Judge Frank M. Tavelman, Case Number: 20STCV11382, Date: 2023-10-06 Tentative Ruling

SUBMITTING ON THE TENTATIVE
Generally, the Court will post tentative rulings prior to a hearing; however, the Court does not always do so. If the parties wish to avoid a court appearance and submit on the tentative ruling, then all counsel must confer and agree to do so. Each counsel must then contact the Court and advise they have spoken to opposing counsel and will submit on the tentative. All counsel seeking to submit on a tentative must call Dept A no later than 8:45 a.m. on the hearing day or in lieu may indicate the party is submitting during calendar check-in. Notice of the ruling must be served as indicated in the tentative. If any party declines to submit on the tentative ruling, then all parties should appear at the hearing in person or remotely.

TENTATIVE RULING

OCTOBER 12, 2023

(Continued from OCTOBER 6, 2023)

Los Angeles Superior Court Case # 20STCV11382

The Court is not requesting oral argument on this matter. Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required. Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue. “The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412

Monico and Maria Ramirez (“Plaintiffs”) bring this action against American Honda Motor Company (“Honda”) and Galpin Motors, Inc. in connection with an incident involving Plaintiffs’ 2003 Honda Accord (“Subject Vehicle”). Plaintiffs allege the Subject Vehicle was defective and the defect caused unintended acceleration (“UA”) which resulted in Plaintiffs’ injuries. The Complaint contains three causes of action for (1) Negligence, (2) Strict Products Liability, and (3) Breach of Implied Warranty of Merchantability.

The Court notes Monico Ramirez passed away in June 2020 before responding to any discovery in the matter. As such, all discovery responses referred to in this ruling were made on behalf of Maria Ramirez.

Honda now moves for summary judgement on grounds that Plaintiffs have produced no evidence of a defect in the Subject Vehicle. Plaintiffs oppose the motion and Honda replies.

Honda’s Evidentiary Objections to the Declaration of Maria Ramirez are OVERRULED.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) C.C.P.¿§ 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to¿any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge¿v. County of Sacramento¿(1993) 12 Cal.App.4th 59, 67, citing¿FPI Development, Inc. v. Nakashima¿(1991) 231 Cal.App.3d 367, 381-382.)¿

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (C.C.P.¿§437c(p)(2);¿Scalf v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v.¿Paetkau¿(1998) 68 Cal.App.4th 151, 166.)¿

Honda contends that each cause of action turns on the existence of a defect in the Subject Vehicle. Honda argues that there exists no triable issue of fact as to whether a defect existed and whether it caused the incident which injured Plaintiffs.

Plaintiffs allege the defect in the Subject Vehicle was caused in part by a defect in the Powertrain Control Module (“PCM”) Programmed Fuel Injection (“PGM-FI”) software of the vehicle. (Compl. ¶ 9.) Plaintiffs also allege Honda failed to implement measures which would have prevented UA, including adequate computer and braking systems. (Id.) Plaintiffs allege that the airbags in the Subject Vehicle were defective in that the force with which they deployed was excessive. (Id.) Lastly, Plaintiffs allege that Honda issued a service bulletin with respect to the subject vehicle, showing they were aware of the potential for UA to occur. (Id. ¶ 10.)

Honda first argues that Plaintiffs have made no evidentiary showings that the Subject Vehicle was defective. Honda primarily argues that Plaintiffs’ factually devoid responses to unambiguous discovery reveals they have nothing more than conjecture to support their claims. Honda argues this inferred lack of evidence shifts the burden of proof on summary judgment to Plaintiffs.

When the plaintiff has had an adequate opportunity for discovery, the plaintiff's factually devoid responses to discovery may be relied on to show that one or more elements of the plaintiff's claim cannot be established for summary judgment purposes. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 592-593.) A moving party may rely on factually devoid discovery to shift the burden of proof. (CCP § 437c(o)(2).) A party’s is presumed to have responded to interrogatories “fully and truthfully” and to be as complete as the information available to the party allows. (C.C.P. § 2030(f)(1).) If a party has rendered a factually devoid answer in response, the court may presume an inability to acquire such evidence. (Union Bank supra, 31 Cal.App.4^th at 593.)

The Honda began to accelerate without any pressure being applied to the gas pedal and continued to accelerate and operate despite application of both the foot brake and the hand brake for the Honda, said defective condition of the Honda shall hereinafter be referred to as unintended acceleration. Plaintiffs are informed and believe, and thereon allege that at said time and place, the Honda was further defective in that the airbags deployed during the subject incident and the force of the airbags was excessive and not reasonable, causing Plaintiffs to suffer personal injuries, including cracked ribs, fracture of the patella, and head of the fifth metatarsal.

