Judge: Michael E. Whitaker, Case: BC708667, Date: 2022-08-02 Tentative Ruling
Case Number: BC708667 Hearing Date: August 2, 2022 Dept: 32
PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.
TENTATIVE RULING
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DEPARTMENT |
32 |
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HEARING DATE |
July 29, 2022 – Continued to August 2, 2022 |
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CASE NUMBER |
BC708667 |
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MOTION |
Motion for Summary Judgment or, in the Alternative, Summary Adjudication |
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MOVING PARTY |
Defendant Landscape Structures, Inc. |
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OPPOSING PARTY |
Plaintiff Christian Ruiz, a minor, by and through his guardian ad litem, Christie Miro |
MOVING PAPERS:
OPPOSITION PAPERS:
REPLY PAPERS:
BACKGROUND
Plaintiff Christian Ruiz, a minor, by and through his guardian ad litem, Christie Miro sued defendant Landscape Structures, Inc. based on injuries Plaintiff alleges he sustained when he tripped, fell, and was then struck by a piece of moving playground equipment designed and manufactured by Defendant (“Rocket Ship”).
Defendant moves for summary judgment on Plaintiff’s claims for strict products liability and negligence against Defendant in the second amended complaint. In the alternative, Defendant moves for summary adjudication of eight issues: (1) Plaintiff cannot establish a design defect under the consumer expectation test; (2) Plaintiff cannot establish a design defect under the risk-benefit test; (3) the open and obvious danger rules bars Plaintiff’s failure to warn claim; (4) the warnings were adequate and in compliance with applicable standards; (5) Defendant was not negligent; (6) the Custom Sway Fun was ASTM and CPSC compliant and the time of shipment; (7) the rocket ship function was open and obvious; (8) Plaintiff’s inattentiveness or the lack of adult supervision caused his accident. Plaintiff opposes the motion.
LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.)
“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)
“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty . . . .” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (See id.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See Code Civ. Proc. § 437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See Code Civ. Proc. § 437c(o)(2); Union Bank 31 Cal.App.4th at 583.)
Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)
REQUEST FOR JUDICIAL NOTICE
Under Evidence Code section 451, “[j]udicial notice shall be
taken of the following: (a) The decisional, constitutional, and public
statutory law of this state and of the United States and the provisions of any
charter described in Section 3, 4, or 5 of Article XI of the California
Constitution…(f) Facts and propositions of generalized knowledge that are so
universally known that they cannot reasonably be the subject of dispute. ”
(Evid. Code, § 451, subds. (a), (f).)
Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)
The Court “shall take notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)
Here, the Court grants Defendant’s requests for judicial notice Nos. 1-3 per Evidence Code section 452, subdivision (d). Plaintiff’s opposition to Defendant’s requests for judicial notice is premised upon lack of notice as to whether Defendant requests the Court to take judicial notice of only the existence of the stated filings or also their contents. To that end, Plaintiff further argues that judicial notice may not be taken of the truth of the content of court records. Plaintiff is correct.
The Court notes that while the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in such documents is not necessarily subject to judicial notice. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569.) “A court cannot take judicial notice of the truth of hearsay statements just because they are part of a court record or file.” (Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865 [emphasis original].) Thus, in granting Defendant’s requests, the Court takes judicial notice of the specified filings but not the truth of their content.
EVIDENCE
With respect to Plaintiff’s evidentiary objections, the Court rules as follows:
Overruled
With respect to Defendant’s evidentiary objections, the Court rules as follows:
Overruled
Overruled
Overruled
Sustained as to lack of foundation.
Sustained as to hearsay.
Overruled
Overruled
Overruled
Overruled
Sustained in part as to Fig. 2-7 as to lack of foundation. Otherwise, overruled.
Overruled
Overruled
Sustained as to lack of foundation.
Overruled
Overruled
Overruled
Overruled.
Sustained as to lack of foundation.
Sustained as to lack of foundation.
DISCUSSION
Defendant moves for summary judgment, or in the alternative motion for summary adjudication, on Plaintiff’s first cause of action for Strict Products Liability – Design Defect, second cause of action for Strict Products Liability – Failure to warn, and forth cause of action for negligence. In the alternative, Defendant moves for summary adjudication of 8 issues related to the three causes of action.
LEGAL STANDARDS: STRICT PRODUCTS LIABILITY AND NEGLIGENCE
A defendant “may be held strictly liable for its product if the plaintiff was injured while using the product in a reasonably foreseeable way. In order for there to be strict liability, the product does not have to be unreasonably dangerous—just defective. Products liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn.” (Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1000, internal quotations and citations omitted.)
Strict liability for design defect may be established according to one of two alternative tests: the “consumer expectation test” and the “risk-benefit” test. (Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30.) The two tests are not mutually exclusive and both may be presented to the trier of fact in the same case depending on the facts and circumstances. (Demara v. Raymond Corp. (2017) 13 Cal.App.5th 545, 554.)
