Judge John J. Kralik, Case Number: 22STCV31797, Date: 2023-10-06 Tentative Ruling

Plaintiffs Jesus Siordia, Irene Fombona, James Siordia, Deisi Martinez, Fernando Avilez, Angela Savanna Gonzalez (a minor, by and through her guardian ad litem Deisi Martinez) (collectively, “Plaintiffs”) allege that on May 27, 2021, an explosion occurred at a facility operated by National Technical Systems, Inc. (“NTS”), which is located in Fullerton. They allege that the explosion caused the death of NTS employee Jesse Siordia (“Decedent”). They allege Decedent was the son of Jesus Siordia and Irene Fombona; the brother of James Siordia and Deisi Martinez; and the uncle to Angela Savanna Gonzalez and Fernando Avilez. Plaintiffs allege they are entitled to wrongful death damages and right of survivorship damages.

Plaintiffs allege that the location was owned by Defendants ERSLAND Training Center Corporation (“ERSLAND”) and ETCR, Inc. (“ETCR”). On May 27, 2021, NTS was providing its facility to Defendant United Aeronautical Corporation (“UAC”), which was testing a C-130 Modular Airborne Fire Fighting System (“MAFFS Part”). Plaintiffs allege that UAC was in charge of testing the MAFFS Part, while NTS supplied the power and testing chamber, and passively monitored the test for radio emissions. Defendants GXAerospace, Inc., Parker Hannifin Corporation, Motion & Flow Control Products, Inc., and Norton Sales, Inc. were all manufacturers and/or distributors of various component parts that comprised the MAFFS part. Defendant Mario Nino is alleged to be the contractor for UAC employed by Defendant Triad Systems International who was present at the explosion and in charge of setting up the testing.

The complaint, filed on September 28, 2022, alleges causes of action for: (1) negligence; (2) strict products liability; (3) strict liability for ultrahazardous activities; (4) breach of warranties; (5) breach of contract; (6) right of survivorship; and (7) punitive damages.

On January 11, 2023, Plaintiff filed an Amendment to Complaint naming Doe 1 as JCC California Properties, LLC (“JCC CP”).

On May 22, 2023, by Plaintiff’s oral request, Defendant ERSLAND Training Center Corporation was dismissed without prejudice.

On October 17, 2023, the Court signed the parties’ Stipulation and Order wherein, in part, Plaintiffs agreed to dismiss the punitive damages claims against Motion & Flow Control Products, Inc. without prejudice and dismiss the claims of Plaintiffs Deisi Martinez and James Siordia for a waiver of costs.

On December 23, 2022, Defendant/Cross-Complainant GXAerospace, Inc. filed a cross-complaint against Cross-Defendant UAC for: (1) equitable indemnity; (2) express indemnity; (3) implied indemnity; (4) contribution; and (5) declaratory relief.

On December 28, 2022, Defendant/Cross-Complainant UAC filed a cross-complaint against Roes 1-30 for: (1) total equitable indemnity; (2) comparative indemnity; (3) equitable apportionment of fault; (4) contribution; (5) declaratory relief; and (6) express indemnity.

On January 17, 2023, Defendant/Cross-Complainant Norton Sales, Inc. filed a cross-complaint against Roes 1-30 for: (1) total equitable indemnity; (2) comparative indemnity; (3) equitable apportionment of fault; (4) contribution; (5) declaratory relief; and (6) express indemnity.

On January 31, 2023, Defendants/Cross-Complainants Tri-Tech Systems, Inc. dba Triad Systems International (“Triad”) and Mario Nino (“Nino”) filed a cross-complaint against UAC for: (1) equitable indemnity; (2) implied indemnity; (3) express indemnity; (4) declaratory relief; and (5) contribution.

On April 3, 2023, Defendant/Cross-Complainant JCC California Properties, LLC field a cross-complaint against Roes 1-25 for: (1) equitable indemnity; (2) apportionment; (3) contribution; and (4) declaratory relief: equitable apportionment contribution and indemnification.

On November 27, 2023, Triad System International and Mario Nino filed a cross-complaint against Moes 1-50 for: (1) equitable indemnity; (2) declaratory relief; (3) contribution; (4) apportionment; and (5) express indemnity.

