1. Sunbeam Products, Inc. and Walmart Inc.’s Motion in Opposition to Defendant/Cross-Complainant Claremont Lincoln University’s Application for Determination of Good Faith Settlement is DENIED.

2. Defendant VNA Hospice and Palliative Care of Southern California’s (erroneously sued and served as VNA Hospice and Palliative Care of Southern California) Motion for Summary Judgment is DENIED.

3. Defendants Sunbeam Products, Inc.’s and Walmart Inc.’s Motion for Summary Judgment is GRANTED.

Background[1]  

Plaintiff Kelly Schwalbach (“Plaintiff”) alleges as follows:

Plaintiff is visually impaired. Plaintiff volunteered her time with VNA Hospice and Palliative Care of Southern California (“VNA”), including at the VNA’s office in Claremont Lincoln University’s (“CLU”) building located at 150 W. 1^st Street in Claremont (“subject property”). The elevator at the subject property is only accessible with a key at every level. On or about October 6, 2016, Plaintiff was directed by VNA to attend a meeting on the second floor of the subject property. A VNA representative used a key to access the elevator and transport Plaintiff to the meeting. When the meeting ended, Plaintiff was advised that there were no keys available, such that the elevator was inaccessible. Plaintiff was forced to use the stairs; in doing so, Plaintiff fell and sustained injuries. Plaintiff subsequently purchased an electric heating pad product, which caused significant burns to her skin.

On December 3, 2018, CLA filed a cross-complaint, asserting causes of action against VNA and Roes 1-20 for:

1.                  Indemnification

2.                  Apportionment of Fault

3.                  Declaratory Relief

On December 28, 2018, VNA filed a cross-complaint, asserting causes of action against CLA and Foes 1-50 for:

1.                  Equitable Indemnity

2.                  Apportionment of Fault

3.                  Declaratory Relief

On April 4, 2019, this case was transferred from Department 3 of the Personal Injury Court to this instant department.

On August 30, 2019, Plaintiff filed a Third Amended Complaint (“TAC”), asserting causes of action against VNA, CLA, Sunbeam Products, Inc. (“Sunbeam”), Walmart, Inc. (“Walmart”) and Does 1-50 for:

1.                  Premises Liability

2.                  Violations of Civil Code Sections 51, et seq.

3.                  Strict Product Liability

On October 18, 2019, Plaintiff dismissed her second cause of action, with prejudice.

On February 3, 2021, CLU filed two “Amendment[s] to Cross-Complaint,” wherein Sunbeam was named in lieu of Roe 1 and Walmart was named in lieu of Roe 2.

On April 5, 2022, CLU filed a “Notice of Settlement.”

A Trial Setting Conference is set for September 21, 2022.

1.         Motion to Contest Good Faith Settlement

Legal Standard

“[A] settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order. The application shall indicate the settling parties, and the basis, terms, and amount of the settlement. The notice, application, and proposed order shall be given by certified mail, return receipt requested, or by personal service. Proof of service shall be filed with the court. Within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal service, a nonsettling party may file a notice of motion to contest the good faith of the settlement. If none of the nonsettling parties files a motion within 25 days of mailing of the notice, application, and proposed order, or within 20 days of personal service, the court may approve the settlement. . .” (Code Civ. Proc., § 877.6, subd. (a)(2).)

Discussion

Sunbeam and Walmart move the court for an order denying a good faith determination for the settlement reached between Plaintiff and CLU.

The motion is denied as untimely pursuant to Code of Civil Procedure § 877.6, subdivision (a)(2). Ecourt records reflect that on April 5, 2022, CLU concurrently filed a “Notice of Settlement” and an “Application for Determination of Good Faith Settlement Under Code of Civil Procedure Section 877.6(a)(2);” the latter document was served that day via certified mail—return receipt requested. On May 2, 2022, Sunbeam and Walmart filed and served via email an “Opposition to Defendant/Cross-Complainant’s Application for Determination of Good Faith Settlement.” On May 25, 2022, Sunbeam and Walmart filed and served the instant motion via mail.

Code of Civil Procedure § 877.6, subdivision (a)(2) permits the filing of a motion to contest the good faith of the settlement “within 25 days of mailing of the notice, application, and proposed order.” Here, the 25-day deadline to file a motion to contest under § 877.6, subdivision (a)(2) expired Monday, May 2, 2022. The “opposition” to the application filed May 2, 2022 was not a motion under § 877.6, subdivision (a)(2), as Sunbeam and Walmart concede (Motion, 5:22-6:2 [“The Moving Defendants timely contested the determination of good faith by filing an Opposition to Claremont’s Application for Determination of Good Faith Settlement on May 2, 2022. [ ] However, pursuant to Code of Civil Procedure § 877.6(a)(2), the correct procedure was to file a noticed Motion to Oppose the Application. Due to personnel changes within the office representing the Moving Defendants, counsel did not realize this mistake until May 24, 2022, at which time the proper noticed motion was promptly prepared and filed”].)

2.         VNA’s Motion for Summary Judgment

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4^th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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 a judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; Code Civ. Proc., § 437c, subd. (c).)

Discussion

VNA moves for an order granting summary judgment in its favor and against Plaintiff. VNA also moves for an order granting summary judgment in its favor and against CLU on CLU’s indemnity cross-complaint.

Evidentiary Objections

The court declines to rule on Plaintiff’s evidentiary objections as immaterial to the disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

Merits

On August 30, 2019, Plaintiff filed her TAC, asserting causes of action against VNA for Premises Liability and Violations of Civil Code Sections 51, et seq. On October 18, 2019, Plaintiff dismissed this latter cause of action. Plaintiff has alleged, in relevant part, that, she is visually impaired (TAC, ¶ 12); that she volunteered her time with VNA including at VNA’s office in CLU’s building located at 150 W. 1^st Street in Claremont (“subject property”) (Id., ¶ 13); that the elevator at the subject property is only accessible with a key at every level (Id., ¶ 16); that, on or about October 6, 2016, she was directed by VNA to attend a meeting on the second floor of CLU’s building (Id., ¶ 20); that, upon her arrival at the subject property, a VNA representative used a key to access the elevator and transport her up to the second floor (Id.); that, at all relevant times, VNA had actual and constructive knowledge of Plaintiff’s disabilities, including her visual impairment, and the impact these disabilities had on her mobility, particularly on stairs (Id., ¶ 21); that, at the conclusion of the meeting, VNA advised her that there were no keys available, such that the elevator was inaccessible, even though VNA knew Plaintiff suffered from disabilities rendering her unable to safely navigate the staircase (Id., ¶ 22); that she had no choice but to attempt to navigate the staircase at the subject property in order to exit the premises (Id., ¶ 23); and that she fell and sustained injuries while attempting to navigate the staircase (Id.)

Plaintiff has alleged that defendants, including VNA, created a dangerous condition of the subject property by allowing the elevator to be only accessible with a key at every level. (Id., ¶ 17.) Plaintiff has alleged that defendants, including VNA, knew or reasonably should have known that a person with visual impairments, like Plaintiff, could gain access to upper levels of the subject property but then be left stranded thereon if a key was unavailable to access the elevator to go down. (Id.) Plaintiff has alleged that defendants, including VNA, should have corrected, moved, and/or warned Plaintiff of the existence of the condition. (Id., ¶ 19.) Plaintiff has also alleged that the staircase at the northwest portion of the subject property is a dangerous condition and does not comply with applicable building and safety codes. (Id., ¶ 18.)

VNA contends that Plaintiff’s premises liability cause of action asserted against it fails because

(1) Plaintiff has no evidence that the staircase was in an unsafe or dangerous condition, (2) VNA

did not own the subject property nor was it responsible for the maintenance of same and because

(3) VNA did not owe a duty to Plaintiff to provide elevator access.

Civil Code § 1714, subdivision (a) states that “[e]veryone is responsible, not only for the result

of his or her willful acts, but also for an injury occasioned to another by his or her want of

ordinary care or skill in the management of his or her property . . .” “The elements of a cause of

action for premises liability are the same as those for negligence: Duty, breach, causation, and

damages.” (Castellon v. U.S. Bancorp. (2013) 220 Cal.App.4th 994, 998 [citations omitted].)

“Those who own, possess, or control property generally have a duty to exercise ordinary care in

managing the property in order to avoid exposing others to an unreasonable risk of harm.”

(Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) “The threshold element

of a cause of action for negligence is the existence of a duty to use due care. . . [w]hether this

essential prerequisite to a negligent cause of action has been satisfied in a particular case is a

question of law to be resolved by the court.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370,

397.)

“Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest had a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.” (Rowland v. Christian (1968) 69 Cal.2d 108, 119.)

