Case Number: KC063315 Hearing Date: June 16, 2014 Dept: O

Arnold, et al. v. Sealy Mattress Manufacturing Company, Inc., et al. (KC063315)

Defendant Jakel Motors, Inc.’s MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Respondent:

TENTATIVE RULING

Defendant Jakel Motors, Inc.’s motion for summary adjudication is DENIED as to Issues 1-2 and GRANTED as to Issue 3. As Defendant has not disposed of the entire action, motion for summary judgment is DENIED.

Plaintiffs and Defendant’s evidentiary objections are overruled procedurally for failure to comply with CRC 3.1354(b)(3), as well as substantively on the merits.

A defendant moving for summary judgment/adjudication has met his burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

Defendant moves for summary judgment/adjudication of the following issues:

ISSUE 1: STRICT PRODUCTS LIABILITY:
A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. A plaintiff satisfies his burden of proof in both a “manufacturing defect” and “design defect” context, when he proves the existence of a “defect” and that such defect was a proximate cause of his injuries. The court does not purport to hold that the term “defect” must remain undefined in all contexts and does not preclude a trial court from framing a definition of defect, appropriate to the circumstances of a particular case, to guide the jury as to the standard to be applied in determining whether a product is defective or not. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 427.) A design defect is an inherent flaw in the design of the product. (Barker, supra 20 Cal.3d. at 429.) A product is defective in design either (1) if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if the benefits of the challenged design do not outweigh the risk of danger inherent in such design. (Barker, supra 20 Cal.3d. at 418.) Under the “consumer expectation” test, a product may be found defective in design if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Under the “risk-benefit” test, a product may be found defective if plaintiff establishes that the risk of danger inherent in the design outweighs the benefits of such design. (Barker, supra 20 Cal.3d. at 418.)

“The consumer expectations test is reserved for cases in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design…. appropriate use of the consumer expectations test is not necessarily foreclosed simply because the product at issue is only in specialized use, so that the general public may not be familiar with its safety characteristics… if the expectations of the product’s limited group of ordinary consumers are beyond the lay experience common to all jurors, expert testimony on the limited subject of what the product’s actual consumers do expect may be proper… In particular circumstances, a product’s design may perform so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers. In such cases, a lay jury is competent to make that determination.” (Soule v. General Motors (1994) 8 Cal.4th 548, 567 – declining to apply the consumer expectation test the crashworthiness of an automobile because Plaintiff’s theory was one of technical and mechanical detail.)

A product liability case must be based on substantial evidence establishing both the defect and causation (a substantial probability that the design defect, and not something else, caused the plaintiff’s injury) and where the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation. (Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, 1370-1371.)

Defendant requests that the burden be shifted based on Plaintiffs’ factually devoid discovery responses pursuant to Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 592-593 and CCP 437c(o)(2). However, Plaintiff’s discovery responses are not completely factually devoid as in Union Bank v. Superior Court, where the discovery responses contained no facts. Here, Plaintiffs’ theory of defect is based on Los Angeles County Sherriff’s Department Fire investigator, Enrique Velazquez’s exclusion of all other possible sources of fire, and his opinion that the fire started at the foot of the bed. Further, Plaintiffs identified documents and persons in support of the claims. (Motion, Exs. O and Q.) Thus, the burden does not shift based on Plaintiffs’ discovery responses alone.

Defendant also contends Plaintiffs cannot establish that the motor was manufactured, distributed, or sold by Jakel. The vibrating motor located near the head of the bed has been confirmed to be a Jakel motor. (Defense Separate Statement (DSS) 29.) However, the vibrating motor near the foot of the bed, which Plaintiffs contend is the cause of the fire at issue in this lawsuit, was damaged to the point that the identity of the manufacturer cannot presently be determined. (DSS 30.) Further, Defendant presents evidence that there were no design or manufacturing defects in the motor, and the motor did not cause the fire. (DSS 43-52; Finneran Decl., Pars. 9-12; Natale Decl., Pars. 8-15; DSS 43-51.)

Based on this evidence, the court finds Defendant has met its initial burden.

In opposition, Plaintiffs present evidence that Jakel’s employee, Thomas Frisse, admits that “there’s a good chance it’s a Jakel motor” and “I would not be here today if I didn’t have a strong feeling that this could be a Jakel motor.” (Opposition, Ex. 6, Frisse Depo., 104:14-15 and 106:15-16.) Further, the subject bed was manufactured in February 2006. (Ortho Receipt, Ex. 9; DSS 1.) From 12/1/05 – 6/26/06, FM Industries (other potential supplier of the motor), did not ship any motors because of a problem with its plant in China. (Berlinski Decl., Ex. 10 at p. 3, Par. 5.) Moreover, FM Industries CEO positively identified the surviving motor as a Jakel motor, and stated that, through their course of dealings with Leggett & Platt, they did not place motors by two different manufactures on the same bed. (Ex. 10, Berlinski Decl., Par. 6.) The court finds Plaintiffs have presented sufficient evidence to create a triable issue as to whether Defendant manufactured the subject motor.

