Filed 2/25/20 Morrison v. Office Master, Inc. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

—-

KRYSTA MORRISON,

Plaintiff and Appellant,

v.

OFFICE MASTER, INC. et al.,

Defendants and Respondents.

C086491

(Super. Ct. No. 162246)

SUMMARY OF THE APPEAL

Plaintiff and appellant Krysta Morrison sat down on an office chair at work and the chair collapsed, injuring her when she fell. Thereafter, she filed a form complaint against defendants Office Master, Inc. (Office Master) and King Hong Industrial Co., Ltd. (King Hong), as the chair’s manufacturer, distributor, and/or seller, alleging strict liability, negligence and breach of warranty. As it turned out, the chair that collapsed as plaintiff sat in it was later thrown away by her employer, but also as it turned out another chair in the office had collapsed under another employee. Because the chairs appeared to be the same, plaintiff claimed that defendants, who manufactured the second chair, must also have manufactured the chair that collapsed under her.

Defendants brought a motion for summary judgment arguing that plaintiff could not produce evidence sufficient to prove that defendants manufactured, distributed, or sold the chair that caused her injuries and thus could not raise a triable issue of material fact. The trial court granted defendants’ motion and entered judgment accordingly. Plaintiff appeals. We affirm the judgment.

FACTS AND LEGAL PROCEEDINGS

In May 2012, Morrison was employed by a company known at the time of her injuries as Aegis Medical Corporation or Aegis Medical Systems (Aegis). While at work, Morrison sat down on her desk chair and the seat part of the chair broke away from the chair’s pedestal, causing Morrison to sit straight down onto the pedestal’s metal post and then fall and hit its base. As a result, Morrison suffered injuries.

Approximately two weeks later, a chair used by Aegis’s receptionist, which looked similar to the one used by Morrison, broke in a similar fashion. Aegis kept one of the two broken chairs and disposed of the remaining chairs in its possession that appeared similar, including the other broken chair.

Morrison filed an action against Office Master in May 2014 and later amended her complaint to include King Hong as an additional defendant. The complaint asserts a products liability cause of action based on strict liability, negligence, and breach of implied warranty.

After discovery, both Office Master and King Hong brought motions for summary judgment generally arguing that plaintiff could not prove that the chair that collapsed under her was one manufactured or sold by defendants.

Specifically, in support of its motion, Office Master filed a separate statement of undisputed facts. According to Office Master the following facts were undisputed:

The chair Aegis retained has an Office Master label on its seat. King Hong manufactures office chair components, then sells chair kits and individual chair component parts to companies like Office Master. According to a declaration of Deputy Manager of Sales Joy Chen, submitted by King Hong in support of its motion for summary judgment, the seat mechanism on the pedestal of the retained chair “appears to be based on a design that was manufactured and sold by King Hong and then discontinued in the 1990s.”

Defendants asserted that it is unknown if the broken chair Aegis retained is the one that broke under Morrison or the one that broke under the other Aegis employee. Judson Lea, the person at Aegis who knows the most about the chairs used at the Aegis offices, stated in his deposition that the retained chair is more likely to have been the chair that broke under the other employee. While Morrison testified that she once saw a label on the bottom of her office chair, she does not know what the label said and she argues that she bases her belief that her chair had been manufactured by Office Master on the fact that the retained chair looks like her chair, broke in a similar fashion to her chair, and has an Office Master label on it.

Though neither Morrison nor Lea could describe Morrison’s broken chair with precision based on their memories of that specific chair, both Morrison and Lea testified at their depositions that the two chairs were among a small number of chairs that looked exactly the same. Morrison’s assessment of the similarity of her chair and the other one that broke was based, in part, on the fact that she had once sat in the other chair. Both chairs had roller bases, pink fabric, and black parts. The two chairs that broke and the others that looked like them were at the Aegis facility before either Morrison or Lea began working for Aegis.