This response is in reference to Honda’s Form Interrogatories (“FROG”), specifically FROG No. 20.9. (Van Der Lancken Decl. Exhs. D & E.) FROG No. 20.9 asks Plaintiffs to state identify any information they have that a malfunction or defect in the vehicle contributed to the injuries sustained. (Id.) The Court finds that this information standing alone could show that Plaintiff has no factual information as to a defect in the vehicle. Where responses to interrogatories consists of boilerplate answers that restate the allegations “…the burden of production will almost certainly be shifted.” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107.)

However, circumstances surrounding the discovery lead to the opposite presumption. The burden on summary judgement cannot shift without stringent review of the direct, circumstantial, and inferential evidence. (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 83.) Courts have held that amended discovery responses containing new facts can negate the factually devoid nature of initial responses. (See Ganoe v. Metalclad Insulation Corp. (2014) 227 Cal.App.4th 1577 [holding that plaintiff’s amended responses identifying exposures to a manufacturer’s product containing asbestos was not factually devoid].)

Plaintiffs argue Honda has selectively picked discovery responses which support their argument and that Plaintiffs have since served supplemental responses to the interrogatories. Plaintiffs’ supplemental responses consist of a singular response to FROG 20.9 and were rendered on September 15, 2023. (Hoonian Decl., Exh. 11.) The response is as follows:

On information and belief, the responding party believes that the Honda subject to this lawsuit was defective, there is an issue with this vehicle in connection to the unintended acceleration and the airbag recall with excessive deployment. After the vehicle was for the first time after the incident on November 4, 2019, the throttle blade was stuck partially open. The throttle cable end at the throttle body was slack after the impact

Plaintiffs contend their supplemental response cures the factually devoid nature of their initial responses. The Court agrees that this supplemental response is not factually devoid as to a defect in the subject vehicle. Plaintiffs specifically identify a component of the Subject Vehicle they believe was defective. From the supplemental responses, the Court cannot infer that Plaintiffs have no ability to obtain further evidence as to a defect. It appears that a vehicle inspection has occurred from which more information is forthcoming. As such, the burden remains with Honda to show that no triable issue of fact exists as to causation.

In support of its motion, Honda offers the following evidence: Mrs. Ramirez stated at her deposition that she could not see the footwell of the driver’s side during the incident and could not attest to which pedal was being pressed. (Van Der Lancken Decl. ¶ 19, Exh. P.) Mrs. Ramirez does not recall the moments when the airbags activated, and she confirmed that no metal shards were produced by their deployment. (Id.)

The Court finds these facts are unsatisfactory of Honda’s initial burden. Mrs. Ramirez testimony that she could not see which pedal was being pressed and cannot remember the airbags deploying does not serve to negate the essential element of causation present in each cause of action. Mrs. Ramirez’s lack of ability to see the wheel well has no bearing on the triable issue that the UA was caused by a defect in the Vehicle. To carry its burden Honda must produce evidence indicating that there is no triable issue of fact as to a defect in the vehicle. Honda has presented no such evidence, instead arguing that Plaintiffs have not produced sufficient evidence. Honda presents no inspection report and no expert witness testifying as to the alleged UA defect.

In its reply, Honda argues that there is a presumption of driver negligence working against Plaintiffs. Honda cites to Harris v. Irish Truck Lines, Inc. (1974) 11 Cal.3d 373 in stating that a driver’s claim of defect is not evidence supporting an inference that defect occurred. The Court finds Harris to be inapposite to this case in several regards. First, Harris was concerned not with summary judgment, but with an appeal of a jury verdict. (Harris supra, 11 Cal.3d. at 375.) Second, the presumption of negligence concerned defendant’s claim that they were not negligent in driving the vehicle because it was defective. The defendants in Harris argued they were not required to rebut the presumption of their own negligence with evidence of defect in the vehicle. (Id. at 380.) Here, Honda’s burden is to show no triable issue of material fact. Further, Honda is seeking to use the presumption of negligence as a sword and not a shield, as it was used in Harris. Nothing in the holding of Harris suggests that there is a blanket presumption of user error or negligence in all cases involving automobile accidents.

Honda as the moving party has not shown that there is no triable issue of material fact.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

American Honda Motor Company and Galpin Motors, Inc.’s Motion for Summary Judgment came on regularly for hearing on October 6, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: