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This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 09:04:28 (UTC).

LUIS DE LA ROSA GEREZ ET AL VS INTEREX CORP

Case Summary

On 08/11/2016 LUIS DE LA ROSA GEREZ filed a Personal Injury - Other Personal Injury lawsuit against INTEREX CORP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0236

  • Filing Date:

    08/11/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiffs and Petitioners

FAVELA-GARY OLIVIA

GEREZ LUIS DE LA ROSA

Claimant

SAFETY NATIONAL CASUALTY CORPORATION

Defendants, Respondents and Cross Plaintiffs

INTEREX ENTERPRISES CORP.

DOES 1 THROUGH 100

INTEREX CORP.

JARED LOGISTICS LLC DOE 5

AGUIRRE EXPRESS CORP. DOE 6

INFINITE LOGISTICS SOLUTIONS LTD.

Cross Defendants

JARED LOGISTICS LLC ROE 2

C.H. ROBINSON WORLDWIDE INC

GENERAL FREIGHT HANDLERS INC.

AGUIRRE EXPRESS CORP. ROE 3

TANJORE CORPORATION LTD.

INFINITE LOGISTICS SOLUTIONS LTD.

Not Classified By Court

EMPAQUES IMPRESOS OCRESA S.A. DE C.V.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GRASSINI WRINKLE & JOHNSON

SHEPARDSON MARSHALL JAMES

REAGAN ROBERT B.

Claimant Attorney

LUCIANO SAERIM

Defendant Attorneys

SARGOY CHRISTOPHER MICHAEL

RAPOPORT GREGG AARON

Cross Plaintiff Attorney

LUKAS EDWARD W. JR. ESQ.

Cross Defendant Attorneys

JOSHUA TAUFIKI DAIMA

HINCHCLIFFE EVERETT SANDERS

MCDONALD MARGARET CLEMANS

VOSS MATTHEW ERIC

DE LA ROSA YADIRA

Not Classified By Court Attorney

SULLIVAN SEAN

 

Court Documents

Objection

6/14/2019: Objection

Opposition

6/19/2019: Opposition

Minute Order

6/19/2019: Minute Order

Order

6/27/2019: Order

PROOF OF SERVICE SUMMONS

12/20/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE OF SUMMONS

4/2/2018: PROOF OF SERVICE OF SUMMONS

DEFENDANT C.H. ROBINSON WORLDWIDE INC. DOE 3 ANSWER TO PLAINTIFFS COMPLAINT

9/7/2018: DEFENDANT C.H. ROBINSON WORLDWIDE INC. DOE 3 ANSWER TO PLAINTIFFS COMPLAINT

Motion to Quash Service of Summons

10/25/2018: Motion to Quash Service of Summons

Request for Judicial Notice

10/25/2018: Request for Judicial Notice

Declaration

11/8/2018: Declaration

Case Management Statement

12/21/2018: Case Management Statement

Case Management Statement

12/24/2018: Case Management Statement

Separate Statement

3/28/2019: Separate Statement

Declaration

5/31/2019: Declaration

Notice

6/3/2019: Notice

Declaration

6/5/2019: Declaration

SUMMONS

8/11/2016: SUMMONS

AMENDMENT TO COMPLAINT

12/11/2017: AMENDMENT TO COMPLAINT

140 More Documents Available

 

Docket Entries

  • 03/30/2020
  • Hearingat 10:00 AM in Department O at 1725 Main Street, Santa Monica, CA 90401; Jury Trial

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  • 03/20/2020
  • Hearingat 09:30 AM in Department O at 1725 Main Street, Santa Monica, CA 90401; Final Status Conference

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  • 10/02/2019
  • Hearingat 08:30 AM in Department O at 1725 Main Street, Santa Monica, CA 90401; Hearing on Motion to Quash Service of Summons

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  • 08/12/2019
  • Docketat 08:30 AM in Department 2, Georgina T. Rizk, Presiding; (OSC RE Dismissal) - Not Held - Vacated by Court

