Case Number: BC689458 Hearing Date: October 17, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Allison Nichols filed this suit against defendant Sephora USA, Inc. (“Defendant”) and Dr. Dennis Gross Skincare, LLC (“Dr. Gross Skincare”) for rashes she sustained after purchasing a product on September 10, 2017. Plaintiff went to Defendant’s store and asked for assistance with skincare products for her sensitive skin. Plaintiff alleges she was told by a Sephora employee that Dr. Gross Skincare’s products Alpha Beta Peel and a Ferulic Acid and Retinol product were suitable for her sensitive skin. Subsequently, Plaintiff suffered burns, rashes, and blisters. When she visited the emergency room, the doctor diagnosed her with shingles. Plaintiff asserts causes of action for products liability and general negligence.

After Defendant filed this motion for summary judgment, Plaintiff filed a request for dismissal on August 26, 2019, but the Court did not enter the dismissal because Plaintiff owes court fees. Plaintiff did not oppose this motion.

II. FACTUAL BACKGROUND

Plaintiff purchased Dr. Dennis Gross’s Skincare products “Alpha Beta Peel” and “Ferulic & Retinol” (collectively, “Skincare Products”) from one of Defendant’s stores on September 10, 2017. (Defendant’s Undisputed Material Fact (“UMF”) No. 1.) Plaintiff alleges she told Defendant’s employee that she had sensitive skin and asked what products were safe to use. Plaintiff claims she was told that the Skincare Products were suitable for her sensitive skin. (UMF No. 2.) After Plaintiff tested the Skincare Products and observed no reaction, she then used the Skincare Products twice a day (once in the morning, and once a night) for three and a half days on her face, neck, and collar regions, and wiped the residue on her shoulders and arms. (UMF Nos. 5-7.) Plaintiff was aware she was supposed to wear sunscreen and avoid sunlight while using the Skincare Products (UMF No. 8.) Plaintiff spent hours a day in the sun, either in her car or walking from her car to and from delivery locations (UMF No.9.) Plaintiff then suffered burns where she applied the Skincare Products, but not on her face. (UMF Nos. 10-11).

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her 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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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 or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on 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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

Defendant argues the warning on the product was adequate and bars Plaintiff’s claims. “An adequate warning is a sufficient defense to a strict liability action,” and it “would also negate any negligence or willful misconduct.” (Temple v. Velcro USA, Inc. (1983) 148 Cal.App.3d 1090, 1094.) Interpretation of a warning in a written document is a question of law for the trial court to determine. (Id. at p. 1095.) While an adequate warning is not “invariably ‘a sufficient defense to a strict liability action’” (Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1557), it may be where there is evidence of “conscious, deliberate disregard of a safety notice or measure.” (Id. at p. 1560.)

Here, the warning stated “Sunburn Alert,” that the use of the product could increase the possibility of sunburn, and that the user should use sunscreen. Plaintiff testified she read the box about being susceptible to sunburn when using the product. Defendant argues Plaintiff was exposed to sun outside and when driving with the car window down. Plaintiff testified that she was in and out of the car during the day delivering packages and drove with the window down at times. Plaintiff’s daughter testifed Plaintiff would drive with the windows down if there was a breeze. Defendant points out the blisters occurred only on Plaintiff’s left side of the neck and shoulder and back of the neck. Plaintiff testified the blisters occurred where the sun was shining in the window of her car.

Defendant has established a prima facie case that Plaintiff disregarded the safety notice about the possibility of sunburn on the areas of her body exposed to the sun when she was driving and out of the car. Plaintiff did not oppose the motion or dispute any of Defendant’s facts.

V. CONCLUSION

In light of the foregoing, Defendant’s unopposed motion for summary judgment is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. The Court will be dark on October 17, 2019. A party requesting a hearing should contact Department 4B for an alternate hearing date.