Judge John J. Kralik, Case 20STCV17746 2022-12-09 Tentative Ruling

Plaintiff Michael Leasher (“Plaintiff”) alleges that he was injured on July 5, 2019 at his house when the top of the pool filter exploded and struck him in the head. Defendant Everclean Pool & Spa, Inc. (“Everclean”) is alleged to have inspected and maintained the pool filter and equipment at the subject location that injured Plaintiff. Defendant Crystal Clear Pool and Spa, Inc. (“Crystal Clear’) is alleged to be the company that sold, installed, designed, configured, maintained, and inspected the pump, plumbing, and pool filter location and on/off switch at the subject location. Defendant Leslie’s Poolmart, Inc. dba Leslie’s Pool Supplies (“Leslie’s) is alleged to be the company that sold, installed, designed, configured, maintained, inspected, and placed into the stream of commerce the pool filter and other equipment. Defendant Pentair Water Pool & Spa, Inc. (“Pentair”) is alleged to have designed, manufactured, assembled, inspected, repaired, maintained, installed, endorsed, drafted, tested, franchised, supplied, sold, leased, distributed, marketed, instructed, warned, and placed into the stream of commerce the pool filter.

Relevant to the motion before the Court is the 1^st cause of action, which is the only cause of action alleged against Everclean. In the 1^st cause of action, Plaintiff alleges that Everclean, Crystal Clear, and Leslie’s performed pool equipment installation services, inspection, maintenance, supervision, repairs, modifications and/or risk assessment, and that sold, installed, designed, configured, maintained, and inspected the pool filter system that injured Plaintiff. (FAC, ¶10.) Plaintiff alleges that Defendants owed Plaintiff a reasonable duty of care to inspect, maintain, supervise, repair, modify, assess, install, design, configure, maintain, and inspect the pool filter system. (Id., ¶11.) Plaintiff alleges Defendants breached their duty and thereby caused Plaintiff’s injuries. (Id., ¶¶12-15.)

The first amended complaint (“FAC”), filed July 27, 2021, alleges causes of action for: (1) negligence against Everclean, Crystal Clear, and Leslie’s; (2) strict products liability against Pentair and Leslie’s; and (3) negligent products liability against Pentair and Leslie’s.

On December 17, 2020, Everclean filed a cross-complaint against Pentair and Crystal Clear. The cross-complaint alleges causes of action for: (1) equitable indemnity; (2) equitable apportionment; (3) contribution; (4) declaratory relief; and (5) indemnity.

On May 10, 2022, Everclean filed a motion for summary judgment when the case was initially assigned to Department 31 of the Spring Street Courthouse.

On September 29, 2022, Everclean filed an amended motion for summary judgment again after the case was assigned to this Department B in the Burbank Courthouse. In the amended motion, Everclean states that it filed an amended motion because its owner, Gabriel Dominguez, amended his declaration to clarify the events surrounding the cleaning of the pool filter. The Court will consider this later-filed motion as the operative moving papers.[1] Everclean moves for summary judgment as to Plaintiff’s 1^st cause of action for negligence on the grounds that there is no triable issue of material fact as there is no evidence of a breach of duty by Everclean or causation between Everclean’s alleged braeched and the subject incident.

On December 1, 2022, Everclean filed reply papers. On December 2, 2022, Everclean filed a response to Plaintiff’s objections.

Everclean requests judicial notice of Exhibit A: Plaintiff’s FAC filed in this action on July 27, 2021. The request is granted. (Evid. Code, § 452(d).)

With the opposition papers, Plaintiff submitted evidentiary objections to Everclean’s evidence in support of the motion. However, the evidentiary objections are directed to the statements in Everclean’s separate statement, specifically Everclean’s Fact Nos. 7, 8, 12-28, 36-38, 40, 41, 50, 51, and 53-59. Objections to facts stated in the separate statement are not proper. Rather, written objections must be made to specific evidence. (CRC Rule 3.1354(b).) Thus, the objections are overruled. To the extent that Plaintiff disputes the evidence, the Court will consider Plaintiff’s responsive separate statement filed with the opposition papers.

With the reply papers, Everclean submitted evidentiary objections to Plaintiff’s evidence in support of the opposition.

Everclean moves for summary judgment on the sole cause of action for negligence alleged against it in Plaintiff’s FAC, arguing that: (1) Plaintiff cannot prove that Everclean breached any duty of care owed to Plaintiff; (2) Plaintiff cannot prove that Everclean’s maintenance of the pool filter in any way caused the incident because the evidence will show that the subject incident was caused by Plaintiff’s failure to heed warnings and instructions on the product while reassembling the pool filter; and (3) Plaintiff’s misuse of the product by failing to heed the provided instructions while reassembling the subject filter is a complete affirmative defense to the 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.)