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  • 07/26/2019
  • DocketNotice of Ruling; Filed by C.H. ROBINSON WORLDWIDE, INC (Cross-Defendant)

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  • 07/24/2019
  • Docketat 08:30 AM in Department O; Hearing on Motion for Summary Judgment - Held - Motion Granted

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  • 07/24/2019
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by C.H. ROBINSON WORLDWIDE, INC (Cross-Defendant)

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  • 07/24/2019
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment)); Filed by Clerk

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  • 06/27/2019
  • DocketOrder ([PROPOSED] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT OF C. H. ROBINSON WORLDWIDE, INC., AGAINST INTEREX CORP., DBA INTEREX ENTERPRISES CORP.); Filed by C.H. ROBINSON WORLDWIDE, INC (Cross-Defendant)

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  • 06/26/2019
  • Docketat 08:30 AM in Department O; Hearing on Motion for Summary Judgment - Held - Continued

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214 More Docket Entries
  • 07/14/2017
  • DocketNotice of Change of Address or Other Contact Information; Filed by Interex Corp. (Defendant); Interex Enterprises Corp. (Defendant)

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  • 10/28/2016
  • DocketNOTICE OF ACTION

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  • 10/28/2016
  • DocketNotice; Filed by Olivia Favela-Gary (Plaintiff); Luis De La Rosa Gerez (Plaintiff)

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  • 10/12/2016
  • DocketAnswer; Filed by Interex Corp. (Defendant)

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  • 10/12/2016
  • DocketANSWER TO COMPLAINT; DEMAND EOR JURY

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  • 09/08/2016
  • DocketProof-Service/Summons; Filed by Luis De La Rosa Gerez (Plaintiff)

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  • 09/08/2016
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 08/11/2016
  • DocketSUMMONS

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  • 08/11/2016
  • DocketCOMPLAINT FOR PERSONAL INJURIES AND DAMAGES STRICT PRODUCTS LIABILITY; NEGLIGENCE; LOSS OF CONSORTIUM

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  • 08/11/2016
  • DocketComplaint; Filed by Olivia Favela-Gary (Plaintiff); Luis De La Rosa Gerez (Plaintiff)

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Tentative Rulings

Case Number: BC630236    Hearing Date: August 20, 2020    Dept: O

BC630236 LUIS DE LA ROSA GEREZ ET AL VS INTEREX CORPHearing on Motion to Bifurcate Trial08/20/2020
The motion to bifurcate the trial is continued to be heard concurrent with the Final Status Conference, currently set for January 15, 2020.  It is likely the case will be referred back to Department 1, for assignment to a PI trial court for trial.  This motion is best heard by the trial judge at the final status conference.