On July 26, 2023, Zurich American Insurance Company (“Zurich”) and Interstate Fire & Casualty Company (“Interstate”) filed a complaint in Case No. 23BBCV01696 against UAC, GXAerospace, Parker Hannifin Corporation, Motion & Flow Control Products, Inc., Norton Sales, Inc., and Triad for: (1) negligence; (2) strict products liability; and (3) strict liability for ultrahazardous activities. Zurich/Interstate allege that they insured James Campbell Company LLC, the owner of the building. On September 13, 2023, Zurich and Interstate dismissed without prejudice the 2^nd and 3^rd causes of action against UAC only.

On August 4, 2023, Westchester Surplus Lines Insurance Company (“Westchester”) filed a complaint in Case No. 23BBCV01790 against UAC, GXAerospace, Parker Hannifin Corporation, Motion & Flow Control Products, Inc., Norton Sales, Inc., Triad, and Nino for: (1) negligence; (2) strict products liability; (3) strict liability for ultrahazardous activities; (4) breach of warranties; and (5) breach of contract. Westchester alleges that NTS was insured by Westchester. On September 14, 2023, Westchester dismissed without prejudice the 4^th and 5^th causes of action as to Triad and Nino only.

On September 29, 2023, Triad and Nino filed a cross-complaint against Roes 1-50 in the 23BBCV01790 case for: (1) equitable indemnity; (2) declaratory relief; (3) contribution; and (4) apportionment.

On September 13, 2023, the Westchester and Zurich/Interstate actions were related to this action. This action (22STCV31797) is the lead case.

On October 27, 2023, the Court consolidated the Westchester case with this action.

On October 12, 2023, Plaintiff-in-Intervention NTS Technical Systems, Inc. (“NTS”) filed a complaint-in-intervention against UAC, GXAerospace, Parker Hannifin Corporation (“Parker”), Motion and Flow Control Products, Inc. (“M&F”), Norton Sales, Inc., Triad, and Nino for: (1) negligence; and (2) strict products liability.

UAC demurs to the 2^nd cause of action for strict products liability, arguing that it fails to allege sufficient facts to constitute a cause of action against UAC because the incident, as alleged in the complaint, did not involve a “product” or a “consumer,” nor was there a commercial sale or market placement of the item referenced in the complaint.

“[A] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. [Citation.] The elements of this cause of action are as follows: (1) the product is placed on the market; (2) there is knowledge that it will be used without inspection for defect; (3) the product proves to be defective; and (4) the defect causes injury to a human.” (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 415 [internal quotation marks and citations omitted].)

In the general allegations, NTS alleges that UAC was testing a Mobile Airborne Firefighting System (“MAFFS”) unit. (Complaint-in-Intervention, ¶17.) NTS alleges that it supplied power and the testing chamber for UAC’s testing of the MAFFS and passively monitored the test. (Id., ¶18.) NTS alleges that GX, Parker, Motion, and Norton each manufactured and/or distributed component parts of the MAFFS and/or provided test design and engineering recommendations to UAC and/or participated in the assembly of the MAFFS components being tested on the date of the accident. (Id., ¶19.) NTS alleges that a component part of the MAFFS failed during the test while the MAFFS was highly pressured, which ultimately caused the explosion and ensuing fire. (Id., ¶20.) In the 2^nd cause of action, NTS alleges that UAC, GX, Parker, Motion, and Norton designed, manufactured, distributed, and sold the MAFFS and/or its component parts. (Id., ¶29.) NTS alleges that at the time the MAFFS and/or its component parts were being tested, inherent defects existed that rendered it unreasonably dangerous. (Id., ¶30.) NTS alleges that the unreasonably dangerous inherent defects in the MAFFS and/or its parts included: manufacturing/design defects, failure to utilize feasible alternative designs that were safer and not inherently defective, lack of effective warnings and/or emergency procedures to provide instruction in the event of failure; failure to warn or advise of prior failures/malfunctions and identified defects in the MAFFS and parts, absence of an adequate quality control system, and the MAFFS and/or its component parts were otherwise defective. (Id., ¶31.) NTS alleges that UAC, GX, Parker, Motion, and Norton knew or should have known that the MAFFS/parts would be used without inspection for defects. (Id., ¶32.) It alleges that the unreasonably inherent defects and defective design of the MAFFS/parts was a substantial factor in causing the explosion and resultant damage. (Id., ¶33.)

