Judge: Peter A. Hernandez, Case: 18STCV00634, Date: 2023-08-11 Tentative Ruling

Case Number: 18STCV00634    Hearing Date: August 11, 2023    Dept: K

Defendant Sunbeam Products, Inc. and Walmart, Inc.’s Motion for Summary Judgment is DENIED. 

BACKGROUND

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. 1st 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.”

On October 6, 2022, the court granted Sunbeam’s and Walmart’s motion for summary adjudication as to Issue No. 4 (i.e., Strict Liability—Failure to Warn).

The Final Status Conference is set for August 29, 2023. Trial is set for September 12, 2023.

Evidentiary Objections

Plaintiff’s evidentiary objections are overruled in full.

The court rules on Plaintiff’s evidentiary objections as follows:

1.                  Declaration of Kelly Schwalbach: overruled in full.

2.                  Declaration of Vojin Oklobdzija, Ph.D: overruled in full.

3.                  Declaration of Michel Fernando Brones: overruled in full.

4.                  Declaration of James William Jones, Ph.D: overruled in full.

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.4th 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.” (Avivi, supra, 159 Cal.App.4th at 467; Code Civ. Proc., § 437c, subd. (c).)

Discussion

Sunbeam Products, Inc. and Walmart Inc. (collectively, the “Products Liability Defendants”) bring a renewed motion for summary judgment pursuant to CCP § 1008(b).  On October 6, 2022, the court denied Products Liability Defendants’ motion for summary judgment on the grounds that there was a question of fact regarding whether the Sunbeam electrical heating pad was defective when on the “Low” setting, which is the setting on which Plaintiff claims to have used it when she was injured.  Products Liability Defendants provide a supplemental declaration by electrical engineer Scott Wright, which they claim resolves the only remaining question of fact before the court and that they meet their burden of showing the subject heating pad was not defective.  Product Liability Defendants request the court grant their renewed motion for summary judgment based on newly obtained facts from an April 6, 2023 product inspection.

On April 6, 2023, electrical engineer Scott Wright inspected and tested the Subject Product on the “Low” setting in accordance with the methodology outlined in UL 130 Sections 27.3 and 27.6, adapted to simulate the subject incident as described by Plaintiff.  (Defendant’s Separate Statement of Undisputed Material Facts “SUMF” No. 1; Wright Decl. at ¶ 4.)  He concluded the Subject Product met all industry standards and was not defective in design, manufacture, or operation.  (SUMF No. 1-3; Wright Decl. at ¶¶ 9-10.)  Product Liability Defendants argue that the repeated testing by Dr. Wright shows that no design or manufacturing defects exists with respect to the subject heating pad, specifically since it functioned well within the safety parameters of the UL 130 standard, and the highest temperature reached on the “Low” setting was 96.3 degrees Fahrenheit, which is insufficient to cause burns to human skin.  (Wright Decl. ¶ 7.)

The court finds that Products Liability Defendants have satisfied their burden of proof.  The burden shifts to Plaintiff.

In opposition, Plaintiff argues that Product Liability Defendants fail to meet their burden of proof and that triable issues of material fact exist as to whether the subject heating pad was defective.  Finally, Plaintiff asserts that Product Liability Defendants’ renewed motion for summary judgment is defective given that they have not presented any newly relevant facts as required by CCP § 437c(f)(2).  Plaintiff asserts that Product Liability Defendants still have not presented any evidence about the temperature of the subject heating when used by Plaintiff on October 21, 2016, and Dr. Wright’s declaration does not demonstrate the data he obtained regarding the subject heating pad on April 6, 2023 was based on substantially similar circumstances to how Plaintiff used the subject heating pad on October 21, 2016.

Plaintiff points out how her use differed from the April 6, 2023 testing performed by Dr. Wright: (1) Plaintiff placed the subject heating pad on her body which generates heat while Dr. Wright placed the subject heating pad placed on a non-heat producing felt on a conference room table; (2) Plaintiff wrapped the subject heating pad around her body, thus naturally causing folds, while Dr. Wright laid the subject heating pad completely flat; (3) Plaintiff’s heating pad was brand new while the subject heating pad Dr. Wright used was approximately 6.5 years old; and (4) the temperature of the room which Plaintiff used the subject heating pad was unknown while the temperature of the room went down from 78.32 degrees Fahrenheit to 68.72 degrees Fahrenheit during Dr. Wright’s testing. Additionally, Plaintiff argues that Product Liability Defendants fail to show as a matter of law that the subject heating pattern was defectively manufactured because Dr. Wright’s failed to review an exact replica of the subject heating pad.  As to Dr. Wright’s reference to the UL 130 standard, Plaintiff argues that this has no relevance based on the evidence presented as Dr. Wright’s declaration fails to state the relevance or importance of the UL 130 standard.  Further, Plaintiff points out that Dr. Wright conceded at his deposition that he does not know if the UL 130 standard is intended to protect people from suffering third-degree burns while using electric heating pads, which is the only relevant issue in this case.