Everclean argues that Plaintiff cannot establish that it breached a duty of care to Plaintiff because it did not manufacture, sell, or install the pool filter that caused Plaintiff’s injury. Everclean argues that it cleaned the pool weekly and cleaned the pool filter every 6 months.

The relevant facts provided by Everclean are as follows: Crystal Clear installed the subject pool filter. (Everclean Fact 3.) On April 10, 2017, Leslie’s sold the subject pool filter, which was a Pentair Clean & Clear Plus 320 Cartridge Filter, directly to Plaintiff. (Id. at 6.) Pentair manufactured the subject filter. (Id. at 9.)

The subject filter is a “split shell filter,” such that the shell of the filter is comprised of 2 pieces—a lid and base—which are held together by a stainless-steel clamp band. (Id. at 10.) Like other pool filters, the subject filter operates under pressure generated by a pump that pushes water through the filter. (Id. at 11.) The subject filter came equipped with instructions and warnings and Pentair provided multiple warnings and instructions relating to the hazard of a filter exploding due to entrapped air. (Id. at 12-13.) Both on the filter itself and in the product manual, Pentair warns users that the subject filter operates under pressure and of the hazard of the pool filter lid forcibly separating from the base of the filter, and it also details steps on how to safely reassemble the filter and restart the pump. (Id. at 14-15.) The pressure within the subject filter only presents a danger if air is trapped in the filter because air is compressible and pressurized air acts like a spring that can cause the lid of the filter to forcibly separate. (Id. at 16-17.) The owner’s manual for the subject filter warns that the lid of the filter can forcibly blow off if the clamp is not properly secured after reassembly and the manual air relief valve is not open, or if, after reassembly, the clamp band is not properly secured and the manual air relief valve is not open. (Id. at 26-27.) The warning label for the subject filter was present at all relevant times before and during the incident. (Id. at 58.)

Everclean services Plaintiff’s pool and pool equipment beginning in September 2018, which included cleaning the pool every Monday and cleaning the filter every 6 months. (Id.at 29, 34, 35.) Everclean’s owner, Gabriel Dominguez, is familiar with pool filters manufactured by Pentair, has read the manuals for the filters multiple times, and is familiar with the Pentair filter installed at Plaintiff’s residence. (Id. at 32-33.) Prior to the subject incident, Everclean last cleaned Plaintiff’s pool filter on March 5, 2019, which was 4 months prior to the July 5, 2019 incident. (Id. at 36.) Despite Everclean’s bi-annual filter cleaning services, Plaintiff cleaned the subject filter himself. (Id. at 37-38.)[2] Ginny Davis (Plaintiff’s wife) would sometimes assist Plaintiff with reassembly of the pool filter. (Id. at 39.)

On July 5, 2019, Plaintiff turned on the pump that provided pressure to the subject filter and the top of the filter blew off, hitting him in the head, in essentially the same manner as displayed on the graphic warning label. (Id. at 42.)[3] The subject incident was not the first time the lid had blown off the subject filter, as the filter had blown off at least 3 times during the week leading up to the incident. (Id. at 43-44.) The incident occurred shortly after Plaintiff reassembled the subject filter after the last time the lid had blown off. (Id. at 45.) Ginny Davis had assisted Plaintiff in the process of holding the clamp band of the filter in place for Plaintiff to tighten the nut on the end of the clamp band bolt and she witnessed Plaintiff adjust the clamp of the filter and “jiggle” the valve on top of the filter before switching on the pool pump. (Id. at 46-48.) Once Plaintiff turned on the pool pump, the lid of the pool filter blew off, striking Plaintiff in the head. (Id. at 49.) After the incident, Gabriel Dominguez sent his son, Roger Dominguez, for scheduled pool services and Roger Dominguez reported that he could not find the nut used to tighten the filter clamp band. (Id. at 50.) Two days after the incident, Gabriel Dominguez inspected and reassembled the subject filter, but could not find the missing clamp band. (Id. at 52-53.) Gabriel Dominguez did not observe any problems with the subject pool filter when he reassembled it after the incident. (Id. at 54.)

