Case Number: BC507648    Hearing Date: July 21, 2014    Dept: 91

Motion by Defendant, Razor USA LLC for Summary Judgment or alternative, for Summary Adjudication, filed on 4/9/14 is DENIED. Defendant has not established it is entitled to a judgment in its favor based on the material facts proffered. Cal Code Civ Procedure § 437c(p)(2).

Defendant’s primary argument, that Plaintiffs cannot prove their case without the scooter at issue lacks merit. Plaintiffs can prove their case either by direct or circumstantial evidence. Plaintiffs’ failure to retain the scooter is not fatal to Plaintiffs’ claims. Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 260 (Cal. 1964); Dimond v. Caterpillar Tractor Co., 65 Cal. App. 3d 173, 183 (Cal. App. 4th Dist. 1976). Defendant’s reliance on cases regarding spoliation of evidence and appropriate sanctions to be rendered in those circumstances is misplaced.

Where summary judgment is based on absence of evidence as Defendant argues here, Defendant must make an affirmative showing by way of direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. Hagen v. Hickenbottom, 41 Cal. App. 4th 168, 186 (Cal. App. 6th Dist. 1995). Defendant has not met that burden.

Fact 21, which asserts that it is impossible to perform a detailed engineering assessment as to what caused the handlebars to become exposed is disputed. Plaintiffs’ engineer examined 9 exemplars.

Facts 22, 23, 24 asserts there is no credible evidence of a defect since the scooter was discarded. These facts are disputed by Plaintiff’s expert who was able to render an opinion based on his examination of 9 exemplars and consideration of other evidence.

Defendant’s argument that the Consumer Expectation test does not apply in this case is not a basis for summary adjudication as it does not dispose of Plaintiffs’ cause of action. Cal Code Civ Procedure § 437c(f)(1). This is only one theory of liability in addition to the the risk/benefit test. Saller v. Crown Cork & Seal Co., Inc., 187 Cal. App. 4th 1220, 1231-1232 (Cal. App. 2d Dist. 2010).

Regardless, the fact that Plaintiff has retained an expert does not foreclose liability under the consumer expectation test. Bresnahan v. Chrysler Corp., 32 Cal. App. 4th 1559, 1568 (Cal. App. 2d Dist. 1995). Defendant’s argument lacks merit.

Defendant’s attempt to foreclose the second theory under risk-benefit analysis fails for the same reason previously discussed. Defendant argues that since Plaintiffs do not have the scooter, they cannot establish that the risks outweigh the benefits.

First, lack of the actual scooter is not an impediment to Plaintiffs’ claims as previously discussed.
Second, the issue cannot be adjudicated as it does not entirely dispose of Plaintiffs’ product liability claim. Cal Code Civ Procedure § 437c(f)(1). Additionally, Defendant relies on its research and development manager who does not qualify as an expert in anything relevant to product design or safety or engineering or accident reconstruction. He is not an engineer, but opines that the design of the endcaps are “durable.”

Defendant argues that the metal exposure on the handlebars was an obvious risk for which Defendant is not liable. However, the fact that the Plaintiffs may have observed that the endcaps had come off and the metal was exposed does not preclude liability. This is a jury question.
Pike v. Frank G. Hough Co., 2 Cal. 3d 465, 474 (Cal. 1970).

Therefore, even if it is undisputed that Plaintiff’s mother read the warnings and knew that worn or broken parts should be replaced (inferring the risk was obvious), this does not preclude liability. That assertion, inferred by Facts 8 and 9, is disputed by Plaintiff’s expert, Henricus Jansen. He opines that the warnings were not adequate in the first place. Jansen, ¶ 9.

Plaintiff’s evidentiary objections to the declaration of Robert Hadley are SUSTAINED. He is unqualified as an expert and therefore, his opinions lack foundation. Objection #1 is additionally sustained on grounds of hearsay.

Defendant’s objections to Plaintiff’s expert declaration, Henricus P. Jansen, MSc are OVERRULED. He has established his qualifications to support the opinions contained in the declaration.