Judge Nick A. Dourbetas, Case 2018-00970710 2022-12-20 Tentative Ruling

Judge: Nick A. Dourbetas, Case: 2018-00970710, Date: 2022-12-20 Tentative Ruling

1. Motion for Summary Judgment and/or Adjudication

2. Motion for Summary Judgment and/or Adjudication

Motion No. 1:

Defendant Avco Corporation’s Motion for Summary Judgment and or Summary Adjudication is DENIED in its entirety. (See Code Civ. Proc. § 437c.)

Defendant fails to meet its initial burden to show the action has no merit. (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [same].)

The complaint alleges that defendant Avco knowingly misrepresented to the Federal Aviation Administration, and concealed or withheld from the Federal Aviation Administration, information that is material and relevant to the performance or the maintenance or operation of the engine system, e.g. the carburetor issues that led to multiple accidents. (See Compl. ¶¶ 32-39, 42-45, and 51-52.) The concealment claims are adequately alleged. None of the facts in defendant’s separate statement address these allegations, which are an exemption to the statute of repose in the General Aviation Revitalization Act of 1994 (“GARA”.) (See GARA, Section 2, subd. (b)(1).)

Where a party seeking summary judgment has not addressed all of the relevant allegations of the complaint and/or all theories of liability alleged, it is not entitled to summary judgment. (See Amerigas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 942 [“The motion for summary judgment should have been denied because it did not refute tenable pleaded theories”]; Miles Laboratories, Inc. v. Superior Court (1982) 133 Cal.App.3d 587, 593 [“A defendant moving for summary judgment has the burden of making a factual showing negating the existence of all causes of action on all theories embodied in the complaint and if he fails to discharge that burden, the motion must be denied”].) 

Because defendant Avco’s evidence fails to negate allegations that it either concealed or misrepresented to the FAA issues with the carburetor, Avco has failed to meet its initial evidentiary burden for the statute of repose defense of GARA.

A party seeking summary judgment/adjudication may meet its initial burden by affirmatively showing that a party currently lacks and cannot reasonably obtain, evidence in support of one of more elements of a claim. (Union Bank v. Superior Court, supra; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 847.) None of the facts set forth in the separate statement establish that plaintiff currently has no evidence and cannot reasonably obtain evidence establishing that any product designed, manufactured, or sold by Avco was defective.

Even if defendant had met its initial burden, plaintiff met his shifted burden to show triable issues of material fact. (See Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850.)

UMF 14, 43, 72, & 101. Plaintiff presents evidence establishing that Lycoming (which wholly owns Avco) repaired the crankshaft for the engine in June of 1993. (Kasparian Dec. Exh. 1.) This creates triable issue as to whether Avco had any contact with the engine since 1976.

UMF 17, 45, 75, & 103. The cited supporting evidence does not support the UMF. Paragraphs 6-8 of the Moran Dec. fail to establish that Avco did not test, Type Certify, authorize, or approve the carburetor. Paragraph 13-18 of the Knuteson declaration fails to establish that Avco did not test, Type Certify, authorize, or approve the carburetor. Thus, defendant’s evidence fails to establish that Avco did not test, Type Certify, authorize, or approve the carburetor.

Defendant’s request for judicial notice is granted. Judicial notice is limited to the existence of and filing of the records/pleadings, but not as to the truth of any facts or conclusions therein.

Plaintiff’s request for judicial notice is granted as to Items 1-20 and 26, and denied as to the balance. Judicial notice is limited to the existence of, filing of, and legal effects of the pleadings/records, but not as to the truth of any factual matters therein.

All evidentiary objections are overruled as being unnecessary to the court’s ruling. (See Code Civ. Proc. § 437c, subd. (q).).

The court declined to consider the reply separate statement as not being authorized by Calif. Code of Civil Procedure, section 437c

Motion No. 2:

Defendant Avco Corporation’s Motion for Summary Judgment and or Summary Adjudication is DENIED in its entirety. (See Code Civ. Proc. § 437c.)

Defendant fails to meet its initial burden to show the action and each noticed issue has no merit. (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [same].)

UMF 11, 36, & 61. Plaintiff presents evidence establishing that Lycoming (which wholly owns Avco) repaired the crankshaft for the engine in June of 1993. (Kasparian Dec. Exh. 1.) This creates triable issue as to whether Avco had any contact with the engine since 1976.

UMF 14, 39, & 64. Plaintiff presents evidence that Avco has a Type Certification for the subject engine with the FAA, that the carburetor was manufactured pursuant to a PMA, and that the PMA must comply with the design of the Type Certification for the engine, which includes the carburetor. Kasparian Decl., Exh. 1 at AVCO 0001468, Exh. 4, Exh. 5, Exh. 6, Exh. 7, Exh. 8, Exh. 10, Exh. 18.

This creates a triable issue as to whether Avco designed the Aftermarket Carburetor.

UMF 18, 43, & 71. (See discussion of UMF 14, et al above.) This creates a triable issue as to whether Avco designed the Kelly and CFS carburetor overhaul parts.

Defendant’s request for judicial notice is granted. Judicial notice is limited to the existence of and filing of the record, but not as to the truth of any facts or conclusions therein.

Plaintiff’s Request for judicial notice is granted as to Items 1-20 and 26, and denied as to the balance. Judicial notice is limited to the existence of, filing of, and legal effects of the pleadings/records, but not as to the truth of any factual matters therein.

All evidentiary objections are overruled as being unnecessary to the court’s ruling. (See Code Civ. Proc. § 437c, subd. (q).).

The court declined to consider the reply separate statement as not being authorized by Calif. Code of Civil Procedure, section 437c

Defendant is ordered to give notice of all the above.