Hernandezcueva v. E.F. Brady Co.
196 Cal. Rptr. 3d 594
Cal. Ct. App.2015Background
- E.F. Brady, a large drywall/subcontracting firm, bid on and performed drywall and joint-compound work for Fluor’s commercial complex in the mid-1970s; its bids included materials (≈25% of bid) and a small markup.
- E.F. Brady ordered materials through suppliers (e.g., Expo), installed Kaiser drywall and initially Kaiser joint compound, then switched to Hamilton joint compound after performance problems; both products were later shown to contain asbestos.
- Joel Hernandezcueva worked as a janitor at the Fluor complex (1992–1995), cleaned up drywall debris, inhaled dust, and was diagnosed with mesothelioma in ~2011.
- The Hernandezcuevas sued multiple defendants alleging negligence and strict products liability; after plaintiff’s case-in-chief the trial court granted E.F. Brady’s partial nonsuit on strict liability but allowed negligence to proceed; jury found no negligence.
- On appeal, the court considered whether a subcontractor that purchases and installs defective mass‑produced components can be subject to strict products liability under the stream‑of‑commerce theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether E.F. Brady can be subject to strict products liability for asbestos in products it purchased and installed | E.F. Brady was more than an incidental service provider: it routinely supplied materials as part of bids, made substantial purchases, had ongoing relationships with manufacturers, and thus participated in the stream of commerce | E.F. Brady was a subcontractor whose primary role was providing services; it merely installed products bought from others (like Monte Vista) and thus is not a "seller" for strict liability | Reversed nonsuit: evidence was sufficient for a jury to find E.F. Brady in the stream of commerce and potentially subject to strict liability; remanded for further proceedings |
| Whether Monte Vista (subcontractor immunity) controls | Hernandezcueva distinguishes Monte Vista because E.F. Brady’s practice made material supply essential to its business and it actively engaged manufacturers when products failed | E.F. Brady relied on Monte Vista to argue subcontractor supplying/installation is incidental and not a 402A seller | Monte Vista distinguished on facts; court found Brady’s role akin to a commercial supplier (Barth) rather than an occasional purchaser |
| Whether public policy or alternative compensation systems (bankruptcy trusts) preclude strict liability | Plaintiff notes policy goals of strict liability (allocate costs to those in position to bear them and to promote safety); no evidence plaintiffs received trust payments | Amici argued broad subcontractor immunity and availability of asbestos bankruptcy trusts should foreclose strict liability | Court rejected blanket immunity and trust-based preclusion absent evidence of payments; policy supports fact‑sensitive inquiry |
| Whether pleading/naming defect (E.F. Brady as Doe) forfeits plaintiff’s claim | Plaintiff argues defendant waived any procedural defect by answering and litigating nonsuit | E.F. Brady argued it wasn’t properly named as a strict liability defendant | Court held Brady forfeited the pleading‑defect defense by failing to demur and by litigating the case on the merits |
Key Cases Cited
- Greenman v. Yuba Power Prods., 59 Cal.2d 57 (Sup. Ct. 1963) (establishes strict products liability rationale)
- Jimenez v. Superior Court, 29 Cal.4th 473 (Cal. 2002) (component manufacturers/suppliers can be treated like manufacturers for strict liability)
- Monte Vista Dev. Corp. v. Superior Court, 226 Cal.App.3d 1681 (Ct. App. 1991) (subcontractor who supplied fixtures held not a seller under 402A; distinguished)
- Barth v. B.F. Goodrich Tire Co., 265 Cal.App.2d 228 (Ct. App. 1968) (dealer that supplied and installed defective tires treated as part of marketing enterprise)
- Kasel v. Remington Arms Co., 24 Cal.App.3d 711 (Ct. App. 1972) (stream‑of‑commerce participatory connection, not legal label, governs strict liability)
- Bay Summit Cmty. Assn. v. Shell Oil Co., 51 Cal.App.4th 762 (Ct. App. 1996) (policy basis: those in marketing chain can bear costs and pressure manufacturers)
- Pierson v. Sharp Mem. Hosp., 216 Cal.App.3d 340 (Ct. App. 1989) (distinguishes transactions where services predominate from those where sale is primary)
- Endicott v. Nissan Motor Corp., 73 Cal.App.3d 917 (Ct. App. 1977) (independent contractor installer held a provider of services, not a seller)