Case Number: BC630236    Hearing Date: June 30, 2020    Dept: O

Case Name: Gerez, et al. v. Interex Corp., et al.
Case No.: BC630236 Complaint Filed: 8-11-16
Hearing Date: 6-30-20 Discovery C/O: 3-2-20
Calendar No.: 7 Discover Motion C/O: 3-16-20
POS: OK Trial Date: 5-18-20
SUBJECT: MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 
MOVING PARTY: Defendant Interex Corp. d/b/a Interex Enterprises Corp.
RESP. PARTY: Plaintiffs Luis de La Rosa Gerez and Olivia Favela-Gary
TENTATIVE RULING
  Defendant’s Motion for Summary Judgment, or in the alternative Summary Adjudication, is DENIED.  
I.  Triable issues of fact remain as to Plaintiff’s design defect claim
“Design defect” strict liability may be established under either of two alternative tests, commonly known as the “consumer expectation” and “risk-benefit” tests.  See Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30; Barker v. Lull Engineering Co., Inc. (1978) 20 Cal.3d 413, 430.  “Indeed, the two theories are true alternative tests, since (1) the consumer expectation test applies only in cases where the trier of fact can evaluate a product's safety design based on ‘the everyday experience of the product's users’ and (2) a finding that the product's design is not defective under the risk-benefit test does not negate liability under the consumer expectation test.”  See Demara v. Raymond Corp. (2017) 13 Cal.App.5th 545, 554.  Depending on the facts and circumstances, both may be presented to the trier of fact in the same case.  Id. 
Consumer Expectation Test.  A product is defective in design if it failed to perform as safely as an ordinary consumer would expect (or have a right to expect) when using the product in an intended or reasonably foreseeable manner.  See Barker v. Lull Engineering Co., Inc., supra, 20 Cal.3d at 429-430.  “The critical question is whether the circumstances of the product's failure permit an inference that the product's design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers.  Because in many situations the consumer would have no idea how safe the product could be made, the consumer expectation test is reserved for those 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.  In those cases where an injury has been caused in a way that does not engage its ordinary consumers' reasonable minimum assumptions about safe performance, and the plaintiff's theory of defect seeks to examine the behavior of obscure components under complex circumstances outside the ordinary experience of the consumer, the consumer expectation test is inapplicable; and defect may only be proved by resort to the risk-benefit analysis.”  Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1310.  
If a plaintiff proceeds under the consumer expectation test at trial, “in addition to establishing a prima facie case regarding causation, the plaintiff must also produce evidence that the product failed to satisfy ordinary consumer expectations as to safety.”  Id. at 1311.  “When a product fails to satisfy such ordinary consumer expectations as to safety in its intended or reasonably foreseeable operation, a manufacturer is strictly liable for resulting injuries.  Under this standard, an injured plaintiff will frequently be able to demonstrate the defectiveness of a product by resort to circumstantial evidence, even when the accident itself precludes identification of the specific defect at fault.”  Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 430.  
The threshold to survive a defense summary judgment of a design defect claim based on the consumer expectation test is “quite low.”  Chavez, supra, 207 Cal.App.4th at 1311.  A plaintiff need only demonstrate that the consumer expectation test is properly applied to his or her design defect claim to defeat a defense summary judgment.  Id.  
Once it is established that the consumer expectation test is applicable, i.e. a case “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,” the jury must determine whether the allegedly defective product satisfied ordinary consumer expectations.  Id. at 1310.  A court can only determine that a design satisfies the consumer expectation test as an issue of law in exceptional circumstances, “where no jury could reasonably conclude the product failed to perform under the circumstances as safely as an ordinary consumer would expect.”  Id. at 1312 (no reasonable jury could conclude firearm did not meet ordinary consumer expectation test; “no reasonable consumer—whether relatively inexperienced with firearms or a seasoned law enforcement officer—would expect an lunlckable and loaded weapon, left in ready-to-fire condition in a location accessible to a child or other unauthorized users, not to accidentally discharge”).  
