Case Number: BC629772 Hearing Date: December 28, 2018 Dept: A

Hazard v Burbank Auto Parts

Motion FOR summary judgment OR SUMMARY ADJUDICATION

Calendar:

2

Case No.:

BC629772

Hearing Date:

12/28/18

Action Filed:

8/5/16

Trial Date:

None

MP:

Defendant/Cross-Defendant, and Cross-Complainant Vehicle Effects, Inc.

RP:

Plaintiff Michael Hazard

ALLEGATIONS:

In this action, Plaintiff Michael Hazard alleges that he was injured when an ATP Z295 replacement flywheel that was installed onto a 1996 Chevrolet Chevelle V8-396 engine suddenly and unexpectedly shattered and disintegrated. Plaintiff alleges that the flywheel was designed and manufactured by Defendant ATP, Inc. (“ATP”) and that the flywheel was sold by Defendant Burbank Auto Parts, Inc.

The complaint, filed August 5, 2016, alleges causes of action for: (1) strict products liability – manufacturing and design defect; (2) negligence; (3) strict products liability – failure to warn; (4) breach of implied warranty of merchantability; (5) fraudulent concealment; and (6) claim for punitive damages.

On September 8, 2017, Defendant/Cross-Complainant North Hollywood Auto Parts, Inc. (sued as Burbank Auto Parts) (hereinafter, “NHAP”) filed a cross-complaint against ATP and Vehicle Effects, Inc. (“Vehicle Effects”) for: (1) indemnity; (2) apportionment of fault; and (3) declaratory relief.

RELIEF REQUESTED:

Vehicle Effects moves for summary judgment against Plaintiff on the complaint and against NHAP on the cross-complaint.

Alternatively, Vehicle Effects moves for summary adjudication on the following issues:

– Issue 1: No triable issue of fact exists regarding Plaintiff’s 1st cause of action against it.

– Issue 2: No triable issue of fact exists regarding Plaintiff’s 2nd cause of action against it.

– Issue 3: No triable issue of fact exists regarding Plaintiff’s 3rd cause of action against it.

– Issue 4: No triable issue of fact exists regarding Plaintiff’s 4th cause of action against it.

DISCUSSION:

Strict Products Liability – Failure to Warn and Breach of Implied Warranty of Merchantability (3rd and 4th causes of action)

Vehicle Effects moves for summary adjudication on Issues 3 and 4 regarding the 3rd and 4th causes of action for strict products liability – failure to warn and breach of implied warranty of merchantability, respectively.

In opposition, Plaintiff states that he does not oppose the motion on the 3rd and 4th causes of action. (Opp. at p. 2, fn. 1.)

Thus, the motion for summary adjudication on Issue 3 and 4 will be granted.

Issues 1 and 2 regarding the 1st cause of action for strict products liability – manufacturing and design defect and the 2nd cause of action for negligence remain.

Negligence (2nd cause of action)

The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)

Vehicle Effects moves for summary adjudication on this cause of action, arguing that Plaintiff cannot demonstrate that any act or omission on Vehicle Effects’ part was a “substantial factor” in causing Plaintiff’s injury, or that any act or omission by it was any factor in Plaintiff’s injury.

In the complaint, Plaintiff alleges that Defendants owed Plaintiff a duty to exercise reasonable care in the design and/or testing, manufacture, assembly, sale, distribution, installation, inspection, and servicing of the subject flywheel, and a duty to ensure the flywheel did not cause Plaintiff and others unnecessary injuries. (Compl., ¶12.)

In support of the motion, Vehicle Effects provides the following facts and evidence. Dennis McCarthy, owner and president of Vehicle Effects, provides his declaration stating that Vehicle Effects builds and modifies vehicles for use in motion pictures. (Fact 1.) In 2014, Vehicle Effects purchased a 1965 Chevrolet Chevelle with a 1966 396 V-8 engine with an automatic transmission. (Fact 2.) After purchasing the vehicle, Vehicle Effects determined to put a manual transmission into it. (Fact 3.) On July 29, 2014, it requested NHAP to obtain a clutch kit and flywheel for the vehicle, without specifying any particular model and trusting NHAP to provide the correct parts (based on their history of doing business together). (Fact 3.) NHAP obtained an ATP-Inc. Z296 Flywheel rather than a part from an Original Equipment Manufacturer (“OEM”), which Roy Lipner (ATP’s PMQ) opined was appropriate for the vehicle. (Fact 4-5.)

