger to P. LORILLARD and/or ) Date: June 25, 1999 20 LORILLARD TOBACCO COMPANY; ) Time: 9:00 a.m. LIGGETT GJ~OUP, INC. formerly known as ) Dept.: Courtroom 2, 17`s Fl. 21 LIGGETT & MYERS TOBACCO COMPANY; ) Judge: The Hon. Maxine M. DOE MANUFACTURERS AND DOE ) Chesney 22 DISTRIBUTORS OF DIPLOMATS, DELTA, ) 110 23 ALAS, REX AND WINDSOR CIGARETTES ) DOES 1 THROUGH 200, inclusive, ) O\ V 24 ) Defendants. ) V 25 0C 01% 26 CIn 27 28 Plaintiffs' Points & Authorities In Opposition to Motion For Judgment on the Pleadings Case No. C-99-01797 MMC

I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 they have sustained by reason of their loved one's death. See Jacoves v. United Merchandisin Corn. 9 Ca1.App.4`" 88, 105, 11 Cal.Rptr. 468, 478 (1992). The purpose behind wrongful death statute is to provide compensation for loss of companionship and other losses resulting from decedent's death. Phraner v. Cote Mart Inc. 63 Ca1.Rptr.2d 740, 55 Cal.App.4th 166 (1997), review denied. Wrongful death actions are subject to the general 1 year statute of limitations set forth in CCP §340(3). The applicable statutory period commences to run from the date of the victim's death - not the date of the pre-death injury or "discovery" of the injury. Tann v. Western Pac. Ry. Co. 39 Cal.App. 377,178 P. 971 (1919); k'erguson v. Dragul 187 Cal.App.3d 702,232 Cal.Rptr. 79 (1986). In wrongful death actions, "no cause of action accrues until death results." Priola v. Paulino 72 Ca1.App.3d 380, fn 5, 140 Cal. Rptr. 186, fn 5(1977). ee also, Walton v. Southern Pac. Co. 8 Cal.App.2d 290, 304, 48 P.2d 108 (1935) ("A cause of action for wrongful death of another is, in California, brought under the provisions of section 377 of the Code of Civil Procedure, and the period of limitations (one year) runs from the date of the death and not from the date of the s accident. .. "[internacitations omitted]; See 1 o, Marks v. Reissinaer 35 Cal.App. 44, 53; 169 P. 243 (1917). ~ ~ As Mr. Witkin notes "The cause of action for wrongful death is distinct from V that for personal injuries." 3 Witkin, Cal. Procedure (4th ed., 1996) Actions, §519, cc V p.651-2. Consequently, where a person sues for injuries and then dies, his PQ dependents may bring a new action for wrongful death within 1 year after his death, Plaintiffs' Points & Authorities In Opposition to Motion For 4 Judgment on the Pleadings Case No. C-99-01797 MMC

TABLE OF AUTHORITIES 4 9 10 11 12 13 14 15 16 17. 18 19 20 21 22 23 24 25 26 27 28 CALIFORNIA CASES Ferguson v. Dragul .................................................................................................... . 4 187 Ca1.App.3d 702 232 Cal. Rptr. 79 (1986) Jacoves v. United Merchandising Corp . ................................................................................4 9 Ca1.App.4`h 88 11 Ca1.Rptn 468 (1992) Marks v. Reissinger ..................... :.......................................................................................... ..........................5 35 CaLApp.44 169 P. 243 (1917) Phraner v. Cote Mart, Inc . .......................................................................................... 4 63 CaLRptr.2d 740 55 Ca1.App.4th 166 (1997) Priola v. Paulino .................................................................................................... ...... 4 72 Ca1.App.3d 380 140 CaL Rptn 186, (1977) Reuna v. City and County of San Francisco ............................................................... 4 69 CaLApp.3d 876 138 Ca1.Rptr. 504 (1977) Tann v. Western Pac. Ry. Co .................................................................................. 4,5 39 CaLApp. 377 178 P. 971 (1919) Walton v. §outhern Pac. Co ........................................................................................4 8 Cd1.App.2d 290 48 P.2d 108 (1935) Wohlgemuth v. Meyer ................................................................................................ 5 139 CaLApp.2d 326 %~D rn P.2d 816 (1956) v ~ (s! Cc ~ ~ Plaintiffs' Points & Authorities In Opposition to Motion For ii Judgment on the Pleadings Case No. C-99-01797 MMC