Risk-Benefit Test.  A design defect may exist because, in light of relevant factors, judged by hindsight, the risk of danger inherent in the challenged design outweighs the benefit of the design.  See Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30.  In determining whether the benefits outweigh the inherent dangers in the design, the trier of fact may consider (among other things): (1) the gravity of the danger imposed by the design; (2) the likelihood that such danger would cause injury; (3) the mechanical feasibility of a safer alternative design; (4) the financial cost of an improved design; and (5) the adverse consequences to the product and consumers that would result from an alternative design.  Id. 
“[A] product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies ‘excessive preventable danger,’ or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design.  Thus, the test is not ‘preventable danger’ but ‘excessive preventable danger.’  ‘Excessive’ preventable danger logically includes consideration of package warnings to determine the likelihood that harm will occur.”  Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1512.
Court cannot find, as an issue of law on summary judgment, that the box in question performed in accordance with ordinary consumer expectations.  Defendant does not argue that the consumer expectation test is inapplicable.  Plaintiff affirmatively asserts the product is defective under the consumer expectation test.  
In addition, it is undisputed that when Plaintiff lifted one of the Topo Chico cardboard boxes, the bottom failed to hold the bottles and one bottle fell through, smashing into the ground and injuring Plaintiff Luis’s eye.  See Defendant’s SSUMF Nos. 21-23; Plaintiff’s Response to Defendant’s SSUMF Nos. 21-23.  This is not a case where injury was due to the “behavior” of “obscure components” under “complex circumstances outside the ordinary experience of the consumer.”  See Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1310.  Instead, the everyday experience of box users would be sufficient to conclude whether the box in question violated minimum safety assumptions.  Id.  Under these circumstances, Defendant’s MSJ should be assessed under the ordinary consumer expectations test.  
As noted in Chavez, the threshold for a plaintiff to survive a defense summary judgment of a design defect claim is “quite low” and only requires that the plaintiff demonstrate that the consumer expectation test is properly applied to his or her design defect claim.  Id. at 1311.  For the reasons stated above, the consumer expectation test is properly applied to the design defect claim based on undisputed facts.  Plaintiffs’ design defect claim therefore meets the “low” threshold required to survive Defendant’s summary judgment motion.
Reasonable jurors could find the box failed to satisfy the ordinary consumer expectation test for design defect.  Defendant fails to present any evidence that would make Plaintiff’s case one of the “exceptional” instances “where no jury could reasonably conclude the product failed to perform under the circumstances as safely as an ordinary consumer would expect.”  Id. at 1310 and 1312.  According to Defendant’s reply, the box was so damaged while in Northgate’s custody from environmental factors, no reasonable consumer would expect the box to behave in any other way than to fail when lifted.  However, Defendant presents no admissible direct or circumstantial evidence to support such an assertion.  Defendant admits that the box was destroyed after the accident.  See Defendant’s SSUMF Nos. 29 and 30; Defendant’s Separately Bound Volume of Exhibits, Ex. F, Lopez Deposition, 81:3-82:1, 84:11-19.  Defendant’s other evidence supports a finding that nothing about the box’s appearance indicated it was defective or damaged when Northgate received it, or else Northgate would have rejected it.  Id. at SSUMF Nos. 14 and 15.  There is a factual dispute as to whether the bottom of the box was wet when Luis picked it up from the pallet.  See Defendant’s Evidence, Ex. F, Lopez Depo, 62:6-11; Plaintiff’s Dec. of Reagan, Ex. 1, L. Gerez Depo, 55:15-22 (denying any wetness on box when Luis picked it up).    
Defense expert Singh’s opinion as to the box’s safety would be irrelevant under the ordinary consumer test, because under that test, a product may be deemed “defective regardless of expert opinion about the merits of the design.”  Id. at 1310.  Singh does not and could not offer an admissible opinion regarding whether the box performed in accordance with ordinary consumer safety expectations.  See Dec. of J. Singh filed on 12-13-19, ¶¶9 and 11.  Singh’s testimony regarding whether the box was designed in accordance with industry standards and and whether it was “appropriate” for shipping containers is irrelevant to whether the box behaved as safely as the ordinary consumer would expect it to.  Singh’s testimony that the box could only have failed as a result of environmental factors, not the design, lacks foundation and is speculative.  Id. at ¶11.  
