This case was last updated from Los Angeles County Superior Courts on 06/11/2019 at 10:01:31 (UTC).

JUANITA HERNANDEZ ET AL VS HOTPOINT ELECTRIC HEATING COMPANY

Case Summary

On 05/30/2017 JUANITA HERNANDEZ filed a Personal Injury - Other Product Liability lawsuit against HOTPOINT ELECTRIC HEATING COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DAVID SOTELO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3245

  • Filing Date:

    05/30/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Product Liability

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DAVID SOTELO

 

Party Details

Plaintiffs, Petitioners and Guardian Ad Litems

HERNANDEZ EPIFANIA

HERNANDEZ JUANITA

HERNANDEZ ANTONIO

Defendants, Respondents and Cross Defendants

DOE STOVES 1-10

HOTPOINT ELECTRIC HEATING COMPANY

POMPEIAN INC

DOES 41-100 INCLUSIVE

DOE STORE RETAILERS 21-30

NORTHGATE GONZALEZ MARKETS

DOE OLIVE OIL MANUFACTURERS/DISTRIBUTERS

SILVERLAKE FUNDING LLC PROPERTIES

DOE PROPERTY OWNERS AND MANAGERS 31-40

ROES 1 THROUGH 20

SILVERLAKE FUNDING II LLC

MOES 1 TO 50

NORTHGATE GONZALEZ LLC

Defendants, Respondents and Cross Plaintiffs

POMPEIAN INC

DOE OLIVE OIL MANUFACTURERS/DISTRIBUTERS

Minors

HERNANDEZ KAREN

HERNANDEZ ASHLEY

Attorney/Law Firm Details

Plaintiff, Petitioner and Minor Attorneys

DODGE KAREN R. ESQ

BUTLER TERRENCE LEROY ESQ.

DODGE KAREN REGINA

Defendant and Respondent Attorneys

MARK R. WEINER & ASSOCIATES

BOOSER MICHAEL CRAIG ESQ.

D'ORO FRANK JOSEPH JR

Cross Plaintiff Attorneys

PEARCE CHARLES WARDLAW

GRGURIC SHERRY LYNN

 

Court Documents

NOTICE OF MOTION FOR ORDER COMPELLING VERIFIED RESPONSES TO FORM INTERROGATORIES AND FOR AN ORDER IMPOSING MONETARY SANCTIONS; ETC.

2/6/2018: NOTICE OF MOTION FOR ORDER COMPELLING VERIFIED RESPONSES TO FORM INTERROGATORIES AND FOR AN ORDER IMPOSING MONETARY SANCTIONS; ETC.

NOTICE OF MOTION FOR ORDER COMPELLING VERIFIED RESPONSES TO SPECIAL INTERROGATORIES AND FOR AN ORDER IMPOSING MONETARY SANCTIONS; ETC.

2/6/2018: NOTICE OF MOTION FOR ORDER COMPELLING VERIFIED RESPONSES TO SPECIAL INTERROGATORIES AND FOR AN ORDER IMPOSING MONETARY SANCTIONS; ETC.

Unknown

3/1/2018: Unknown

Unknown

3/6/2018: Unknown

SUBSTITUTION OF ATTORNEY CIVIL WITHOUT COURT ORDER

4/12/2018: SUBSTITUTION OF ATTORNEY CIVIL WITHOUT COURT ORDER

INDEX OF EVIDENTIARY EXHIBITS IN SUPPORT OF POMPEIAN, INC.'S MOTION FOR SUMMARY JUDGMENT

8/17/2018: INDEX OF EVIDENTIARY EXHIBITS IN SUPPORT OF POMPEIAN, INC.'S MOTION FOR SUMMARY JUDGMENT

NOTICE OF ERRATA REGARDING POMPEIAN, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

8/22/2018: NOTICE OF ERRATA REGARDING POMPEIAN, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

NORTHGATE GONZALEZ, LLC'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SHERRY L. GRGURIC IN SUPPORT THEREOF

8/22/2018: NORTHGATE GONZALEZ, LLC'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SHERRY L. GRGURIC IN SUPPORT THEREOF

