2015-00179343-CU-PO

Richard M. Main vs. CX Hydroponics

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Azevedo, Julie M.

Labmor Enterprises Motion for Summary Judgment/Summary Adjudication is denied.

Plaintiff’s “Objections to Evidence” are overruled. The objections were to UMFs, not to specific evidence. Evidentiary objections must be in the form set forth in CRC 1354 (d).

Defendant’s Objections to Evidence:

Overruled. The evidentiary objections are not in the required format. See CRC 1354 (d).

Labmor Enterprises moves for summary judgment pursuant to California Code of Civil Procedure Section 437c, subdivision (a) on the grounds that Labmor Enterprises owed no duty to Plaintiff as to his negligence cause of action. Additionally, Labmor Enterprises contends it cannot be held liable under a strict liability theory for the product Crystal Cocktail, because Labmor Enterprises was not involved in placing the product in the stream of commerce. In the alternative, Defendant moves for summary adjudication pursuant to California Code of Civil Procedure Section 437c, subdivision (f)(1).

The 2015 complaint alleges causes of action for Negligence and Strict Product Defect. The complaint alleges that on November 21, 2014, Plaintiff attended a marketing promotional event at Smith Flat House Restaurant in Placerville, California. This meeting is alleged to have been arranged by the

manufacturers, promoters, marketers, suppliers, distributors and sellers of a

hydroponics plant additive called “Crystal Cocktail.” Labmore is alleged to be the distributor of the product. Mr. Williams of CX Hydroponics (a co-defendant) is alleged to have represented at this promotional event that Crystal Cocktail was an organic product safe for human consumption. Williams offered $50.00 to anyone who would drink a shot of Crystal Cocktail. Plaintiff, an employee of defendant Constantly Growing, LLC (“CG LLC”) at the time, drank a shot and became noticeably ill. Shortly after leaving the event he went into cardiac arrest as the alleged result of his ingestion of the Crystal Cocktail. Although Plaintiff was resuscitated, he alleges he suffered severe and permanent anoxic brain injury. Plaintiff alleges that Crystal Cocktail contains paclobutrazol, an allegedly dangerous and potentially fatal herbicide, and alleges that due to the inclusion of paclobutrazol, Crystal Cocktail is defective and unreasonably dangerous, and lacks reasonable instructions and warnings. Plaintiff alleges that Labmor and other defendants promoted, encouraged, rewarded and allowed Plaintiff to drink Crystal Cocktail as part of a demonstration of Crystal Cocktail’s purported safety for human consumption and ingestion.

Plaintiff’s 2016 Complaint (consolidated with this action) alleges Labmor is a distributor of CX Hydroponics products, and that it received and accepted delivery of a shipment of Crystal Cocktail in mid-November 2014, before the promotional event. He alleges Labmor obtained the product to promote, market and sell Crystal Cocktail. Stacy and/or Stephanie Labbitt of Constantly Growing LLC, plaintiff’s employer, are also the owners of Labmor. (Complaint ¶3, ROA 140)

In support of the motion, Labmor presents evidence that Labmor was a wholesale distributor of hydroponics (UMF2), that Plaintiff was employed by Constantly Growing, not Labmor (UMF 5), and that plaintiff voluntarily drank the Crystal Cocktail offered by Mr. Williams (UMF 6-9) Casey Labbitt made no representations about the safety of the product nor did he encourage anyone to drink it (UMF 11). Casey and Stephanie Labbitt are the managing members of Constantly Growing LLC (plaintiff’s employer) and Casey attended the meeting where plaintiff drank the product only in his capacity as a member and an employee of Constantly Growing, LLC. (UMF 12) In November of 2014, Labmor had never designed, engineered, distributed, or manufactured Crystal Cocktail, nor had it sold Crystal Cocktail to plaintiff or the public, or received any direct financial benefit from Crystal Cocktail. (UMF 13, 14, Labbitt Decl. ¶14) Crystal Cocktail’s Material Safety Data Sheet [MSDS] shows various risks associated with it, including that it is not safe for human consumption. (UMF 15) Plaintiff did not consume Crystal Cocktail alone but rather was ingesting alcohol at the same time. (UMF 16) Those attending the meeting said Crystal Cocktail smelled bad and was unappealing. No one besides plaintiff drank it. (UMF 17) Williams from CX Hydroponics, provided the one liter bottle from which the shot was poured. (UMF 18)

In opposition to the motion, plaintiff has presented evidence that Labmor received a shipment of Crystal Cocktail around the time of the meeting at which plaintiff ingested it. (D’Ambrosio Decl ¶ 13, Ex. 9)(Cordero Decl. ¶ 4, Ex. 5) The reason Labmor and Constantly Growing received the pallet of Crystal Cocktail was to get feedback from customers to see if it was a product worth carrying. (Fieri Depo 32) Plaintiff has presented evidence that Labmor’s owners planned the meeting in order to promote the Crystal Cocktail . (Depo Brennan Williams page 41; Fieri Deposition page 28) ) Stephanie Labbit, owner of Labmor, invited all Constantly Growing employees to the meeting. (Wolden Decl. Ex. 2) Plaintiff has also presented evidence that Constantly Growing and Labmor were an interconnected enterprise in which all employees for one were employed by the other and their warehouses were right next to each other. The

physical facilities were located in the same building. (Fieri Depo p. 88) Plaintiff presents evidence that Labmor Employee Greg Cordero distributed Crystal Cocktail at Casey Labbitt’s direction. Plaintiff has submitted evidence that Casey Labbitt encouraged plaintiff to drink the shot of Crystal Cocktail and egged him on. (Depo of plaintiff p 140) Casey Labbitt did not come to plaintiff’s aid when he heard plaintiff complain to the manager that he was not feeling well. Casey Labbitt erased the video of the incident from his phone the next day after he learned what had happened to plaintiff. (Labbitt Depo, page 50-51) Casey Labbitt directed Cordero to deliver bottles of Crystal Cocktail to Labmor’s customers. (Plaintiff’s Fact 23) In response to these directions, Greg Cordero personally pulled bottles of Crystal Cocktail from a covered pallet. (PDF 24) He delivered these bottles of Crystal Cocktail to Labmor’s customers as directed by Casey Labbitt. (PDF 25) The Crystal Cocktail bottle has no warnings, and no instructions. (PDF 86.) It has no poison control disclosures. (PDF 86.)

In Reply, defendant contends that since plaintiff has not alleged alter ego liability in the Complaint, he cannot contend Casey Labbitt was not acting on behalf of Labmor at the time he attended the event. The Court rejects this argument, as plaintiff has presented evidence that Labmor provided the bottle of Crystal Cocktail at the meeting.

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991)

231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.

Second, the Court is required to determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action.

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p) (2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is required only to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855).

Finally, once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). In ruling on the motion, the court must consider the

evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion.

(Aguilar, supra, 25 Cal.4th at p. 843.) The Court must strictly construe the affidavits of the moving party, and liberally construe those of the opponent. Any doubts about granting the motion should be resolved in favor of the opponent of the motion.

As to the strict liability claim, those in the continuous business of supplying products manufactured by others fall within the fair and reasonable ambit of those subject to strict liability. (Tauber-Arons Auctioneers Co. v Sup. Ct. (1980) 101 Cal.App.3d 268, at 283-284 (citing Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262-263.) The doctrine of strict products liability imposes liability in tort on all of the participants in the chain of distribution of a defective product. The purpose of the doctrine is “to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. Bostick v. Flex Equip. Co., Inc. (2007) 147 Cal.App.4th 80, 88 . Even those who fall “‘outside the vertical chain of distribution of the product, but “play [] an integral role in the ‘producing and marketing enterprise’ of a defective product” are appropriately subject to strict liability. (Arriaga v. CitiCapital Commercial Corp.(2008) 167 Cal.App.4th 1527, 1535.) “It is the defendant’s participatory conduct” “as a conduit for the production or distribution” which is “significant” in the determination to impose liability. (Tauber-Arons, supra, at 276-77.) But, stream of commerce liability will not extend to those who play a mere “random and accidental role in the overall marketing enterprise of the product in question.” ( Garcia v. Haslett (1970) 3 Cal.Appl.3d 319, 326.)

Labmor’s predominant attack against Plaintiff Main’s strict liability cause of action is that Labmor had not designed, engineered, manufactured or distributed Crystal Cocktail. (Labmor’s UMF No. 13, Labbitt Dec, ¶ 14)

A trier of fact could infer from the evidence presented by plaintiff that Labmor was a distributor of the Crystal Cocktail product at the time of the meeting, that Casey Labbit planned the meeting and attended it in his capacity as a Labmor representative and not just as a representative of Constantly Growing, and that Labmor provided the bottle of Crystal Cocktail that plaintiff ingested. Therefore there are material issues of fact as to at least UMF Nos. 11, 12, 13, 14, and 18.

While defendant contends Brennan Williams’ alleged verbal representations regarding the safety of drinking Crystal Cocktail are alleged to have caused Main’s decision to drink, a trier of fact could infer that the presence of warning label about the dangerous propensities of Paclobutrazol might have influenced plaintiff to not drink the Crystal Cocktail. That fact that the Material Data Safety sheet stated that the product was not safe for human consumption does not address the allegation that the bottle itself contained no warning.

As to the negligence claim, the issues of fact raised in UMFs 11, 12, 13, 14, and 18 could lead a trier of fact to infer that Labmor was negligent in failing to act reasonably in promoting Crystal Cocktail and failing to take affirmative action to warn, assist or protect the plaintiff both before and after he ingested the substance. “Under California law, a product may be defective because of the absence of an adequate warning of the dangers inherent in its use.” Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1320.

The motion for summary judgment/summary adjudication is denied.