Triable issues of fact remain as to whether the box was defective in design under the consumer expectations test.  For this reason, the Court need not reach whether the design was defective under the risk-benefit test.  
Court cannot find that the box suffered from a design defect under the risk-benefit test.  Even if the Court were to assess Defendant’s MSJ based on the risk-benefit test, the motion would still be denied.  The risk-benefit test is multifactorial and ultimately requires the trier of fact to determine whether the design presents excessive preventable danger.  See Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30.  In determining whether the benefits outweigh the inherent dangers in the design, the trier of fact may consider (among other things): (1) the gravity of the danger imposed by the design; (2) the likelihood that such danger would cause injury; (3) the mechanical feasibility of a safer alternative design; (4) the financial cost of an improved design; and (5) the adverse consequences to the product and consumers that would result from an alternative design.  Kim, supra, 6 Cal.5th at 30.  
Under Kim, design that is in accordance with industry standard is potentially relevant to the mechanical feasibility of a safer alternative design.  Id. at 37.  However, if industry standard is merely submitted as standard of care evidence, i.e. “everyone does it” or “no one does it” and therefore the design is not or is defective.  Id. at 37.
Singh’s testimony that the boxes conformed to industry standard is not presented as evidence that a safer design was not feasible.  Instead, Singh’s testimony is presented as “standard of care” evidence, which is relevant to a negligence claim but irrelevant to a strict liability claim.  There is no discussion as to why adherence to industry standard can be interpreted to mean that a safer design is not feasible.  Likewise, Defendant provides no evidence or argument as to the financial cost of any purported improved design or the adverse consequences to the product and consumers if an alternative design were used.  As such, Defendant fails to meet its burden as moving party to establish absence of a design defect under the risk-benefit theory of design defect.  
II.  Triable issues of fact remain as to Plaintiff’s manufacturing defect claim 
Court can summarily adjudicate manufacturing defect claim as separate wrongful conduct from design defect claim.  Plaintiff argues the manufacturing defect claim cannot be summarily adjudicated, because it is not a separate cause of action.  However, as argued by Defendants, the manufacturing defect claim is based on separate and distinct conduct from the design defect claim.  For this reason, the manufacturing defect claim may be adjudicated separately from the design defect claim.  See Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 185, fn 7 (manufacturing and design defect theories of liability could have been alleged as separate counts and trial court could therefore properly adjudicate one theory of liability while allowing another theory of liability to proceeding)(citing Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1188; Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854–1855).  
Elements of a Manufacturing Defect Claim.  To establish a claim for manufacturing defect, plaintiff must prove all of the following: (1) that defendant manufactured, sold or distributed the product; (2) that the product contained a manufacturing defect when it left defendant’s possession; (3) that plaintiff was harmed; and (4) that the product was a substantial factor in causing plaintiff’s harm.  CACI 1201.  “A product contains a manufacturing defect if the product differs from the manufacturer's design or specifications or from other typical units of the same product line.”  CACI 1202.  
“In general, a manufacturing or production defect is readily identifiable because a defective product is one that differs from the manufacturer's intended result or from other ostensibly identical units of the same product line. For example, when a product comes off the assembly line in a substandard condition it has incurred a manufacturing defect.  A design defect, by contrast, cannot be identified simply by comparing the injury-producing product with the manufacturer's plans or with other units of the same product line, since by definition the plans and all such units will reflect the same design.”  Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 429.  
A plaintiff may establish a manufacturing defect despite unavailability of the allegedly defective product.  Defendant argues Plaintiff will be unable to establish his manufacturing defect claim, because the box in question was destroyed prior to filing of this litigation.  Defendant asserts case law bars manufacturing defect claims where the offending product has been discarded. 