There are two types of negligence that Plaintiff complains of: malfeasance and nonfeasance. Plaintiff argues that Everclean failed to properly clean the pool and filter based on pressure readings, which led to the lid blowing off (malfeasance). Alternatively, Plaintiff argues that Everclean failed to inform Plaintiff that the filter location was too close to the power switch in violation of the Pentair manual (nonfeasance).

Everclean argues that it did not manufacture, sell, or install the pool filter which caused Plaintiff’s injury. These facts are undisputed by Plaintiff. Further, Everclean argues that it was scheduled to perform a filter cleaning every 6 months—it performed a filter cleaning on March 5, 2019, such that the next filter cleaning would have been scheduled around September 5, 2019. It is also undisputed that Plaintiff had performed cleaning of the filter on his own, the warning label for the subject filter was present at all relevant times, and the filter itself and the product manual included warnings about injuries. (Everclean Fact 14-15, 37-38, 58.) Everclean points out that since the March 5, 2019 filter cleaning it performed, it did not touch the filter again until after the incident; rather, Plaintiff was the only person to remove the pool filter and reassemble between the time Everclean cleaned the filter on March 5, 2019 to the time of the subject incident on July 5, 2019.

In opposition, Plaintiff argues that Everclean and Plaintiff had a special (contractual) relationship, such that Everclean owed Plaintiff a duty. Plaintiff relies on Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1204, wherein the Court of Appeal stated: “A special relationship may arise out of a contract in which a repair company agrees for a fee to keep a piece of equipment in repair, perform all work necessary for the safety and maintenance of the equipment, and make periodic inspections of the equipment.” In Seo, the defendant gate repair company (retained to undertake occasional as-needed repairs to a sliding gate) moved for summary judgment on the ground that it owed no duty to the subtenant to advise the owner of the property of design defects of the gate, unrelated to the repairs undertaken by the gate repair company. The Court of Appeal found that the “gate repair company had not negligently repaired the gate, had not failed to make any requested repairs, had not undertaken any repairs related to the alleged design defect, had not contracted with the owner of the property to inspect and maintain the gate, and had not voluntarily undertaken a systematic inspection of the sliding gate. We conclude the gate repair company did not owe a duty to the subtenant to warn the owner of the property of design defects unrelated to the repairs. We affirm.” (Id. at 1197-98.)

Further, in Seo, the Court of Appeal found that there was no written contract between the owner of the company and the gate repair company and that the company only performed work on an as-needed basis. (Id. at 1204.) The Court of Appeal declined to find an implied contract between the property owner and the defendant to regularly inspect and maintain the gate. (Id.) The Court also did not find that the defendant voluntarily assumed the owner’s duty to maintain the gate in a safe condition or voluntarily undertook a systemic inspection of the gate. (Id. at 1205.) Lastly, the Court declined to adopt a new category of a special relationship creating a duty of repairers to third parties—in other words, the Court of Appeal declined to accept the plaintiff’s argument that an independent contractor repairer has a duty to a third party to warn the owner of design defects of equipment repaired, unrelated to the repairs made. (Id.) The Court of Appeal stated:

Imposition of a duty on repairers to warn of design defects or incur liability to third parties injured by those defects would impose a substantial additional burden on repairers and those who hire them. No repairer could be hired simply to repair a single defect in a mechanical device without the repairer potentially incurring liability to anyone who might use the device. The cost of simple repairs would increase significantly, as every repairer would factor into the charge for a service call the additional cost of inspection, advisement, insurance, and liability. An automobile mechanic could not perform a simple oil change without a complete inspection for any design defect of the automobile and the preparation of a complete advisement of defects to the owner. A plumber could not fix a leaky faucet without inspecting the entire fixture and advising the owner of any ways in which the fixture might be defective. It is possible that repairs of certain high-risk mechanical devices could not be obtained in light of the increased potential for liability on the part of the repairer. Thus, the creation of a new category of special relationship for repairers and third parties injured by the equipment in order to create a duty for nonfeasance does not appear to be based on sound public policy.