Plaintiff also argues that there are triable issues of material fact as to the defective nature of the subject heating pad.  Plaintiff asserts that Defendant Sunbeam Products, Inc. designed the subject heating pad to heat up to 160 degrees Fahrenheit (Plaintiff’s Separate Statement of Material Facts “Plaintiff’s SSMF” ¶ 5), and Defendant Sunbeam Products, Inc., admits that the subject heating pad may have reached 160 degrees Fahrenheit when Plaintiff used the subject heating pad on October 21, 2016.  (Plaintiff’s SSMF, ¶ 6.)  Plaintiff states that a reasonable jury could find that the subject heating pad did not perform as safely as an ordinary consumer would have expected by causing her third degree burns when used for 20 minutes at most on the low setting on Plaintiff’s abdomen. 

Further, Plaintiff submits declarations of her three retained experts.  Dr. Oklobdzija opines that the testing done by Dr. Wright cannot be validly applied to Plaintiff’s use of the subject heating pad on October 21, 2016 because Dr. Wright failed to account for the environment, the heat generated from the human body, and the natural folding of the heating pad to contour with the abdomen of Plaintiff when he tested the heating pad, which are circumstances materially different to Dr. Wright’s chosen conditions.  (Plaintiff’s SSMF, ¶¶ 28, 29, 30, 31, and 32.)  Dr. Jones opines that the subject heating pad is defective by allowing the temperature of said heating pad to rise to such a level that it caused third degree burns on the “low” setting after 20 minutes of use.  Dr. Jones also opines that the subject heating pad was defective by failing to control the heat input based on temperature.  Dr. Jones also provided the results of his testing of the subject heating pad, specifically that the temperature of the subject heating pad rose to 140 degrees.  Dr. Jones also raised significant issues with Dr. Wright’s testing and opined that Dr. Wright’s testing did not simulate the actual conditions at the time of the incident.  (Plaintiff’s SSMF, ¶¶ 22, 23, 24, and 25.)  Finally, Dr. Brones opined that the subject heating pad, which is a medical device, is unreasonably dangerous by being designed to heat up to 160 degrees Fahrenheit, well outside the therapeutic value range of 113.9 degrees Fahrenheit.  (Plaintiff’s SSMF, ¶ 18.)

In reply, Products Liability Defendants assert that Plaintiff fails to raise a triable issue of material fact.  Products Liability Defendants argue that Plaintiff’s self-serving declaration is inadmissible because it entirely contradicts her previous deposition testimony.  (See Schwalbach Dec. to Plaintiff’s Opp. ¶ 3.)  Plaintiff states in her deposition that she was laying on her back when the heating pad was placed on top of her, specifically that she was not laying on her right side.  (Etemad Decl., ¶ 3, Ex. B at p. 34:17-24.)  But Plaintiff now claims that the heating pad was draped over her left side and was curved around her abdomen, which contradicts her prior statement. Accordingly, Products Liability Defendants state that the court should not consider her new declaration as well as the experts’ opinions which are based on Plaintiff’s inadmissible testimony. 

The court finds that Plaintiff has satisfied her burden in showing a triable issue of fact as to the existence of a defect in the subject heating pad.  Plaintiff points out circumstances which are different from the testing performed by Dr. Wright.  Although the testing was performed in the “Low” setting, the court finds that the difference in circumstances may support a finding that the subject heating pad was defective in design, manufacture, or operation.  Further, the court does not find that Plaintiff’s declaration or the opinions of her expert witnesses are inadmissible.  Plaintiff’s deposition testimony, where she claimed that she was not laying on her right side and that the pad was placed on top of her does not necessarily contradict her claim in the newly provided declaration that the heating pad was draped on her left side.  The positioning of the pad which may result in natural folds is materially different than the testing condition provided by Dr. Wright.  Additionally, the court finds that the difference in Plaintiff’s brand new heating pad with a pad that is approximately 6.5 years old also is a material condition which may produce different and unreliable results.

Thus, Summary Judgment is DENIED.