Defendant relies primarily upon Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, 1366 for the proposition that a manufacturing defect claim is barred where the offending product has been discarded.  Stephen does not stand for such a broad principle, as noted in Cooper v. State Farm Mutual Automobile Ins. Co. (2009) 177 Cal.App.4th 876, 898, fn 7:
“In his opening statement, plaintiff relied on Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, 37 Cal.Rptr.3d 9 for the basic proposition that it is impossible for a plaintiff to prove an underlying case of product defect once the product is destroyed. We disagree with plaintiff's interpretation of that case. In Stephen, the court merely excluded expert opinion where there had been no expert examination of the tire and the opinions formed were based on ‘amateur photographs’ taken by an adjustor and Polaroid photographs taken by plaintiff's boyfriend.”  Cooper, supra, 177 Cal.App.4th at 898, fn 7.
In Stephen, the Court of Appeal affirmed the trial court’s exclusion of plaintiff’s expert’s testimony at trial, but it did not hold as a general rule that an expert must examine the allegedly defective product in order to render an admissible opinion.  Stephen, supra, 134 Cal.App.4th at 1366.  As noted by the Court of Appeal, the expert’s own testimony established that his opinion lacked foundation, because he had never formulated an expert opinion prior cases involving tire defects based on amateur photos:
“Baumgardner conceded that he had never before testified that a tire was defective without first examining the tire itself, and he agreed that the photographs were insufficient to rule out other causes of failure, such as whether the tread detachment was service-related, or impact-related, or a result of under-inflation, overloading, mounting damage, or wear. He admitted that his usual practice is to inspect the tire surfaces from a distance of inches, not feet, using bright lights and magnifiers.”  Id. at 1369.  
“The amateur photographs were not a substitute for a tire examination and they could not properly provide a basis for Baumgardner's opinion. As Baumgardner conceded, experts generally conduct visual and tactile examinations of failed tires to determine the cause of the failure and, at the same time, to rule out other possible causes.”  Id. at 1372.  
Thus, Stephen does not stand for the proposition that a manufacturing defect claim is barred if the product has been discarded.  Stephen is limited to its facts, i.e. cases involving manufacturing defects in tires where the expert himself admits that he could not formulate an opinion without the subject tire.  
In addition, a plaintiff may establish a manufacturing or design defect by circumstantial evidence.  A “plaintiff is entitled to establish the existence of the defect and the defendants' responsibility for it by circumstantial evidence.  No reason appears why the same rule should not apply where the plaintiff is seeking to prove that the defect caused his injuries.”  Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 584 (reversing nonsuit on grounds that evidence, when viewed in light most favorable to plaintiff, gave rise to inference injuries were proximately caused by defect in automobile which existed at the time of sale).
As such, the destruction of the box does not bar Plaintiff’s manufacturing defect claim.  Plaintiff may still submit circumstantial evidence and admissible expert testimony despite the unavailability of the subject box.  
Defendant fails to demonstrate Plaintiff’s inability to establish the existence of a manufacturing defect due to lack of evidence. A defendant may satisfy its initial burden on summary judgment by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  See Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590. Summary judgment still requires, however, the presentation of evidence in the form of “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice” to demonstrate that plaintiff does not possess and cannot reasonably obtain necessary evidence to establish his or her claim.  Id. at 854.  
For this reason, a defendant does not meet its burden under CCP §437(c)(o)(1) by merely “pointing out” or “arguing” that the plaintiff does not possess or cannot reasonably obtain necessary evidence. Id.; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89 (defendant bank did not meet its burden on summary judgment of wrongful foreclosure by merely arguing that plaintiff lacked evidence to support her claim and only documentary evidence submitted were the loan documents); Gaggero v. Yura (2003) 108 Cal.App.4th 884, 890 (defendant did not establish plaintiff’s lack of evidence or inability to reasonably obtain evidence of plaintiff’s ability and willingness to perform by pointing to plaintiff’s refusal to answer certain questions during deposition on grounds of a meritless privacy objection; such a refusal, regardless of its merit, was neither an admission nor a factually devoid discovery response).  Id. 