Opposition

10/18/2018: Opposition

Reply

10/18/2018: Reply

Opposition

10/23/2018: Opposition

Proof of Service (not Summons and Complaint)

10/23/2018: Proof of Service (not Summons and Complaint)

Other -

11/1/2018: Other -

Ex Parte Application

1/9/2019: Ex Parte Application

Opposition

1/10/2019: Opposition

Proof of Personal Service

2/13/2019: Proof of Personal Service

Order

4/17/2019: Order

Minute Order

10/30/2017: Minute Order

80 More Documents Available

 

Docket Entries

  • 05/31/2019
  • Notice of Posting of Jury Fees; Filed by Epifania Hernandez (Plaintiff); Juanita Hernandez (Plaintiff); Karen Hernandez (Plaintiff)

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  • 04/17/2019
  • at 08:30 AM in Department 40; Hearing on Motion - Other (contesting good faith settlement) - Held - Motion Denied

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  • 04/17/2019
  • Order (ORDER DETERMING THAT SETTLEMENT WAS IN GOOD FAITH AND ORDER OF DISMISSAL OF CROSS-COMPLAINT); Filed by Silverlake Funding LLC Properties (Defendant)

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  • 04/17/2019
  • Certificate of Mailing for (Minute Order (Hearing on Motion - Other contesting good faith settlement) of 04/17/2019); Filed by Clerk

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  • 04/17/2019
  • Minute Order ( (Hearing on Motion - Other contesting good faith settlement)); Filed by Clerk

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  • 04/12/2019
  • Answer; Filed by Ciuti International, Inc. Erroneously Sued As Doe Olive Oil Manufacturers/Distributers (Defendant)

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  • 04/12/2019
  • Request for Dismissal; Filed by Pompeian Inc (Cross-Complainant)

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  • 04/12/2019
  • Cross-Complaint; Filed by Ciuti International, Inc. Erroneously Sued As Doe Olive Oil Manufacturers/Distributers (Cross-Complainant)

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  • 04/10/2019
  • Reply ( to Opposition to Motion to Contest Good Faith Settlement); Filed by Northgate Gonzalez, LLC Erroneously Sued As Northgate Gonzalez Markets (Defendant)

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  • 04/02/2019
  • Opposition ( TO MOTION TO CONTEST GOOD FAITH SETTLEMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF HEATHER BALE); Filed by Silverlake Funding LLC Properties (Defendant)

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149 More Docket Entries
  • 06/07/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 06/07/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 05/30/2017
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM - CIVIL

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  • 05/30/2017
  • Application ; Filed by Plaintiff/Petitioner

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  • 05/30/2017
  • Application ; Filed by Plaintiff/Petitioner

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  • 05/30/2017
  • Application ; Filed by Plaintiff/Petitioner

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  • 05/30/2017
  • Complaint; Filed by Antonio Hernandez (Plaintiff); Juanita Hernandez (Plaintiff)

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  • 05/30/2017
  • COMPLAINT FOR DAMAGES: 1. STRICT PRODUCTS LIABILITY; ETC

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  • 05/30/2017
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM - CIVIL

    Read MoreRead Less
  • 05/30/2017
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM - CIVIL

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Tentative Rulings

Case Number: BC663245    Hearing Date: January 28, 2021    Dept: 40

MOVING PARTY: Plaintiffs Juanita Hernandez, Ashley Hernandez, and Karen Hernandez, Minors, By and Through Their Guardian Ad Litem, Epifania Hernandez and Epifania Hernandez and Antonio Hernandez

OPPOSITION: Defendant Northgate Gonzalez, LLC;

Defendant Ciuti International, Inc.

On May 30, 2017, Plaintiffs filed a Complaint against defendants alleging causes of action for:

  1. Strict Products Liability;

  2. Breach of Warranty;

  3. Negligence;

  4. Premises Liability;

  5. Negligence;

  6. Negligent Infliction of Emotional Distress.

On October 27, 2020, the Court granted Ciuti’s Motion for Summary Judgment. On December 21, 2020, Plaintiffs filed the instant motion for new trial. Ciuti and Northgate have each filed an opposition, which the Court will address jointly.

Objections: Northgate objects and Ciuti joins the objections to statements made in declarations provided by Plaintiffs’ experts and one plaintiff.

Northgate’s objections to Xu’s declaration is SUSTAINED.

Northgate’s objections to Dodge’s declaration is SUSTAINED

Northgate’s objections to Epifania’s declaration are OVERRULED.

Northgate’s objections to Schemel’s declaration is SUSTAINED

Standard: Pursuant to Code of Civil Procedure section 657, a motion for new trial may be granted if there is any:

“(1) Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

(2) Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

(3) Accident or surprise, which ordinary prudence could not have guarded against.

(4) Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

(5) Excessive or inadequate damages.

(6) Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

(7) Error in law, occurring at the trial and excepted to by the party making the application.”

(Code Civ. Proc., § 657.)

Plaintiffs’ motion is made per all of CCP § 657(1), (4), (6), and (7.) A motion for a new trial can be brought based on entry of judgment following a summary judgment motion. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.

Plaintiffs’ motion is based upon claims that the Court’s Order constituted misconduct and that it was an abuse of discretion. Plaintiff also submits or proposes new evidence has been discovered which constitutes the basis for a new trial.

Irregularity in the Proceedings: Although “[n]o accurate classification of such irregularities can be made, it is said that an overt act of the trial court, jury, or adverse party, violative of the right to a fair and impartial trial, amounting to misconduct, may be regarded as an irregularity.” Gray v. Robinson (1939) 33 Cal.App.2d 177, 182.

Plaintiffs fail to explain what “overt act” the trial court committed that violated their right to a fair trial. Plaintiffs state that “in its ruling on Defendant’s Motion, the court, not really defendant Ciuti, has addressed an issue (defectively designed bottle) that Plaintiff Counsel considered settled, if not stipulated to.” (Mtn., 4:17-19.)

The Court disagrees that it raised the issue out of nowhere as Ciuti’s motion argued it. (See Ciuti’s MSJ 8:26-28; “Plaintiff has not, and cannot, articulate a specific manufacturing defect. Plaintiff has only proffered a boiler-plate allegation that the Olive Oil was in a glass bottle rather than plastic.”) If Plaintiff alleged that Ciuti should not have used a glass bottle, then it follows that there must have been a defect with the glass bottle.

Plaintiffs failed to address the glass bottle’s defect in their opposition to the summary judgment motion.

Abuse of Discretion: Plaintiffs state that there was an abuse of discretion because “counsel, a near expert in defectively designed containers of volatile fluids, was understandably lulled into a sense that the clearly defective bottle was not at issue in this Summary Adjudication, and therefore not fully addressed.” As indicated above, Defendant raised the issue in their moving papers, and the Court did not abuse its discretion in examining that issue.

Newly Discovered Evidence: “The essential elements which must be established are (1) that the evidence is newly discovered; (2) that reasonable diligence has been exercised in its discovery and production; and (3) that the evidence is material to the movant’s case.” Horowitz v. Noble

Plaintiffs state that in opposition to the motion for summary judgment, they provided evidence that olive oil would ignite if their stove were set to high.

Plaintiffs have now provided a declaration from David Xu, their expert. (Decl. Xu, ¶¶ 2, 3.) Xu states that he conducted tests in which he dropped oil bottles from a drop height of 40 inches above a stove to the stone countertop. (Id. at ¶ 16.) Xu declares that in the drop tests, Ciuti’s 1-liter glass bottle always shattered. (Id. at ¶ 17.) Xu stated that smaller glass bottles and plastic bottles from other brands survived the drop test. (Id. at ¶¶ 20-22.) Finally, Xu declares that “most American olive oil bottles are now sold in plastic bottles as opposed to glass bottles. This is based up on my survey of local supermarkets as well as online websites such as Amazon, Walmart, and Target.” (Id. at ¶ 25.)