Under the “consumer expectation” test, a product is defective in design if it failed to perform as safely as an ordinary consumer would expect when using the product in an intended or reasonably foreseeable manner. (Barker v. Lull Engineering Co., Inc. (1978) 20 Cal.3d 413, 429-430.) “The ‘consumer expectation test’ permits a plaintiff to prove design defect by demonstrating that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1120.) A plaintiff proceeding under the “consumer expectation” test bears the burden to establish a prima facie case of the requisite causation and must produce evidence that the product failed to satisfy ordinary consumer expectations as to safety. (Barker, supra, 20 Cal.3d at p. 430.) When the product is one within the common experience of ordinary consumers, “it is generally sufficient if the plaintiff provides evidence concerning (1) his or her use of the product; (2) the circumstances surrounding the injury; and (3) the objective features of the product which are relevant to an evaluation of its safety.” (Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1232.)
Under the “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. (Kim v. Toyota Motor Corp., supra, 6 Cal.5th at p. 30.) When proceeding under the “risk-benefit” test, plaintiff need only establish a prima facie case of causation – i.e., evidence that permits the finder of fact to find a design feature of the product was a proximate cause of plaintiff’s injuries. Plaintiff is not required to demonstrate feasible alternative designs. The burden then shifts to defendant to establish that the benefits of its product design outweighed the design risks. (Barker, supra, 20 Cal.3d at p. 431.)
In failure to warn cases, a flawlessly designed or manufactured product becomes defective if the manufacturer fails to warn of the product’s dangerous propensities. (Finn v. G.D. Searle & Co. (1984) 35 Cal.3d 691, 699-700.) A plaintiff suing on a failure to warn strict liability theory must plead and prove that the product defendant either (1) actually knew of the risks involved at the time of manufacture and/or distribution, or (2) based on the state of scientific knowledge at the time manufacture and/or distribution, should have known of the risks. (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1110-1111.) Product defendants may not be held strictly liable for failure to warn of risks of which they were unaware and could not have been aware by the reasonable application of scientific knowledge available at the time of manufacture and/or distribution. (Id. at 1114.) A plaintiff is not required to prove the defendant knew or should have known of the exact injury risks associated with the use of the product, however. That the defendant knew or should have known of the risks generally, and failed to provide adequate warning of them is sufficient. (McKinney v. Revlon, Inc. (1992) 2 Cal.App.4th 602, 607-608.)
The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) A product manufacturer may be liable on a negligence theory for failure to undertake sufficient testing and inspection before distribution. (See Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1484-1485.)
BURDEN SHIFTING
“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); accord Doe v. Good Samaritan Hosp. (2018) 23 Cal.App.5th 653, 661 [“It is not until the defendant meets this burden that the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense”].)
Furthermore, “[t]he requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) Stated in a different way, “[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed together with a reference to the supporting evidence. The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action, hence the moving party's separate statement must address the material facts set forth in the complaint.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168 [cleaned up].) And “[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.)
Here, with respect to the first cause of action for design defect, Defendant argues the Rocket Ship functioned as an ordinary person would expect and the circumstances of Plaintiff’s accident were not reasonably foreseeable to Defendant when it designed the Rocket Ship. Defendant also argues that Plaintiff cannot establish that the benefits of the design of the Rocket Ship outweigh any inherent risks under the risk-benefit test.
With respect to the “consumer expectation test,” Defendant asserts the following Undisputed Material Facts (“UMF”) in support of its contentions: (1) Defendant designed and manufactured the Rocket Ship in accordance with the applicable ASTM standards and CPSC guidelines governing the safe design of playground equipment for children (UMF 2-4, 7, 10, 22, 25-26); (2) Defendant designed the Rocket Ship for children ages 2 through 12 years old, for use within an all-inclusive playground (UMF 5, 19, 23-24); and (3) in designing the Rocket Ship for this age range, Defendant complied with the relevant industry standards governing the safe design of playground equipment for playgrounds and the Rocket Ship was deemed to be in compliance upon installation (UMF 2-4, 7, 10, 22, 25-26); (4) Defendant’s compliance was reasonable because the CPSC guidelines and ASTM standards are codified into California law pursuant to Health and Safety Code section 115725 (UMF 9, 22).