Defendant argues in Reply that Plaintiff has not proven that in February of 2006, Leggett & Platt had absolutely no FM Industries motors in stock or available for use on the bed. Defendant also contends that its evidence, establishing that there were periods of time when motors from both manufacturers were used on the same bed (DSS 28) outweighs Plaintiff’s evidence that Leggett & Platt did not place motors by two different manufactures on the same time (Ex. 10, Berlinski Decl., Par. 6) However, the function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, not to decide the merits of the issues themselves. (Furla v. Jon Douglas Co. (1998) 65 Cal. App. 4th 1069, 1076-77.) As presented by Plaintiffs, there is sufficient evidence to create a triable issue as to whether Defendant manufactured the subject motor.

Plaintiffs also present the testimony of Los Angeles County Sherriff’s Department Fire Investigator, Enrique Velazquez, conclusion that the fire started underneath the bed at the foot end. (Velazquez Deposition, Ex. 1, at 63:24-64:7.) The Detective excluded all possible sources except for the melted motor and a power strip. (Id. at 64:19-25.) [Although Plaintiffs contend that the motor exhibited a melting pattern consistent with the fire starting within the motor, citing Velazquez deposition at 112:23-113:2, these pages were not included in Exhibit 1.] Plaintiffs also present the opinion of Douglas Bennett, Electrical Engineer, who opines that the cause of the fire were the result of defects in the motor which overheated at the foot of the bed. (Bennett Decl., Par. 5.) The court finds that Plaintiffs have presented sufficient evidence, including expert testimony, to create a triable issue as to whether the motor was defective.

Because Plaintiffs have presented sufficient expert testimony in opposition, they are not relying solely on the consumer expectations test, and therefore, this issue is not applicable to the present motion. Summary adjudication is DENIED.

ISSUE 2: NEGLIGENCE and CAUSATION:
Defendants contend that there is no evidence that the defect caused Plaintiff’s injuries, citing the Finneran and Natale Declarations and DSS 31-42 and 54-61. In opposition, Plaintiffs present evidence that Los Angeles County Sherriff’s Department Fire Investigator, Enrique Velazquez, concluded that the fire started underneath the bed at the foot end. (Velazquez Deposition, Ex. 1, at 63:24-64:7.) The Detective excluded all possible sources except for the melted motor and a power strip. (Id. at 64:19-25.) Plaintiffs also present the opinion of Douglas Bennett, Electrical Engineer, who opines that the cause of the fire were the result of defects in the motor which overheated at the foot of the bed. (Bennett Decl., Par. 5.) The court finds that Plaintiffs have presented sufficient evidence, including expert testimony, to create a triable issue as to whether the motor was defective and was the cause of Plaintiff’s injuries. Summary adjudication is DENIED.

ISSUE 3: BREACH OF WARRANTY:
Defendant contends there is no vertical privity because Plaintiff did not purchase the motor from Defendant. Defendant also presents evidence that Plaintiffs’ breach of express warranty claim fails because there is no express warranty after the warranty period expired. Here, the warranty expired 12 months after delivery. (DSS 63.) The motor would have been purchased from Jakel some time before the bed was manufactured in February 2006. (DSS 64.) Thus, at the latest, the warranty expired in February 2007. (DSS 65.) The fire did not occur until January 2011. (DSS 66.)

As to breach of implied warranty, CC 1791.1(c) provides: “The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor MORE THAN ONE YEAR FOLLOWING THE SALE OF NEW CONSUMER GOODS TO A RETAIL BUYER. Where no duration for an express warranty is stated with respect to consumer goods, or parts thereof, the duration of the implied warranty shall be the maximum period prescribed above.” Defendant presents evidence that the warranty expired at the latest on 3/11/07, one year after the bed was sold to Plaintiff on 3/11/06. (DSS 67-68; CC 1791.1(c).)

Defendant has met its burden.

In opposition, Plaintiffs contend there is vertical privity, but failed to present any evidence in opposition to the expiration of the warranties.

The court notes that Plaintiffs have requested a continuance per CCP 437c(h), however, counsel’s declaration fails to establish that further discovery may reveal facts essential to oppose the issue of the expiration of the warranties. Request for continuance is denied.

Accordingly, summary adjudication of Issue 3 is GRANTED.