2010-00085696-CU-PA
Edward Quijada vs. Ford Motor Company
Nature of Proceeding:
Filed By:
Hearing on Demurrer
Pitha, Martin L.

Defendant Tap Worldwide, LLC’s (“TAP”) demurrer to Plaintiffs Edward and Amy
Quijada’s complaint is sustained with leave to amend as set forth below.

Plaintiffs filed their complaint for strict products liability, negligence and loss of
consortium arising out of a rollover accident that Plaintiff Edward Quijada was involved
in with his Ford F-150. After Maita Investments filed a cross-complaint against TAP for
indemnity, Plaintiffs filed a doe amendment adding TAP as Doe Defendant 2.
TAP’s and Plaintiffs’ requests for judicial notice are granted

First and Second Causes of Action (Strict Products Liability and Negligence[Products])
The demurrer is moot as Plaintiffs filed a request for dismissal of these two causes of
action as to TAP.

Third and Fourth Causes of Action (Negligence and Loss of Consortium)
TAP’s demurrer to the Third and Fourth Causes of Action is sustained with leave to
amend.

TAP demurs to the entire complaint on the basis that TAP did not exist at the time of
the alleged accident. TAP’s request for judicial notice shows that it was not formed
until October 12, 2009. (TAP’s RJN Exhs. A-C.) The subject incident in the action
took place almost ten months later in February 2009. Plaintiffs have not alleged that TAP succeeded to the liabilities of any of the entities that equipped the F-150 or
otherwise is liable for the acts of such entities. Plaintiffs concede that TAP was not
formed as an LLC until after the subject incident but argues that this fact does not
“preclude either 1) it existed in another form prior to that date or 2) it assumed liabilities
from the entities that were in existence at the time of the original transaction or some
intermediate entity.” (Oppo. 2:22-27.) The Court has no quarrel with Plaintiffs’
proposition but they have not alleged such facts.

Plaintiffs essentially concede as much as they request leave to amend “to allege that
TAP succeeded to the liabilities of the companies that equipped the subject vehicle
with the lift kit and wheels/tires and/or to any intermediate entity that assumed those
liabilities.” (Oppo. 8:5-8.) The Court declines to consider any arguments by Plaintiffs
regarding their requests for proof from TAP regarding whether it succeeded to the
liabilities of other entities, or TAP’s reply purporting to present evidence that it did not.
Such matters are outside the pleadings and not appropriately addressed on demurrer.
On this basis alone, the demurrer to the third and fourth causes of action are sustained
with leave to amend.

TAP next argues that the third cause of action, and the derivative fourth causes of
action for loss of consortium are deficient because even if it were in existence at the
time of the incident, Plaintiffs allege no facts related to TAP nor any facts that TAP
negligently installed the Lift Kit, wheels or tires on the subject F-150. Instead, it argues
that Plaintiffs allege that Ford and Maita “installed, caused to be installed, or approved
of the installation of a lift kit and a wheel and tire package on the subject vehicle which
raised the center of gravity of the subject vehicle thereby decreasing the stability and
resistance to rollover of a vehicle that was already defective in regard to roll
stability.” (Comp. ¶ 44.)

The demurrer on this basis is overruled. The allegations in paragraph 44 quoted
above were not only directed at Ford and Maita as TAP suggests, but also at
“DOES.” (Comp. ¶ 44.) TAP was substituted in as a Doe Defendant and thus contrary
to TAP’s argument, the third cause of action contains facts alleging that TAP acted
negligently, specifically, by installing “a lift kit and a wheel and tire package on the
subject vehicle which raised the center of gravity of the subject vehicle thereby
decreasing the stability and resistance to rollover of a vehicle that was already
defective in regard to roll stability.” Thus the demurrer to the third cause of action and
the derivative fourth cause of action on the basis that Plaintiffs failed to allege any
facts related to TAP is overruled, though as seen above the demurrer was sustained
on the basis that did not exist at the time of the subject incident and no facts have
been alleged to indicate any basis of successor liability.

Judicial Estoppel

The doctrine of judicial estoppel precludes a party from taking inconsistent positions in
separate judicial proceedings. It is invoked to prevent a party from changing its
position over the course of judicial proceedings when such positional changes have an
adverse impact on the judicial process. The policies underlying preclusion of
inconsistent positions are general considerations of the orderly administration of justice
and regard for the dignity of judicial proceedings. Judicial estoppel is intended to
protect against a litigant playing “fast and loose” with the courts. (The Swahn Group,
Inc. v. Segal (2010) 183 Cal. App. 4th 831, 841.)Here, the Court rejects TAP’s argument that Plaintiffs should be judicially estopped
from asserting allegations that TAP’s products were defective or negligently installed
any products in the event the demurrer is sustained. TAP argues that such allegations
contradict Plaintiffs’ arguments made in opposition to Maita’s motion for leave to file a
cross-complaint in which they argued that they “never alleged that the lift kit itself was
defective or that the manner in which the lift kit was installed was negligent, and [they
were] not aware of any facts to the contrary’ a position which TAP argues the Court
accepted as true. The Court rejects this argument. Indeed, the passage referred to by
TAP, in which Plaintiffs went on to state that their “strict products liability and
negligence claims against Maita arise from Maita’s decision to equip the F-150 with the
lift kit and oversized tires, which increased its instability and propensity to
rollover.” (TAP’s RJN Exh.E [Plf’s Oppo. to Maita’s Motion for Leave 4:5-12.) Judicial
estoppel requires among other things, that “the two positions are totally
inconsistent.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)
The allegations in the Complaint that it was negligent to install a lift kit and oversized
tires that decreased the stability of the F-150 is not “totally inconsistent” with Plaintiffs’
statements in their opposition to the Motion for Leave that they were not alleging that
lift kit itself was defective or that the manner in which it was installed was negligent.
Alleging that it was negligent to decide to install a specific product on a vehicle does
not mean that Plaintiffs alleged that the product itself was defective or installed in a
negligent manner. The Court therefore rejects TAP’s judicial estoppel argument.

Plaintiffs may file and serve an amended complaint no later than March 17, 2014.
Defendant shall file and serve its response within 10 days thereafter, 15 days if the
amended complaint is served by mail. (Although not required by any statute or rule of
court, Plaintiffs are requested to attach a copy of the instant minute order to the
amended complaint to facilitate the filing of the pleading.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.