VNA concedes that Plaintiff is blind (VNA’s Separate Statement of Undisputed Material Facts (“DUMF”) No. 5), that on October of 2016 Plaintiff was a volunteer at VNA (DUMF No. 7), that on October 6, 2016, Plaintiff attended a meeting for the volunteers at the VNA on the second floor of the offices located at 150 West 1^st Street in Claremont (DUMF No. 8), that Plaintiff used the elevator to access the meeting (DUMF No. 9), that, at the conclusion of the meeting, the elevator could not be accessed as no key card was available (DUMF No. 10), that Plaintiff used the stairs to exit the building (DUMF No. 11), that, as Plaintiff descended the stairs, she lost her footing and stumbled (DUMF No. 13) and that Plaintiff claims she pulled muscles on her left side when she grabbed the stair handrail to prevent her from falling (DUMF No. 14.) VNA has not provided the court with any evidence that Plaintiff was given any advanced warning that she would be unable to access the elevator after the meeting or that Plaintiff was given any alternate way to exit the premises other than the staircase.

VNA has failed to meet its moving burden of negating the element of duty. Accordingly, the motion is denied.

3.         Sunbeam’s and Walmart’s Motion for Summary Judgment

Legal Standard

See Motion #2.

Discussion

Sunbeam and Walmart (hereinafter, “Product Liability Defendants”) move for an order granting summary judgment in their favor and against Plaintiff; alternatively, Product Liability Defendants seek summary adjudication as follows:

Issue #1: Product Liability Defendants are entitled to summary adjudication on Plaintiff’s cause of action for Product Liability Negligence because Plaintiff does not possess, and cannot reasonably obtain, evidence that the subject product contained a defect;

Issue #2: Product Liability Defendants are entitled to summary adjudication on Plaintiff’s cause of action for Strict Liability—Design Defect for the same reason set forth in Issue #1;

Issue #3: Product Liability Defendants are entitled to summary adjudication on Plaintiff’s cause of action for Strict Liability—Manufacturing Defect for the same reason set forth in Issue #1;

Issue #4: Product Liability Defendants are entitled to summary adjudication on Plaintiff’s cause of action for Strict Liability—Failure to Warn because Plaintiff does not possess, and cannot reasonably obtain, evidence that the subject product failed to adequately warn;

Issue #5: Product Liability Defendants are entitled to summary adjudication on Plaintiff’s cause of action for Breach of Implied Warranty because Plaintiff does not possess, and cannot reasonably obtain, evidence that the subject product was not merchantable at the time of delivery or that she apprised the Product Liability Defendants that the subject product breached any implied warranty in a reasonable amount of time.

Alternate Request for Summary Adjudication

Plaintiff’s TAC asserts one cause of action against the Products Liability Defendants for Strict Product Liability. “Strict liability has been invoked for three types of defects—manufacturing defects, design defects, and “warning defects,” i.e., inadequate warnings or failures to warn.” (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995.) Plaintiff has alleged, in relevant part, that, after Plaintiff sustained injuries in the October 6, 2016 fall, she purchased an electric heating pad product named the Sunbeam King Size Heating Pad (“subject electric heating pad”), which was manufactured and designed by Sunbeam and subsequently sold at Walmart. (TAC, ¶ 24.) Plaintiff has alleged that the subject electric heating pad was defectively manufactured; more specifically, Plaintiff has alleged that there was inadequate guarding to prevent the product from heating to such a degree to burn human skin and that was no automatic shutoff mechanism. (Id., ¶¶ 24 and 52.) Plaintiff has further alleged that the subject electric heating pad failed to carry sufficient warnings. (Id., ¶ 50.)

Plaintiff’s cause of action, however, also includes language for negligence and breach of implied warranties. Plaintiff has alleged that the subject electric heating pad was neither safe for its intended use nor of merchantable quality and that Plaintiff suffered damages due to the Products Liability Defendant’s negligence. (Id., ¶¶ 51 and 53.)

Code of Civil Procedure § 437c, subdivision (f)(1) provides that 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.” However, “[a] recognized exception to the statutory language above holds that where two or more separate and distinct wrongful acts are combined in the same cause of action in a complaint, a party may present a summary adjudication motion that pertains to some, but not all, of the separate and distinct wrongful acts.” (Blue Mountain Enterprises, LLC v. Owen (2022) 74 Cal.App.5th 537, 549.)

Accordingly, the Products Liability Defendants’ alternate request for summary adjudication is proper.