Plaintiff argues that Crystal Clear installed the plumbing and equipment (including the filter) in April 2013, poured a concrete pad for the new equipment, and determined how and where the filter and pump would be located in relation to each other and to the on/off power switch that controlled the pool equipment. (Pl.’s AMF 3-5.) Plaintiff argues that Crystal Clear installed Pentair filter approximately 2 feet away from the on/off power switch and less than 6 inches away from a wall adjacent to the filter. (Id. at 6-7.) According to the installation manual for the 2013 filter installed by Pentair and the 2017 filter (at issue), the filter had to be at least 5 feet away from the power switch for safety reasons and that the filter must be installed at least 6 inches away from the wall. (Id. at 8-11.) Crystal Clear’s design and layout of the equipment in 2013 dictated where the 2017 replacement filter would be installed. (Id. at 12.) Plaintiff states: “The location of the filter next to the on/off switch was a proximate cause of Mr. Leasher’s injuries.” (Id. at 13.) Plaintiff states that from 2013 to September 2018, he maintained the pool and pool equipment. (Id. at 14.) Thereafter, Everclean cleaned the pool and pool filter, Gabriel Dominguez was familiar with the Pentair filter and filter manual as he had read it several times, and Roger Dominguez had also read the manual. (Id. at 15, 24-25, 27.) Gabriel Dominguez testified at his deposition that when he worked for Swimcon (prior to starting Everclean), if he saw a pool filter that had been installed too close to the on/off switch, he would notify the owner that the installation was done improperly. (Gabriel Dominguez Depo. at p.22.) He testified that he had never recommended to Plaintiff that he should move the on/off switch away from the filter’s location. (Id. at 39; Pl.’s AMF 28.)

Here, there is no written contractual agreement between the parties. As such, the specific parameters of the parties’ oral contract or implied contract is not provided. It appears that there was an understanding that Everclean would come weekly to clean the pool and come biannually to clean the filter. According to Plaintiff’s additional material facts (“Pl.’s AMF”), the Leashers hired Everclean to perform weekly inspections, maintenance, and repairs to the pool, pool equipment, and filter. (Pl.’s AMF 15, 19-22.) The extent of Everclean’s obligations with the filter appear to have been its occasional cleaning of the filter and possibly making necessary repairs. (According to his deposition, Gabriel Dominguez stated that his services included cleaning pools, checking chemicals, and vacuuming pools. [Gabriel Dominguez Depo. at p.22].) However, Plaintiff has not raised any triable issue of material fact that Everclean owed a duty to inform Plaintiff that Crystal Clear had improperly installed the pool equipment and filter.

The Court notes that the manual does not warn of bodily damage as a result of the location of the filter; rather, installation instructions with respect to the placement of the filter appear to have been provided so that there was space for routine checks and cleaning. According to the manual’s instructions on installing the filter, the install of electrical controls (on/off switch, etc.) was to be at least 5 feet from the filter, which “permits one to stand clear of the filter during system start up.” (Mot. at Ex. M [Filter Manual at p.2 at §2.].) There are additional instructions about the placement of the filter to permit sufficient clearance for visual verifications, to remove the filter lid for cleaning, and to direct water drainage to avoid electrical damage. (Id. at §§ 3-5.) The manual then warns about the maximum working pressure of the filter and that any excess pressure could cause the lid to blow off, which may result in severe injury. (Id. at § 8.) Based on the manual, the pressure accumulating in the filter could cause bodily injury.

Thus, Plaintiff’s argument regarding whether Everclean had a duty to warn Plaintiff about the placement of the filter near the on/off switch appears to be a moot point.[4]

Although nonfeasance on the part of Everclean is not present, there are triable issues of material fact regarding whether Everclean failed to perform its duties in cleaning and maintaining the filter, and thereby whether it breached those duties.

The Court finds there is at least a triable issue of material fact regarding Everclean’s duty and the scope of services in cleaning, maintaining, and repairing Plaintiff’s pool filter. According to Everclean, it cleaned the filter every 6 months. Everclean claims it checked the pool filter pressure each week, but did not record the readings. (Pl.’s AMF 23.) According to Ms. Osinski, the frequency of filter cleaning should not be based on time, but rather pressure differential, which takes into account usage patterns, pollution, the presence of algae, the amount and type of debris that enters a pool, such that some filters need only be cleaned once or twice a year while other filters must be cleaned more often. (Osinski Decl., ¶29.)

Here, there is at least a triable issue of material fact regarding whether Everclean breached its duties in properly inspecting, maintaining, and repairing the pool, pool equipment. and pool filter (and its pressure levels), as opposed to merely cleaning the filter every 6 months (which was not based on pressure levels). Plaintiff argues that Everclean should have at least informed the Leashers about any issues with the filter on July 1, 2019 (the regularly scheduled pool maintenance on Monday before the July 5, 2019 incident). There is a triable issue of material fact regarding whether Everclean properly maintained and inspected the pool and pool equipment (which included the filter) during its weekly pool cleaning.

As such, the motion for summary judgment on the negligence cause of action is denied on the basis that there is a triable issue of material fact on the issue of duty and breach.