Mr. McCarthy states that Vehicle Effects replaced the transmission in early January 2015 by its mechanic, Josh King. (Fact 6.) On January 31, 2015, the installed flywheel flew apart while the vehicle was running in Vehicle Effects’ garage, damaging parts of the vehicle and injuring Plaintiff. (Fact 7.) Mr. McCarthy also states that Vehicle Effects did not manufacture or design the flywheel that came apart and injured Plaintiff, nor did it sell or distribute the flywheel, but was merely a “consumer purchaser” of the flywheel. (Fact 10.) In his deposition, Plaintiff stated that he did not believe any act of Mr. McCarthy and Vehicle Effects caused his injuries. (Fact 8.)

While Vehicle Effects has provided some evidence showing that it did not design, manufacture, sell, or distribute the flywheel, Vehicle Effects has not shown that it did not assemble, install, inspect, or service the subject flywheel. Thus, Vehicle Effects only addresses a portion of the allegations in the complaint. (See Compl., ¶12.) The duty to define the issues presented by the complaint and to challenge them factually is on the defendant seeking summary judgment. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1114.) If a plaintiff pleads several theories or anticipates affirmative defenses by a show of excusing events or conditions, the challenge to the opponent is made by the complaint, requiring the moving defendant to affirmatively react to each theory and excusing or justifying event, or condition which supports a theory, if the motion is to be successful. (Id.) As a result, when the plaintiff pleads several theories, the defendant has the burden of demonstrating that there are no material facts requiring trial on any of them. (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.) Because Vehicle Effects’ motion only addresses several but not all of Plaintiff’s theory of negligence liability, Vehicle Effects has not upheld its initial burden in summary adjudication.

Next, Vehicle Effects argues that Plaintiff’s entire action is based solely on conjecture. Vehicle Effects relies on Plaintiff’s special interrogatory responses, which were purportedly attached as Exhibit C to the moving papers. (See Mot. at p.9.) However, as pointed out by Plaintiff, no Exhibit C has been attached. Pursuant to CCP §437c(b)(1), Vehicle Effects was required to support the moving papers will all evidence, including answers to interrogatories. It has failed to do so with the moving papers and thus has not upheld its initial burden in summary adjudication on this basis.

To the extent Vehicle Effects relies on Plaintiff’s deposition testimony as an admission that Vehicle Effects and Mr. McCarthy did not cause his injury, such opinions by Plaintiff are inadequate for the purpose. As raised by Plaintiff in the opposition, he did not have the opportunity to observe the subject engine, flywheel, or clutch assembly before or after the incident; nor did he speak with Mr. McCarthy about the installation or know anything was wrong with the flywheel installed. (Opp. at p.14; Pl’s Add’l Fact 49-53.) A review of the deposition testimony shows that counsel objected on the basis that the questions called for an improper legal conclusion, expert testimony, speculation, outside the expertise of Plaintiff/lay witness, and calls for speculation. (Mot., Ex. B.) These objections are proper correct and sustained and thus this testimony by Plaintiff, without more context and Plaintiff’s qualifications to provide expert and legal opinion, is ignored.

Finally, even if the Court were to find that Vehicle Effects upheld its initial burden in summary judgment/adjudication, Plaintiff is able to raise triable issues of material fact.

For more context, Plaintiff provides evidence that on the night of the subject incident, he was at Mr. McCarthy’s house and Mr. McCarthy invited Plaintiff into his garage to show Plaintiff the subject vehicle. (Pl.’s Add’l Fact 13-14.) Mr. McCarthy was in the driver’s seat, while Plaintiff was standing outside the vehicle on the passenger’s side, when Mr. McCarthy turned the engine on and revved the engine twice without incident. (Pl’s Add’l Fact 15-21.) Mr. McCarthy then revved the engine a third time to 3,500 rpm and the engine went “boom”, causing smoke and the engine to stop. (Pl’s Add’l Fact 22-23.) Plaintiff was then on the ground with multiple compound fractures to his leg from chunks of flywheel. (Pl’s Add’l Fact 24-26.)