Procedural Defects

At the outset, the court notes that Plaintiff’s response to Defendant’s separate statement reflects non-compliance with California Rules of Court (“CRC”) rule 3.1350, subdivision (f)(2) (i.e., “[o]n the right side of the page, directly opposite the recitation of the moving party's statement of material facts and supporting evidence, the response must unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, . . . the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers”) and Code of Civil Procedure § 437c, subdivision (b)(3) (i.e., “[t]he opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. . . Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence . . .”). Plaintiff has not provided a “disputed” or “undisputed” response to Product Liability Defendants’ Fact Nos. 7-10.

Also, Plaintiff’s response to Defendant’s separate statement impermissibly includes objections.

“[A] separate statement is not evidence; it refers to evidence submitted in support of or

opposition to a summary judgment motion. (Jackson v. County of Los Angeles (1997) 60

Cal.App.4^th 171, 178, fn. 4 [emphasis theirs].) The aforesaid evidentiary objections are

summarily overruled on this basis.

Request for Judicial Notice

The court rules on Products Liability Defendants’ Request for Judicial Notice (i.e., filed concurrently with their reply brief) as follows: Denied as to Exhibit A (i.e., “Plaintiff’s Responses to Defendant Sunbeam Products, Inc.’s Form Interrogatories, Set One); Denied as to Exhibit B (i.e., “Plaintiff’s Responses to Defendant Walmart, Inc.’s Form Interrogatories, Set One); Denied as to Exhibit C (i.e., Sumaya v. Cequent Performance Products, Inc., 2015 WL 2393276 [non-published case]) and Granted as to Exhibit D (i.e., Tokai Corp. v. Easton Enterprises, Inc. (Fed. Cir. 2011) 632 F.3d 1358.)

Evidentiary Objections

The court rules on Plaintiff’s evidentiary objections as follows: Sustained as to Nos. 7 (i.e., other than the first sentence), 8, 9, 10 (i.e., as to first sentence only), 12-14, 15 (i.e., as to subsection (g) only) and Overruled as to Nos. 1-6, 7 (i.e., as to the first sentence only), 10 (aside from the language identified above) 11, 15 (aside from the language identified above) and 16-20.

The court rules on Products Liability Defendants’ evidentiary objections as follows: Sustained as to Nos. 1, 2 (i.e., as to “from Sunbeam (To the best of my recollection, he stated that he was an employee of Sunbeam)”), 3, 4, 6-15 and Overruled as to Nos. 2 (aside from the language quoted above) and 5.

Merits

Product Liability Defendants assert that they are entitled to summary judgment on the basis that the subject electric heating pad did not contain a defect. (Stephen v. Ford Motor Co. (2005) 134 Cal.App.4^th 1363, 1373 [“A product liability case must be based on substantial evidence establishing both the defect and causation”]; Chavez v. Glock (2012) 207 Cal.App.4^th 1283, 1304 [“As with an action asserted under a strict liability theory, under a negligence theory the plaintiff must prove a defect caused injury”].)

Plaintiff has alleged that the “[t]he direct and proximate cause of [her] injury . . . was the flawed design and/or manufacture of the subject electric heating pad.” (TAC, ¶ 52.) All of Plaintiff’s claims against the Products Liability Defendants are thus premised on the allegation that the subject electric heating pad contained a defect that rendered it unsafe.

The court determines that Product Liability Defendants met their moving burden of showing that the subject electric heating pad was not defective through the declaration of electrical engineer Scott Wright (“Wright”). Wright identified the documents he reviewed in formulating his opinions, including Examination and Testing Protocol, June 15, 2021, Exponent testing and research on Sunbeam heating pads, Previous Exponent reports, the FDA/CPSC Public Health Advisory: Hazards Associated with the Use of Electric Heating Pads, December 12, 1995, the UL 130, 13th Edition, Standard for Safety for Electric Heating Pads, NFPA 921 2017 Edition, Guide for Fire & Explosion Investigations, ASTM C1055 – 03, 2009 Edition, Standard Guide for Heated System Surface Conditions that Produce Contact Burn Injuries. ASTM C1057 – 03, 2010 Edition, Standard Practice for Determination of Skin Contact Temperature from Heated Surfaces Using a Mathematical Model and Thermesthesiometer, Therm-X Thermesthesiometer Model: XTMX3125 User Guide and C. J. Mikolajczak and P. M. Taylor, “A Method for Assessing the Potential for a Dermal Burn Hazard from Malfunctioning Consumer Electronic Devices,” Journal of Burn Care & Research, 29(2), March/April 2008. (Wright Decl., ¶ 5.) Wright explained that his July 14, 2021 inspection of the subject electric heating pad did not reveal any manufacturing defects or indication of modification or repair, that the heating pad vinyl was in good condition and that it had four heat settings and a two-hour automatic-off feature. (Id., ¶ 6b.) Wright then explained that he tested the subject electric heating pad for 20 minutes on this date in a manner partially based on the methodology outlined in UL 130 Sections 27.3 and 27.6, adapted to simulate the subject incident, with the subject electric heating pad’s control set to the warmest “High” setting to produce the highest temperatures and make the test conservative. (Id., ¶ 6a.)

