Filed 4/28/16; pub. order 5/17/16 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

SUSAN HETZEL,

Plaintiff and Appellant,

v.

HENNESSY INDUSTRIES, INC.,

Defendant and Respondent.

 A144218

 (Alameda County

 Super. Ct. No. RG13663277)

Susan Hetzel, as successor in interest to James Hetzel,1appeals the trial court’s 

award of summary judgment in favor of Hennessy Industries, Inc. (Hennessy). Plaintiff

allegedly developed breathing difficulties and lung damage as a result of his exposure to 

asbestos while working as a mechanic. He brought claims for negligence and strict 

liability against several defendants, including Hennessy, alleging its brake shoe arcing 

machines released asbestos dust when he used them to grind brake linings. The trial 

court granted Hennessy’s motion for summary judgment, finding Hennessy could not be 

held liable because its products did not contain asbestos, and there was no evidence 

Hennessy’s products required asbestos-containing brake pads to function. The trial 

court’s order is at odds with the Second Appellate District’s recent opinion in Sherman v. 

Hennessy Industries, Inc. (2015) 237 Cal.App.4th 1133 (Sherman), which was issued 

after plaintiff filed his notice of appeal. We find Sherman is directly on point and 

persuasive, and we therefore reverse.

 

1 Mr. Hetzel died in 2015, while the case was pending on appeal. For the sake of 

clarity we continue to use the term “plaintiff” here to refer to Mr. Hetzel.
2

I. BACKGROUND

Plaintiff’s complaint alleges Hennessy’s predecessor manufactured and supplied 

brake shoe arcing machines, also known as grinders, used to grind asbestos brakes. 

Plaintiff allegedly used defendant’s grinder while working as a mechanic from 

approximately 1958 to 1962. Plaintiff alleges Hennessy knew or should have known its 

grinders would be used in conjunction with asbestos-containing brake lining, and all 

brake shoe linings used with automobiles during the relevant period contained asbestos. 

He asserts Hennessy had a duty to warn of the risks posed by its grinders. 

It is undisputed Hennessy’s grinders did not contain asbestos or asbestoscontaining parts. Its grinders are designed to reshape the friction material of a brake 

shoe, regardless of the shoe’s composition, by mechanical abrasion. When the grinder 

comes into contact with an asbestos-containing brake shoe, it releases asbestos into the 

air. Plaintiff presented evidence that virtually all brake linings used during the relevant 

time period contained asbestos. Plaintiff’s industrial safety expert asserts that as of 1986,

asbestos brake linings accounted for 90 to 95 percent of the original equipment market 

and virtually 100 percent of the aftermarket. Defendant presented evidence nonasbestos 

brake shoe linings were commercially available during the relevant period. 

The trial court found the evidence warranted a grant of summary judgment in 

favor of Hennessy. The court reasoned brake shoes without asbestos existed at the time 

of plaintiff’s exposure. The court rejected plaintiff’s contention that Hennessy’s grinders 

were specifically designed to be used with asbestos brake linings because all standard 

passenger cars and light trucks in 1960 had asbestos-containing drum brake linings. The 

court reasoned there was no evidence Hennessy’s products required asbestos-containing 

brake pads to function, and Hennessy had provided affirmative evidence its grinders 

worked on all brake linings, regardless of whether they contained asbestos. On this basis, 

the court found Hennessy owed no duty to warn of risks created by third parties and 

concluded all of plaintiff’s claims against Hennessy failed. 
3

II. DISCUSSION

We review the trial court’s decision to grant Hennessy’s motion for summary 

judgment de novo. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Summary 

judgment must be granted if all the papers and affidavits submitted, together with “all 

inferences reasonably deducible from the evidence” and uncontradicted by other 

inferences or evidence, show that “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).) Where, as here, the defendant is the moving party, he or she may meet the 

burden of showing a cause of action has no merit by proving one or more elements of the 

cause of action cannot be established. (See id., § 437c, subd. (o).) Once the defendant 

has met that burden, the burden shifts to the plaintiff to show the existence of a triable 

issue of material fact as to that cause of action. (Union Bank v. Superior Court (1995) 

31 Cal.App.4th 573, 583.) On appeal, “[w]e may consider only those facts which were 

before the trial court, and disregard any new factual allegations made for the first time on 

appeal.” (Sangster v. Paetkau, at p. 163.)

The sole issue on appeal is whether plaintiff raised a triable issue concerning 

Hennessy’s duty to warn. We conclude he did. Hennessey’s products did not contain 

asbestos. But looking at the evidence in the light most favorable to plaintiff, virtually all 

of the brake linings with which Hennessy’s products were used during the relevant period 

were asbestos-containing. It is also undisputed that grinding such brakes with 

Hennessy’s products released asbestos dust in the air. Thus, a jury could reasonably 

conclude the inevitable use of Hennessy’s products would expose a worker like plaintiff 

to asbestos dust absent safety protection or adequate warning. 