Defendant further argues that the particular facts of Plaintiff’s incident present a unique set of circumstances that were unforeseeable at the time Defendant designed the Rocket Ship. According to Defendant, (1) Plaintiff had played on the playground, including the Rocket Ship in the hours leading up to the incident (UMF 30-31, 44); (2) Plaintiff had run through the playground, including near the Rocket Ship before the incident occurred (UMF 31, 44); (3) earlier that day, Plaintiff’s mother had observed him running through the playground, but did not supervise him while he was playing (UMF 43-44.) Immediately before he fell, Plaintiff was running near the Rocket Ship, alongside another child, with whom his legs got tangled up, causing him to fall on the ground. (UMF 32); (4) Plaintiff did not fall underneath the Rocket Ship (UMF 33-35); (5) Plaintiff and the other child were unsupervised while they were running through the playground (UMF 42-43); (6) Plaintiff then fell on the ground on his bottom, and then attempted to prop himself up while both feet were flat on the ground (UMF 37); (7) as Plaintiff was attempting to push himself upward, the Rocket Ship, which was in forward motion, made contact with his left knee at precisely the same time Plaintiff had bent it to get up. (UMF 38-39)
With respect to the “risk-benefit test,” Defendant argues: (1) the benefit of the design of the Rocket Ship is that it assists children ages 2 through 12 years old in developing motor, cognitive, and social/emotional skills, while at the same time complying with the ADA regulations, ASTM standards and CPSC guidelines for playground child safety (UMF 2, 5, 7-8, 10, 22, 25-26); (2) under the applicable ASTM and CPSC guidelines in effect at the time of the accident, there is no requirement that any safety device such as a barricade or guardrail be installed in the Rocket Ship’s use zone, as such barriers could increase the risk of injury by encroaching upon safety use zones around the equipment as required by ASTM standards (UMF 19); and (3) Plaintiff’s incident is the first of its kind, following the sale of more than 900 Sway Fun units over 15 years and likely thousands of uses (UMF 11-12).
In opposition, Plaintiff offers the following Additional Undisputed Material Facts (“AUMF”) concerning the circumstances surrounding the injury: (1) before the incident, Plaintiff was running around the playground with his sister and classmates (AUMF, 36); (2) the children ran around the rocket ship between its ramp and a blue beam that was affixed to a jungle gym apparatus (AUMF, 37); (3) as Plaintiff was running, his feet tangled with another child’s and Plaintiff fell underneath the nose of the Rocket Ship (AUMF, 38); (4) while Plaintiff began to stand up, other children using the Rocket Ship continued to sway the Rocket Ship by pushing it from its rear (AUMF, 39); (5) the Rocket Ship then swayed on a downward arc and struck Plaintiff’s knee causing Plaintiff’s claimed injuries (AUMF 40).
Concerning the objective features of the product relevant to an evaluation of its safety, Plaintiff argues that (1) when in motion, the Rocket Ship generates significant energy with force capable of crushing a child’s head and torso (AUMF, 10); (2) the crush and shear locations on the Rocket Ship, violate the CSPC Public Playground Safety Handbook/Publication 325, which provides that “Anything that could crush or shear limbs should not be accessible to children on a playground” (AUMF, 12); (3) Defendant relied on the testing for the differently shaped, 800 lb. lighter, “Sway Fun” apparatus, when preparing the custom design of the Rocket Ship, and failed to run any test on the Rocket Ship (AUMF, 14-15); (4) each of the tests produced by Defendant predate the commission of the Rocket Ship, which was ordered on May 4, 2017, and the only IPEMA certificates of compliance produced by Defendant were for the Sway Fun, and not the Rocket Ship (AUMF, 18-19; see also Plaintiff’s opposition to Defendant’s UMFs 8, 10, 12, 17, 19-22.)
Defendant’s evidence fails to make a prima facie showing that there is no triable issue of material fact as to whether Defendant may be found strictly liable for a design defect under either the “consumer expectation” or “risk-benefit” test. Specifically, Plaintiff’s evidence raises triable issues of fact as to whether the Rocket Ship failed to satisfy ordinary consumer expectations as to safety, and whether a design feature of the Rocket Ship, namely the presence of crush and shear points, was a proximate cause of Plaintiff’s injuries.
Further, in support of its arguments with respect to the second cause of action for strict products liability – failure to warn, fourth cause of action for negligence, and 8 issues for summary adjudication, Defendant proffers a number of UMFs related to the design, testing, and compliance of the Sway Fun to assert that the Rocket Ship was equally compliant with relevant testing and safety standards. (See UMFs 8, 10, 12, 17, 19-22.) But as Plaintiff points out, the design of Sway Fun and that of the Rocket Ship differ to a significant degree, including that the Rocket Ship is 800 lbs. heavier than the Sway Fun. (See Declaration of Jaime Goldstein, Exhibits 2, 3, 6-8.) More importantly, Defendant represents that it only relied on the testing and safety certifications of the Sway Fun in its design and manufacture of the Rocket Ship, and conducted no relevant testing of the Rocket Ship. (See UMFs 8, 10, 12, 17, 19-22; Declaration of Jaime Goldstein, Exhibits 1, 2, 3, 6-8, 11.) Accordingly, the Court finds Defendant has not met its burden to make a prima facie showing that there is no triable issue of material fact as to whether Defendant may be found liable for strict product liability under a failure to warn theory and for negligence, or that there are no triable issues of material fact as to Defendant’s 8 issues presented for summary adjudication. In other words, the Court finds there are triable issues of material fact as to Defendants UMFs 10, 19-22, and the Court cannot determine that Defendant is entitled to judgment, or adjudication of issues, as a matter of law.
In short, Defendant failed to meet its burden of production and persuasion, and thus, the Court denies Defendant’s motion for summary judgment and summary adjudication of issues.
The Clerk of the Court shall provide notice of the Court’s ruling.