A defendant may rely upon a plaintiff’s factually devoid responses to establish that plaintiff does not possess and cannot reasonably obtain necessary evidence.  See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590. For example, in Union Bank, plaintiff sued defendants for various fraud claims. Defendants moved for summary judgment based on plaintiff’s responses to three RFAs and the accompanying Form Rog 17.1. Plaintiff refused to admit that Defendants (i) did not commit fraud against Plaintiff or (ii) that Defendants did not conspire to defraud Plaintiff.  Id. at 578. In connection with form rog 17.1 plaintiff could cite to no evidence or facts supporting their refusal to admit either of these facts.  Id.  Compounding the damaging effect of these factually devoid responses was plaintiff’s admission that defendant “took no inappropriate action in connection with its role in the transactions.”  Id.  The combination of these facts sufficiently met defendant’s moving burden.  Id. at 592. Due to plaintiff’s admission that defendants did not engage in any “inappropriate action,” plaintiff failed to raise a triable issue of fact based on evidence that potentially raised a reasonable inference of fraud.  Id. at 593. 
Defendant asserts Plaintiff “cannot establish” the existence of a manufacturing defect because (1) Plaintiff submitted factually devoid discovery responses to discovery requests seeking all facts and evidence in Plaintiff’s possession that established Defendant’s liability and (2)  Plaintiff cannot reasonably obtain evidence of the existence of a manufacturing defect, because the box was discarded.
As discussed above, the destruction of the box does not prevent Plaintiff from reasonably obtaining evidence of the existence of a manufacturing defect.  See Cooper, supra, 177 Cal.App.4th at 898, fn 7; Elmore, supra, 70 Cal.2d at 584.  The product itself is not necessarily required to establish a manufacturing defect.  Plaintiff may establish the existence of the manufacturing defect through circumstantial evidence.  Plaintiff’s expert’s opinion is not automatically inadmissible or speculative merely because the box was unavailable for expert testing or examination.  Cooper, supra, 177 Cal.App.4th at 898, fn 7; Stephen, supra, 134 Cal.App.4th at 1366.  
Moreover, Plaintiff presents evidence from which a reasonable trier of fact can find a manufacturing defect.  Plaintiff submits the expert declaration of Thomas Read, who concluded the existence of a manufacturing defect based on testing and examination of exemplars.  See Dec. of T. Read, ¶7.  Read opines that based on a review of the parties’ discovery response, exemplars of the box and the surveillance footage, one panel of the box was not properly folded and improper folding occurs during the manufacturing process, which makes the bottom of the box more likely to fail under reasonably anticipated and foreseeable conditions.  Id. at ¶¶4-8.  
While the Court finds Read’s opinion inadmissible, Defense expert’s opinion is inadmissible for the same reason.  To the extent Defendant asserts its expert opinion is admissible, Plaintiff’s expert opinion is equally admissible.  
Plaintiff’s discovery responses also do not meet the high threshold required to establish they were factually devoid.  Plaintiff submitted the video footage in response to the RFP seeking documentary evidence supporting Defendant’s liability for manufacturing defect.  Such a response is not “factually devoid,” nor is the statement that Defendant’s liability is based on the shipping of bottles “at unsafe pressures in unsafe bottles, and which were boxed in unsafe boxes unsuited to carry the type and weight of the merchandise in which they were sent.”  See Defendant’s SSUMF Nos. 35 and 36.  Both responses include facts, i.e. the boxes were unsafe, the boxes were unsafe because they were unsuited to carry the type and weight of merchandise, and the video itself was evidence.  
Triable issues of fact exist based on the competing declarations of Plaintiff’s and Defendant’s expert declarations.  Defense expert Singh fails to submit an opinion negating Plaintiff’s allegation that the box was defectively manufactured.  A manufacturing defect exists where the product “differs from the manufacturer's intended result or from other ostensibly identical units of the same product line.”  Barker, supra, 20 Cal.3d at 429.  Singh does not opine that the box in question was the same as identical units of the same product line, nor does he opine that the box in question was in line with the manufacturer’s intended result.  
Instead, Singh testifies that it is his “understanding” that the exemplars he examined were the same as the box in question without explaining the basis for that understanding.  Singh’s statement that the subject box was the same as the units he examined is conclusory and inadmissible.  