Our analysis begins with our Supreme Court’s decision in O’Neil v. Crane Co.

(2012) 53 Cal.4th 335 (O’Neil), which established the standard for evaluating 

manufacturer liability for injuries from an “adjacent product.” 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 
4

combined use of the products.” (Id. at p. 342.) In that case, the defendants 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. (Id. at pp. 345–346.) 

The manufacturers moved for nonsuit on all causes of action. (Id. at p. 346.)

The court concluded the manufacturers 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.) The record did not 

support O’Neil’s claim 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 nonasbestos gaskets and packing. The products did 

not “require[] the use of asbestos components.” (Ibid.) While manufacturers have a duty 

to warn consumers about the hazards inherent in their products, this duty does not extend 

to “hazards arising exclusively from other manufacturers’ products.” (Id. at p. 351.) 

The O’Neil court expressly distinguished Tellez-Cordova v. CampbellHausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577 (Tellez-Cordova). In that earlier 

case, Tellez-Cordova developed lung disease from toxic dust released while using 

grinders and saws with abrasive discs. (Tellez-Cordova, 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 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 their tools could be used 

with a “ ‘universe of grindable products’ ” on all types of materials. (Id. at p. 582.) In 

reversing the trial court’s ruling, the appellate court noted the complaint alleged 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.) 
5

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.) The “sole purpose” of the tools 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 power tools in Tellez-Cordova caused the release of harmful dust.

(O’Neil, at p. 361.) “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. Conversely, where the hazard arises entirely from another 

product, and the defendant’s product does not create or contribute to that hazard, liability 

is not appropriate. (Id. at pp. 361–362.) 

More recently this district issued two opinions applying O’Neil and TellezCordova. (Shields v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 782 (Shields); 

Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103 (Bettencourt).) 

Both cases involved claims against Hennessy that were dismissed by the trial court on 

motions for judgment on the pleadings. In Shields, the plaintiff was a mechanic who was 

diagnosed with various diseases from asbestos exposure. (Id. at p. 784.) He alleged 

Hennessy was liable in negligence and strict liability. (Ibid.) The complaint alleged 

Hennessy grinders were designed for use on car and truck brakes containing asbestos.

(Id. at p. 786.) Hennessy “ ‘specifically designed [its] machines for grinding asbestoscontaining brake linings [and they] had no other function than to grind asbestoscontaining brake linings.’ ” (Id. at p. 787.) This was their “ ‘only intended use.’ ” (Ibid.) 

We held that the plaintiffs’ causes of action were sufficient to survive a motion for 

judgment on the pleadings. (Shields, supra, 205 Cal.App.4th at p. 797.) The plaintiffs 

alleged 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 
6

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.” (Id. 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. 1106.) The complaint alleged that 

“[d]uring the periods relevant to this litigation, all brakeshoe linings used on automobiles, 

light trucks, and commercial trucks in the United States contained asbestos.” (Id. at 

p. 1108.) Hennessy’s grinders were specifically designed to grind brakes and had no 

other function. (Ibid.) It was also alleged 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.” (Id. at p. 1117.) The court found these 

allegations were “indistinguishable from those Tellez-Cordova held sufficient to survive 

demurrer.” (Ibid.) “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., quoting O’Neil, supra, 

53 Cal.4th at p. 361.) Hennessy bore some direct responsibility because its product 

substantially contributed to the harm. (Bettencourt, at p. 1117.) Therefore, the court 

concluded: “Like 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.’ ” (Id. at p. 1112, quoting 

Shields, supra, 205 Cal.App.4th at p. 798.)

The most recent case to address Hennessy’s liability for its grinders is Sherman, 

in which the Second Appellate District reversed an award of summary judgment in favor 
7

of Hennessy. The plaintiffs asserted claims for negligence, strict liability, and loss of 

consortium. (Sherman, supra, 237 Cal.App.4th at p. 1137.) The plaintiffs alleged

Hennessy sold grinders whose “ ‘sole function’ ” was to abrade asbestos brake linings 

and asbestos dust was released when the grinders were used. (Ibid.) In its motion for 

summary judgment, Hennessy argued it could not be held liable under O’Neil unless the 

machines’ sole intended purpose was to abrade asbestos brake linings, and the plaintiffs 

did not raise a triable issue of fact because the undisputed evidence showed that 

nonasbestos brakes were available during the relevant time period. (Sherman, at 

pp. 1137–1138.) 