Next, Everclean argues that Plaintiff cannot establish that it caused Plaintiff’s injury because Plaintiff was the last person to handle the filter, disassemble it, and put it back together—which was only moments before Plaintiff was injured by the lid blowing off and hitting him. Everclean argues that had Plaintiff followed the warning and instructions when working on the pool filter, including hazards of pressure vessels, then Plaintiff’s accident would not have occurred. It also argues that it was not reasonably foreseeable that Plaintiff would have tried to fix the filter issue himself.

While following a manual is the best way to ensure that the filter is being cleaned, reassembled, and installed properly, Everclean’s argument that Plaintiff must have mishandled the filter is speculative. At most, Everclean argues that the clamp band nut was missing after the accident for a period of time and provides the declaration of expert Brice Johnson for his opinion that the clamp band could not have come off if it was properly screwed in place. (Everclean Fact 51; Brice Johnson Decl., ¶¶5-10, 18.) However, Plaintiff’s expert, Ms. Osinski, disputes this statement, opining that the instructions are subject to subjective interpretation and there is nothing to tell the consumer that the band is properly sealed, reassembled, and tightened, or when the clamp needs to be re-tensioned, as there is nothing on the pump to prevent the user from turning on the filter if it is not properly assembled or sealed. (Osinski Decl., ¶33.)

Further, Everclean was aware that there were issues with the filter but had not undertaken steps to fix the filter during its routine weekly pool maintenance. For example, Ginny Davis texted Gabriel Dominguez on June 10, 2019 at 11:00 a.m., asking how often the filter was cleaned because Plaintiff had found them to be dirty and informing him that the pool had a lot of algae and that Plaintiff cleaned the filter on June 9, 2019 but ran out of lube. At 9:07 p.m., she texted him again asking for his plan because they had noticed the filter was not put back together and there were issues. (Mot., Exs. K and L.) In response, Gabriel Dominguez responded that his son had gone to the property on June 10, 2019, but he could not find the filter belt nut. (Id.) Ginny Davis testified that prior to the incident, Everclean had taken equipment apart but had not reassembled it and that she had complained to Everclean about the condition of the pool and equipment. (Pl.’s AMF 33-34.) Thus, it appears that the issue with the filter belt nut was known to Everclean at least a month before the subject incident and that though Roger Dominguez came for pool maintenance on July 1, 2019, the filter cap was either not replaced or had blown off again.

There is at least a triable issue of material fact regarding whether Everclean’s failure to maintain, correct, repair, and/or replace the filter caused Plaintiff’s injury. As such, the motion for summary judgment is denied.

Defendant Everclean Pool & Spa, Inc.’s motion for summary judgment on the 1^st cause of action in the First Amended Complaint is denied.

[1] With the opposition papers, Plaintiff objected to the amended notice and motion for summary judgment served on September 29, 2022 on the grounds that it was not timely served. Although the amended motion was not served at least 75 days before the hearing, Everclean had served the prior version of the motion months in advance. Further, it appears that Plaintiff’s opposition responds to Everclean’s amended motion; thus, there appears to have been no prejudice. As such, the objection to the amended notice and motion for summary judgment is overruled.

[2] On June 9, 2019, Ginny Davis (Plaintiff’s wife) sent a text to Gabriel Dominguez, stating that Plaintiff noticed that the filter was dirty. (Mot., Ex. K.) On June 10, 2019, Ginny Davis sent another text to Gabriel Dominguez stating that “Mike cleaned the filters yesterday but the top is more sealed on the filter tank, he ran out of lub[e].” (Mot., Ex. L.) On pages 24-25 of her deposition testimony, Ginny Davis states that she did not recall Plaintiff returning to any activities with the filter system since hiring Everclean. (Opp. at Ex. D [Ginny Davis Depo. at pp.24-25].) She also testified that while she did not recall sending the text but had no reason to believe that she did not send the text. (Mot., Ex. G [Ginny Davis Depo. at pp.124-125].)

[3] The manual includes at least 4 warnings with the same illustration:

[4] The Court notes that Plaintiff provides the expert declaration of Alison Osinski stating that the filter should be at least 5 feet away from the on/off switch so that one may stand clear of the filter tank when starting the pump (see Osinski Decl., ¶¶13, 34), but essentially opines that the faulty design of the filter and the high pressure that can build up are the causes for bodily injury (id. at ¶¶19-21). (Opp. at Ex. A [Alison Osinski Declaration]; see also Ex. B [David Rondinone Decl., ¶9].)

Superior Court of California

County of Los Angeles

Department B