No paperwork has been identified regarding when, how, and through whom the chairs were purchased, and Lea could not say how, when, or where Aegis acquired the chairs. It is unknown if the chairs were acquired as part of a group purchase, if Aegis bought the chairs, or if the chairs came with the office facility.

Both King Hong and Office Master submitted employee declarations in support of their motions for summary judgment. In her declaration for King Hong, Chen stated that King Hong sells office chairs and components to many distributors, though it only provides unassembled kits and individual components to Office Master. She stated that other manufacturers also sell office chairs and components that look like those manufactured by King Hong.

Wilson Chow, President of Office Master, declared that Office Master does not manufacture the basic components for the chairs it assembles and, instead, it gets kits or components from multiple manufacturers. He said that numerous office chair vendors purchase kits that are identical to the ones Office Master buys. He stated that often parts from different kits are interchangeable to a degree that a part from one kit could be attached to a part from a similar but not identical kit, and it would be easy to repair a chair made from one kit with a part from a similar kit, regardless of whether the distributors and vendors of the chairs were the same. Looking at photographs of the chair Aegis retained, he concluded that while the seat had an Office Master label, he could not tell if other components of that chair came from Office Master. He indicated he would not be able to ascertain the origins of the remainder of the chair without looking at a “born on” tag which would have provided information about the chair’s origin. He stated that the colors of the retained chair were industry standard, and he said that “the chair’s overall appearance was consistent with several such kits of chair components, such that the other components of even that specific chair may or may not have come from Office Master.” Finally, he stated, “multiple manufacturers across the chair industry and over the course of many years have produced chairs which look similar to and even identical to the [retained] chair. . . . The identity of the assembler or distributor of any particular chair of this type cannot be determined based on a visual assessment of the style of the chair, as this is a function of the underlying manufacturer’s kit. Nor can the identity of the manufacturer be determined by the fabric selection or the color of the structural components of the chair, as both the fabrics and plastics have been industry standard for decades.”

Rather than present evidence to rebut the similarities of types of components, component parts, kits, and material colors used on office chairs across the industry, Morrison objected to statements made by Chen and Chow variously, but approximately in the following manner: “[o]bjection irrelevant; there is no evidence that the chair in the injury was from any other manufacturer or seller; [t]he chair that caused the injury was exactly like the chair retained and photographed and broke in the same manner.” There are some minor variations in the exact text used in the instances in which Morrison made her objection, but the substance is the same. The trial court overruled all of plaintiff’s objections to the moving parties’ statements of undisputed facts.

The trial court granted both defendants’ motions for summary judgment and entered judgment accordingly.

DISCUSSION

I

Standard of Review

A court must grant a motion for summary judgment when “all the papers submitted 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).)

Summary judgment review occurs in three stages: “ ‘First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claims and justify a judgment in movant’s favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]’ ” (Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 644.) Thus, once the elements of a cause of action have been identified based on the pleadings, a defendant moving for summary judgment bears the initial burden to show a plaintiff’s action has no merit. (See Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) A defendant can meet its obligations to show a cause of action has no merit by showing that “one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) A defendant can show that a plaintiff cannot establish an element of a cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 (Aguilar).) A “motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

Once a defendant meets its burden, the burden shifts to the plaintiff to present evidence establishing a triable issue exists on one or more material facts. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 169; Code Civ. Proc., § 437c, subd. (p)(2).) “In deciding whether a plaintiff has met her burden of proof, we consider both direct and circumstantial evidence, and all reasonable inferences to be drawn from both kinds of evidence, giving full consideration to the negative and affirmative inferences to be drawn from all of the evidence, including that which has been produced by the defendant.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483.) “An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ [Citation.] Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions’ [citation], or mere possibilities [citation]. ‘Thus, while the court in determining a motion for summary judgment does not “try” the case, the court is bound to consider the competency of the evidence presented.’ [Citation.]” (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196–197.) Responsive evidence that “gives rise to no more than mere speculation” is not sufficient to establish a triable issue of material fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 (Sangster).)