The evidence presented in Sherman is strikingly similar to the evidence presented 

by Hennessy in this case. Hennessy relied on the declarations of Dennis Bridge, an 

expert on industrial safety, and Craig Mountz, a Hennessy engineer. (Sherman, supra, 

237 Cal.App.4th at p. 1144.) Bridge stated asbestos-free brake linings were available in 

the 1960’s and 1970’s for popular muscle cars and some passenger cars. (Ibid.) Mountz 

stated 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 

asbestos-free 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 plaintiff 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.)

The Second Appellate 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
8

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, italics added by Sherman.) The court concluded 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 in 1973 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.)

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 asbestoscontaining 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 the manufacturer’s tool was useable only with certain other products, it 

indirectly derived economic benefit from their sale. Accordingly, as 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, at 

p. 1149.) Finally, the court found there was a triable issue of fact as to whether the brake 
9

linings emitted asbestos fibers in the absence of grinding. Therefore, summary judgment 

was improperly granted. (Id. at p. 1152.) 

We agree with the Second Appellate District and conclude O’Neil does not 

require evidence of exclusive use, but rather requires a showing of “ ‘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.” (O’Neil, at p. 361, italics 

added.) Shields and Bettencourt echo this “sole 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 brakes is 

sufficient to satisfy O’Neil. (Shields, supra, 205 Cal.App.4th at pp. 797–798; 

Bettencourt, supra, 205 Cal.App.4th at p. 1117.) 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 90 to 95

percent of the time to grind brakes producing asbestos dust, did the “intended use of [the]

product inevitably create[] a hazardous situation”? (O’Neil, supra, 53 Cal.4th at p. 361.) 

Faced with nearly identical facts, the Second Appellate District answered “yes.” 

(Sherman, supra, 237 Cal.App.4th at p. 1149.) The record here reflects that although 

there were nonasbestos brakes available, they were only in limited use in the 1960’s and 

1970’s. For example, Hennessy’s engineering expert asserted nonasbestos brake shoes 

were typically used in certain muscle cars and high performance vehicles during the 

period, and they were sometimes used in more powerful GM/Chevrolet and Ford 

vehicles, though less frequently than standard type brake shoes. While Hennessy’s 
10

grinders could be used on nonasbestos brakes, 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. (Id. at p. 361.) Nothing about the pumps and valves caused the 

release of dust. 

The facts in the instant action 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. (Tellez-Cordova, supra, 129 Cal.App.4th 

at p. 584.) Unlike the pumps and valves in O’Neil, the grinders here contributed to the 

hazard by releasing the asbestos dust from the brake linings. This distinction was 

highlighted by the court in Sherman: “[Hennessy’s] machine’s role in the creation of the 

relevant hazardous condition was not merely foreseeable, but intended and contributed 

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.) Because the normal operation of Hennessy’s 

grinders on brake linings released asbestos dust, their “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.)

 Like the Sherman court, we also reject Hennessy’s argument that the TellezCordova exception only applies when a product can solely 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.” (Id. at p. 1149.) There is at least a triable issue that use of the machine “ ‘for the 

very activity that created a hazardous situation’ ” was not merely possible, but inevitable.
11

(Ibid.) As in Sherman, there is evidence 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.” (Id. at p. 1147.)

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. (Tellez-Cordova, supra, 

129 Cal.App.4th at p. 584.) The combined use of Hennessy’s machines with the asbestos 

brakes inevitably created a hazardous condition by releasing asbestos fibers into the air. 

Such is the case here. Looking at the evidence in the light most favorable to plaintiff, 

Hennessy was in a position to provide safeguards from this exposure, and thus Hennessy 

should share liability for injuries resulting from the hazardous condition created by the 

use of its grinders in the 1950’s and 1960’s.

III. DISPOSITION

The judgment is reversed.
12

_________________________

Margulies, J.

We concur:

_________________________

Humes, P.J.

_________________________

Dondero, J.
Filed 5/17/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

SUSAN HETZEL,

Plaintiff and Appellant,

v.

HENNESSY INDUSTRIES, INC.,

Defendant and Respondent.

 A144218

 (Alameda County

 Super. Ct. No. RG13663277)

ORDER CERTIFYING OPINION FOR 

PUBLICATION

 NO CHANGE IN JUDGMENT

THE COURT:

The opinion in the above-entitled matter filed on April 28, 2016, was not certified 

for publication in the Official Reports. After the court’s review of a request under 

California Rules of Court, rule 8.1120, and good cause established under rule 8.1105, it is 

hereby ordered that the opinion should be published in the Official Reports. 

Dated:

___________________________

Margulies, J.
2

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Jo-Lynne Q. Lee

Counsel: 

Brayton Purcell LLP, Alan R. Brayton, Richard M. Grant, and Gary L. Brayton for 

Plaintiff and Appellant.

Gordon & Rees LLP, Don Willenburg and Mitchell B. Malachowski for Defendant and 

Respondent.