UAC argues that the Complaint-in-Intervention does not allege that the MAFFS was commercially sold or placed in the market. It argues that the MAFFS was never sold, marketed, or placed into the stream of commerce by UAC—rather the MAFFS (as alleged in the Complaint-in-Intervention) was being tested and inspected for defects to ensure compliance.

In opposition, NTS argues that the crux of a strict liability cause of action is that there was a defect in the defendant’s product that caused the plaintiff’s injury. NTS relies on Rawling v. D.M. Oliver, Inc. (1979) 97 Cal.App.3d 890, arguing that no commercial sale or consumer transaction is necessary to impose strict liability. Rawling considered a machine that was claimed to be a special piece of equipment fabricated in 1969, which was not mass-produced and sold to the general public. (Rawling, supra, 97 Cal.App.3d at 897.) The Court of Appeal found that even though it was not a mass-produced product or a typical product produced by defendant (or defendant’s predecessor), the manufacturer could still be held strictly liable for defects within the product.

Here, the difference with Rawling is that the MAFFS is not alleged to be advertised, marketed, sold, or placed in the stream of commerce at all. Rather, it appears to have been a prototype that was being designed and tested at the facility when the explosion incident occurred. The Complaint-in-Intervention alleges that the MAFFS was being tested, which implies that the parties were not sure whether the MAFFS would work as it was intended to work, what warnings were required to be given, if it was in compliance with certain requirements, etc. Based on the allegations, it can be implied that the MAFFS was not a finished product that was ready to be marketed or sold (or used for its intended purpose) at the time it was being tested. Further, there are no allegations that NTS purchased the MAFFS part or that it was the intended recipient of the MAFFS; rather, NTS alleges that it provided the testing chamber/space for UAC to test whether the MAFFS part worked.[1]

UAC also argues that the MAFFS was not a “product” for the purposes of strict liability. “The basis of strict liability is the furnishing of defective goods.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1624.) A products liability claimant must meet the condition precedent to successfully maintain this claim: they “must show that the object or instrumentality claimed to be defective was in fact a ‘product’ as defined or contemplated by the Restatement of Torts, legislation or case law. Whether or not a product was defectively designed or manufactured is a factual issue to be determined by the trier of fact. However, whether or not the subject object or instrumentality is a ‘product’ is a question of law for the trial court…” (Id. at 1626.) “A product is a physical article which results from a manufacturing process and is ultimately delivered to a consumer. A defect in the article even if initially latent is ultimately objectively measurable.” (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 345 [finding that the provision of a patient room in a medical facility is a service and not a product].) As discussed above, while the MAFFS may have been in the process of becoming a product for the ultimate delivery to a consumer, the MAFFS (as alleged) was still in the testing phase and does not appear to have been marketed for the sale to the general public or a specific consumer.

Based on the allegations of the Complaint-in-Intervention, the demurrer to the 2^nd cause of action is sustained. As this is NTS’s first attempt at the pleading, the Court will allow leave to amend.

Defendant-in-Intervention United Aeronautical Corporation’s demurrer to the 2^nd cause of action in the complaint-in-intervention is sustained with 20 days leave to amend.

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[1] The Court notes that NTS argues that it need not be a “consumer” as strict products liability may extend beyond immediate purchasers to reasonably foreseeable persons who were injured by the defect. (See Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 586 [stating that strict products liability not only extends to the consumer or user, but also to reasonably foreseeable persons such as bystanders who may be injured by the defect].) NTS also argues that sale of the product is not necessary for imposing products liability; rather, as stated in Stein v. Southern Cal. Edison Co. (1992) 7 Cal.App.4th 565, 571, the object must be placed on the market, knowing that it is to be used without inspection for defects. The Court finds merit to these arguments that NTS need not be the ultimate consumer or purchaser of the MAFFS part or that the MAFFS had to be sold in order for UAC to be subject to strict products liability. Nevertheless, there are still other issues with the strict products liability cause of action as discussed in this order, such that this cause of action is not adequately pled.

Superior Court of California

County of Los Angeles

Department B