We review a trial court’s ruling on a summary judgment motion de novo. (Aguilar, supra, 25 Cal. 4th at p. 860.) In so doing, “[w]e are not bound by the trial court’s stated reasons or rationale. Instead, we review the summary judgment without deference to the trial court’s determination of questions of law.” (Sangster, supra, 68 Cal.App.4th at p. 163.)

II

Summary Judgment was Properly Granted Because Plaintiff has Failed to Present Evidence Establishing a Triable Issue Exists as to Whether Defendants Sold, Manufactured or Distributed the Chair that Failed.

In their motions for summary judgment, defendants met their burden to demonstrate that Morrison will not be able to prove they are liable for her injuries because she failed to present evidence on the motion sufficient to show that a triable issue exists as to whether either defendant manufactured, sold or distributed the subject chair.

Morrison has alleged products liability causes of action based on theories of negligence, strict liability, and breach of warranty. “ ‘Regardless of the theory which liability is predicated upon, whether negligence, breach of warranty, strict liability in tort, or other grounds, it is obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product.’ ” (Garcia v. Joseph Vince Co. (1978) 84 Cal.App.3d 868, 874 [quoting 51 A.L.R.3d 1344, 1349] (Garcia).) Therefore, to prevail on any of her causes of action against either defendant, Morrison would have to prove by a preponderance of the evidence that the defendant was in some way responsible for the chair that broke when she sustained her injuries. (Ibid.; see also Evid. Code, § 115.)

Though the evidence suggests Morrison’s chair and the exemplar chair appear the same to an everyday observer, defendants supplied ample evidence to demonstrate that two office chairs that look the same might not, in fact, be made by or consist of parts made by the same manufacturer. Absent information the labeling and manufacturer markings on both chairs, that two chairs look the same is not enough to establish they were put into the stream of commerce by the same manufacturer or distributer. Based on the evidence provided, it is entirely plausible that Morrison’s chair and the retained chair were made in whole or in part using components supplied by different component and end-product manufacturers.

Garcia, supra, 84 Cal.App.3d 868 is instructive. In Garcia the plaintiff’s face was injured when a sabre blade pierced his mask during a fencing match. (Id. at p. 872.) The two teams competing in the fencing match used blades manufactured by two companies, and, after the injury occurred, the blade that caused the injury was mixed back in with the rest of the blades used in the match. (Ibid.) As a result, the “identity of the particular blade in question was thereby lost.” (Ibid.) The court concluded that “where a plaintiff’s evidence establishes that one, but not both, of two defendants produced a defective product, but the evidence does not disclose which one,” there is not “sufficient evidence to permit a jury to determine liability of either defendant.” (Id. at pp. 872-873.) The court reasoned that, in such a scenario, “[t]he jury on the basis of such evidence would be purely speculating as to who should be liable. There was not contradictory or conflicting evidence to be resolved that either defendant manufactured or produced the blade. The evidence was evenly divided as to who possibly could have been the supplier of the blade.” (Id. at p. 874.) In short, because the plaintiff “did not sufficiently identify the sabre as being a product” of one particular manufacturer the plaintiff could not “clear the first hurdle in establishing [the named manufacturer defendant’s] liability for any defect in the subject sabre.” (Ibid.) Here, Morrison was not able to produce evidence raising a triable issue of material fact as to whether either defendant was the manufacturer, seller or distributor of the chair in question.

III

Plaintiff’s Argument that Defendants Should Have the Burden of Showing They Did Not Manufacture the Chair is Forfeited.

Having failed to satisfy her burden to present evidence raising a triable issue of material fact as to whether King Hong or Office Master was involved in the manufacture, distribution, or sale of the chair that caused her injuries, Morrison now argues that the burden should be on the defendants to prove they were not involved in placing the chair into the stream of commerce. This argument is raised for the first time on appeal. Not having been raised in the trial court, the argument is forfeited. (Bank of America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1398-1399.)

DISPOSITION

The judgment is affirmed.

HULL, Acting P. J.

We concur:

MURRAY, J.

HOCH, J.