Wright explained that the subject electric heating pad in its cloth cover was placed on top of a felt pad, that a thin felt blanket was placed on top of the Subject Product, and that six thermocouples were taped to directly to the felt blanket. (Id., ¶ 6c.) The pants Plaintiff was wearing at the time of the incident were placed on top of blanket, and six thermocouples were taped directly to the pants. (Id.) Wright reported that the highest temperature recorded by any of the thermocouples was 105.5 degrees Fahrenheit, which showed that the subject heating pad functioned in compliance with the maximum temperature requirements of UL 130 Section 27.1 (194 °F for the first heating cycle, and 176 °F thereafter). (Id.) Wright attested that this temperature would not have caused any burns to a person without an underlying condition. (Id.) Wright further explained that he used a thermesthesiometer to conduct a second test to simulate the temperature that skin would perceive when using the subject electric heating pad in the warmest “High” setting with a thin felt blanket and the pants Plaintiff was using between the Subject Product and the skin. (Id., ¶ 6d.) Wright explained that the thermesthesiometer was calibrated at the time of the inspection was placed on the pants, felt blanket, and subject electric heating pad in its cloth sleeve with two kilograms of force pushing down on the contact surface. (Id.) Wright reported that the highest temperature recorded during this test was 107.6 degrees Fahrenheit. (Id.) Wright attested that this temperature would not have caused any burns to a person without an underlying condition. (Id.) Wright concluded that the subject electric heating pad was not defective in design, manufacture, or operation, and set forth the bases for his conclusion in Paragraph 16, which were presented to a reasonable degree of scientific certainty. (Id., ¶¶ 16 and 17.)

Plaintiff, in turn, has failed to show via the declaration of mechanical engineer James William Jones, Ph.D. (“Jones”) that there is a triable issue as to whether or not a defect existed. Jones’ purported expertise is in “solid mechanics, dynamics, and fluid mechanics.” (Jones Decl., ¶ 3.) Jones reported that his group provided consulting services on “aerospace, automotive, electronic packaging, commercial products, and numerous other economic sectors” and that the bulk of his experience relates to “pressure vessels, piping and heat exchangers.” (Id., ¶¶ 3 and 4.)A “heat exchanger” is defined on merriam-webster.com as “a device (such as an automobile radiator) for transferring heat from one fluid to another without allowing them to mix.” Jones also noted his experience with “developing a risk-based methodology for ranking terrorist threat and allocation of resources for preventing attacks on critical infrastructure targets” and developing “detailed assessment tools for protecting nuclear plants, chemical plants, and refineries, spent nuclear fuel storage sites, dams and navigation locks and other critical infrastructure components.” (Id., ¶¶ 5 and 6.)

Jones advised only that he reviewed Wright’s declaration and Plaintiff’s deposition transcript. (Id., ¶ 11.) Jones fails to attest that he has familiarity of the regulations or industry standard related to the design or manufacture of any in-home consumer products, including heating pads, or that he has familiarity with the design or manufacture of the subject electric heating pad. Further, while Jones reported to have performed “limited testing” of the subject electric heating pad, he did not describe any of the testing or what it entailed.

The court notes that a failure to warn theory may be based on the contention that “inadequate warning relative to use of the product was given.” (Barrett v. Atlas Powder Co. (1978) 86 Cal.App.3d 560, 564.) Plaintiff, however, conceded that she did not ask her in-home supportive worker to read the warnings to her before using the product. (UMF No. 4.) Accordingly, there is no triable issue of material fact on the failure to warn claim on this additional basis.

The motion for summary judgment is granted.