In support of the opposition, Plaintiff provides the declaration of his retained automobile expert, Thomas J. Lepper, CFEI, CVFI. Mr. Lepper states that he inspected the subject engine and remnant flywheel parts to form his opinions. (Lepper Decl., ¶¶5-6.) He opines that the flywheel and clutch assembly were improperly installed/aligned/mated, and this failure caused significant damage to the flywheel, clutch disc, and pressure plate. (Id., ¶6.) He describes the component parts of the clutch assembly and flywheel and how they operate together. (Id., ¶¶7-10.) He states that when installing the clutch assembly, it is important to ensure that there is proper mating/alignment between the flywheel, clutch disc, pressure plate, and pilot bearing, and that one ensures proper mating/alignment by driving the vehicle a short distance and re-examining and re-aligning the parts. (Id., ¶¶11-12.) He states that improper alignment/mating may result in damage to the parts, causing friction surfaces to fuse together, hot spots, friction surface glazing, and possible failure of the flywheel, clutch disc, pressure plate, or pilot bearing. (Id., ¶13.) He states that friction between the flywheel, clutch disc, pressure plate, or pilot bearing, and resulting heat can be visible in the form of hot spots. (Id., ¶14.)

Mr. Lepper opines that based on his inspection, he observed significant amounts of heat damage to the flywheel, fragment pieces to the flywheel, and the pressure plate. (Lepper Decl., ¶15.) He opines that given the significant heat damage to the surviving components, it is readily apparent that Vehicle Effects improperly installed and/or improperly mated/aligned the flywheel, clutch disc, and/or pressure plate. (Id., ¶17.) In addition, Mr. Lepper believes that Vehicle Effects did not follow the best practices in the industry when installing the flywheel because Vehicle Effects used low quality retainer bolts, allowed varying amounts of oil to remain on the flywheel bolts, failed to adequately torque the bolts, had an excessive amount of Loctite on some of the bolts’ threads, and installed bolts with Star Lock washers. (Id., ¶18.) Thus, he opines that Vehicle Effects’ failures were a substantial factor in the failure of the component parts, including the flywheel, and the resulting injuries to Plaintiff. (Id., ¶19.)

The expert opinions raised in the declaration of Mr. Lepper raise triable issues of material fact regarding whether Vehicle Effects was negligent in installing, aligning, mating, etc. the flywheel and other component parts to the vehicle and thereby caused Plaintiff injury.

Thus, for all the reasons above, the Court will deny the motion for summary adjudication on Issue 2 regarding the 2nd cause of action.

Strict Products Liability – Manufacturing and Design Defect (1st cause of action)

“A manufacturer may be held strictly liable for its product if the plaintiff was injured while using the product in a reasonably foreseeable way.” (Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1000.) The product need not be unreasonably dangerous—just defective. (Id.) Products liability may be premised upon a theory of design, defect, manufacturing defect, or failure to warn. (Id.)

For a claim based on design and manufacturing defect, the plaintiff must plead and prove 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.) Retailers like manufacturers are also engaged in the business of distribution goods to the public, such that they are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products. (Id. at 912.)

This 1st cause of action is premised on the allegation that: “The Defendants, and each of them, either designed, and/or engineered, developed, manufactured, fabricated, assembled, equipped, tested or failed to test, inspected or failed to inspect, failed to recall, labeled, advertised, promoted, marketed, supplied, distributed, wholesaled and sold the Subject Flywheel and its component parts and constituents, which was intended by the Defendants, and each of them, to be used as a replacement part for the Subject Vehicle and for other related activities.” (Compl., ¶26.)

Vehicle Effects moves for summary adjudication on the 1st cause of action, arguing that it cannot be liable for strict products liability under the theories of manufacturing and design defects because it was merely a consumer of the flywheel and clutch assembly parts purchased from NHAP. In the separate statement, Vehicle Effects relies on the same 10 Facts in support of Issue 1 and Issue 2; thus, the Facts will not be summarized again. In addition, Vehicle Effects cites to the subsequent paragraph of Plaintiff’s complaint, which alleges that “The Defendants … knew or in the exercise of reasonable care should have known that the Subject Flywheel was to be purchased and/or used without inspection for defects by consumers, including in this case employees of Defendant Vehicle Effects, Dennis McCarthy, the Plaintiff and the general public.” (Compl., ¶27.) Thus, it argues that it was the purchaser of the subject flywheel and did not sell the flywheel.