Plaintiff also now provides the declaration of expert Glen Stevick, who discusses warnings. Stevick declares that Ciuti’s bottle did not have a warning when purchased and that its current warning is not adequate. (Decl. Stevick, ¶ 23, 24.) Stevick states that Ciuti should have included a warning “letting consumers know that it is highly flammable, can cause severe injury, including how to store the glass bottle properly” and a word like “CAUTION.” (Id. at ¶¶ 28, 29.) Stevick states that a warning would be helpful if it contained the graphic of a flame, description of hazard, and instructions for complying with the warning. (Id. at ¶¶ 30-32.)

Finally, Epifania Hernandez (Juanita’s mother) states that it is her habit and custom to review product labels. Her children read any label containing a warning in red, flames, crossbones, or other such symbols. (Decl. Hernandez, ¶ 12.) Epifania Hernandez states that if the Ciuti bottle contained warnings, she would have stored it in a lower cabinet. (Id. at ¶ 13.)

The Court finds that Plaintiffs have not established that they were reasonably diligent in producing Xu’s and Stevick’s declarations. Plaintiffs had access to Xu’s information prior to the hearing on the summary judgment motion. (See Decl. Xu, ¶ 13; stating that he has been involved in the case since August 2017.) Stevick was retained at least as of August 2019. Moreover, no discovery has occurred in this matter since March 2020. Thus, Plaintiffs also had access to Stevick’s information prior to the hearing on the summary judgment motion.

The Court notes that it disagrees with Ciuti’s argument that Epifania’s declaration is a sham pleading. Admittedly, at her deposition, Epifania only recalled that the bottle had a black label and did not remember if it had any writing on it. But Epifania’s recollection about the lack of warnings on the glass bottle could have been refreshed by subsequent and review of documents. Therefore, Epifania’s current declaration is not a sham pleading. The Court will address the issue of warnings in the upcoming sections.

Insufficiency of the Evidence: “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (CCP § 657(7).)

Plaintiffs argue that they meet their initial burden of proof by demonstrating that the glass bottle was used in a reasonably foreseeable way and that the burden shifted to defendants, who failed to meet their burden. Plaintiffs state that the burden shifted to Ciuti to prove that Juanita’s injury resulted from product misuse. Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 678. Plaintiffs also state that the Court’s tentative ruling is wrong regarding misuses. The tentative ruling states: “The olive oil bottle did not cause the incident while being used in its intended manner, i.e., cooking. Instead, the cause was Juanita accidentally dropping the bottle onto the stove upon which it shattered, spilled its contents, and caused a fireball.” Plaintiffs assert that it was reasonably foreseeable that olive oil would be stored close to a stove and that if it shattered on it, it would cause a fireball. The Court respectfully disagrees that Juanita inadvertently dropping the bottle is an intended or reasonably foreseeable use of a glass bottle of olive oil. The duty of a manufacturer is to design their product not so that it is accident-proof but so that it is safe for the use for which it was intended. Varas v. Barco Mfg. Co.

Regarding the failure to warn claim, the Court found no causal link between the lack of a warning and Juanita’s injury. The only warning provided by Plaintiffs was a standard one that stated: “Caution: Oil will burn if overheated. Do not leave unattended while heating. If oil smokes, reduce heat. If oil catches fire, turn off heat and cover pot until cool. Do not put water on hot or flaming oil. Do not pour hot oil back into this container.” Presently, Epifania declares that if she had known that oil was flammable, she would not have stored it above the stove. (Decl. Hernandez, ¶ 13.) However, oil being flammable is an obvious danger known to anyone who has ever used cooking oil. Epifania did not require a warning to be aware of this fact.

Against the Law: As discussed in the preceding section, even under Plaintiffs’ formulation of the law, the Court finds that their claim would not survive. Juanita knocking over or dropping the bottle--stored by her mother over and above the stovetop--while Juanita was reaching for cupcakes, is not an intended or reasonably foreseeable use.

Error in Law: This subsection of CCP 657 requires an error at trial and the objection by the moving party. It is not applicable as there was no trial and no objection. (CCP § 657(7).)

Conclusion: Plaintiffs’ Motion for a New Trial is DENIED.

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