Singh also testifies that the box was produced in accordance with “industry standards” and that the boxes were “appropriate for their intended use as shipping containers.”  See Dec. of J. Singh, ¶¶7 and 9.  Such testimony does not address the definition of manufacturing defect, production different from the manufacturer’s intended result and/or from identical units of the same product line.  As discussed above, Singh’s testimony is being offered as “standard of care” evidence, as opposed to evidence pertaining to the specific tests applied to determine the existence of a manufacturing or design defect.  Singh’s testimony as presented is therefore irrelevant to Plaintiff’s claims.  See Kim, supra, 6 Cal.5th at 37.  
Defendant fails to submit any evidence negating Plaintiff’s allegation of manufacturing defect.  Defendant therefore fails to meet its burden as the moving party seeking adjudication of the manufacturing defect.  
Even if the Court overlooked the defects in Singh’s declaration, Plaintiff submits a competing expert declaration.  As discussed above, Plaintiff’s expert opines there was a manufacturing defect based on the folding process and that one of the flaps on the subject box was folded improperly, which would have led to the failure experienced by Plaintiff Luis.  See Dec. of T. Read, ¶¶4-8.  
However, the Court notes Plaintiff’s expert opinion suffers from the same defect as Defendant’s expert opinion. Neither expert explains the specific basis for their “understanding” as to the dimensions of the box involved in the accident.  
More fundamentally, the experts’ assumptions regarding the specifications of the box involved in the accident reflects a central factual dispute.  According to Defendant, the box involved in the accident was a box designed to hold 12, 12 oz. bottles and up to 50 lbs.  See Defendant’s SSUMF No. 1.  However, the only supporting evidence cited by Defendant for this fact is the declaration of expert Singh.  Singh was not a percipient witness and offers no foundational facts that would qualify him to testify as to the specifications of the box involved in the accident.  See Dec. of J. Singh, ¶6.  Singh merely states in a conclusory fashion that it is his “understanding” that the box involved was one designed to hold 12 bottles and up to 50 lbs.  Id.  Such testimony is inadmissible for lack of foundation and speculation.  As such, Defendant fails to establish that the box involved in the accident was one designed to hold 12, 12 oz. bottles and up to 50 lbs.  
Plaintiff also submits admissible evidence that the box was one that held 12 24 oz bottles and up to 35 lbs.  Plaintiff testified in deposition that he did not know the size of the box.  Plaintiff’s current declaration indicates that, after reviewing photos of the 12/12oz. box and the 12/24oz. box, the box involved in the accident was the 12/24oz. box.  See Dec. of L. Gerez, ¶¶3-5.  Plaintiff’s deposition testimony was not given after reviewing photos of the boxes, while Plaintiff’s declaration testimony was based on review of photos of the boxes.  As such, the deposition testimony is not irreconcilable with Plaintiff’s declaration testimony. 
Defendant argues the bill of lading submitted by Plaintiff indicates it was a 12/12oz. box, contradicting Plaintiff Luis’ testimony that the subject box was a 12/24oz box.  At best, this merely creates a triable issue of fact.  
Triable issues of fact exist as to whether the subject box suffered from a manufacturing defect. Defendant’s motion for adjudication of the manufacturing defect claim is therefore DENIED.  
III.  Triable issues of fact remain as to the loss of consortium claim
“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse. While appellant husband's injury incurred can neither be said to have been parasitic upon the wife’s cause of action nor can it be properly characterized as an injury to the marital unit as a whole, it stands or falls based on whether the spouse of the party alleging loss of consortium has suffered an actionable tortious injury.”  Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746. 
Plaintiff Olivia’s loss of consortium is dependent on Plaintiff Luis’ strict liability. Defendant moves for summary adjudication of the loss of consortium claim on grounds that the strict liability c/a is subject to adjudication.  However, the Court denies the request to adjudicate Plaintiff Luis’ strict liability c/a.  Therefore, Defendant’s motion for summary adjudication of the loss of consortium c/a is DENIED.  
IV.  Defendant’s Evidentiary Objections
To Read Declaration—SUSTAIN as to Objection Nos. 15-27
To Luis Gerez Declaration—OVERRULE   
As to the remaining objections, the Court finds they are immaterial to this ruling and declines to rule on them per CCP §437c(q).  
 
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