In the opposition, Plaintiff argues that he is not seeking to hold Vehicle Effects liable for this cause of action on the basis that Vehicle Effects manufactured, designed, sold, or distributed the subject flywheel, but that Vehicle Effects is a lessor of vehicles and put the vehicle in the stream of commerce. Plaintiff relies on his Additional Material Facts, stating that Mr. McCarthy is the owner of the Vehicle Effects, a company that builds and modifies vehicles for use in the motion picture industry; Vehicle Effects has an inventory of vehicles it makes available for lease/rent to movie studios; and the subject vehicle was purchased as a studio rental, but also for use by Mr. McCarthy. (Pl.’s Add’l Fact 1-4.) Vehicle Effects’ Facts 1-3 are undisputed, which make similar statements that Vehicle Effects purchased the subject vehicle as a studio rental and personal use by Mr. McCarthy in July 2014 and thereafter modified in January 2015.

Based on the evidence provided by Vehicle Effects, the Court cannot ascertain whether Vehicle Effects put the vehicle into the stream of commerce by marketing the vehicle for lease to movie studios. There are no facts and evidence regarding this issue. At most, Vehicle Effects states that it purchased the subject vehicle as a “studio rental” (Fact 2), the vehicle was thereafter modified in early January 2015 (Fact 6), and the accident occurred at Mr. McCarthy’s home (Pl.’s Add’l Fact 14-15). (See Reply at p.6.) Vehicle Effects also argues that it did not sell or lease the vehicle or that Plaintiff failed to establish an essential element of marketing/distribution for his strict liability claim, but such arguments alone without evidence are insufficient and it is Vehicle Effects’ burden in summary judgment to negate the elements. Vehicle Effects has not raised evidence negating whether from the time of modification to the time of Plaintiff’s injury Vehicle Effects marketed and leased the vehicle. (McClaflin v. Bayshore Equipment Rental Co. (1969) 274 Cal.App.2d 446, 452 [“Lessors of personal property, like the manufacturers or retailers thereof, ‘are engaged in the business of distributing goods to the public. They are an integral part of the overall … marketing enterprise that should bear the cost of injuries resulting from defective products.’”].) Further, the Court notes that though Plaintiff was not a lessee of the vehicle, “California provides broad protection to bystanders and does not limit strict liability to situations occurring after sale of the product or equivalent transaction.” (Nelson v. Superior Court (2006) 144 Cal.App.4th 689, 698.)

In addition, even if the burden shifted to Plaintiff, Plaintiff has provided triable issues of material fact regarding whether Vehicle Effects tested the subject flywheel to ensure that it met OEM specifications for the particular vehicle at issue. (See Pl.’s Add’l Fact 41-48.) Nikhil K. Kar, Ph.D., P.E., a professional materials/metallurgical and mechanical engineer, provides his expert opinion on the flywheel and component parts placed in the subject vehicle. (Kar Decl., ¶¶12-14.) Dr. Kar opines that the combined effect of the excessive clutch slip during operation and improper clutch assembly installation and/or poor adjustment led to significant heat build-up and subsequent brittle and explosive fracture of the flywheel, pressure plate, and other associated components. (Id., ¶13.) He opines that had the subject flywheel been made of ductile iron or steel and met OEM specifications (rather than cast gray iron), it is more likely than not that the explosive, sudden fracture of the flywheel would not have occurred or there would have been some indication that an overheat condition between the clutch assembly and flywheel was taking place, and the accident may have been prevented. (Id., ¶14.) This evidence provides support to find a triable issue of material fact.

Thus, the Court will deny the motion for summary adjudication on Issue 1 regarding the 1st cause of action in the complaint.

NHAP’s Cross-Complaint

Vehicle Effects argues that if summary judgment is entered in favor of Vehicle Effects on Plaintiff’s complaint, then summary judgment should be entered in its favor on NHAP’s cross-complaint for comparative negligence, equitable indemnity, and declaratory relief.

As Vehicle Effects’ motion for summary adjudication is granted in part and denied in part, the Court will deny Vehicle Effects’ motion for summary judgment on the issue regarding NHAP’s cross-complaint.

RULING:

Grant Vehicle Effects’ motion for summary adjudication as to Issues 3 and 4 regarding the 3rd and 4th causes of action in Plaintiff’s complaint. Deny the motion as to Issues 1 and 2 on the complaint.

Deny Vehicle Effects’ motion for summary judgment on NHAP’s cross-complaint.