Judge: Upinder S. Kalra, Case: 20STCV29343, Date: 2025-04-02 Tentative Ruling

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Case Number: 20STCV29343    Hearing Date: April 2, 2025    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   April 2, 2025                          

CASE NAME:           Doroteo Gonzales Jr., et al v. Kido Sports Co. Ltd., et al.

CASE NO.:                20STCV29343

MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY:  Defendants Kido Sports Co., Ltd. and Western Power Sports, LLC

RESPONDING PARTY(S):  Plaintiffs Doroteo Gonzales Jr. and Terry Gonzales

REQUESTED RELIEF:

1.      An Order granting summary adjudication in Defendants’ favor that the strict liability cause of action fails because of the absence of admissible evidence that the subject EXO Covert helmet was defective; and

2.      An Order granting summary adjudication in Defendants’ favor that the negligence cause of action fails because of the absence of admissible evidence that the subject EXO Covert helmet was defective.

TENTATIVE RULING:

1.      Motion for Summary Adjudication is DENIED in its entirety.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Doroteo Gonzales Jr. and Terry Gonzales (Plaintiffs) filed a Wrongful Death Complaint against Defendants Kido Sports Co., Ltd., Scorpion Sports, Inc., and Cycle Gear, Inc. on August 4, 2020. Defendant Kido Sports, Co., Ltd. (Defendant) filed an Answer on July 19, 2021. Defendant Cycle Gear, Inc. (Cycle Gear) filed an Answer and Cross-Complaint on September 3, 2021. Plaintiffs dismissed Cycle Gear on November 2, 2021. Cycle Gear dismissed its Cross-Complaint on December 9, 2021. Plaintiffs filed a First Amended Complaint (FAC) on April 24, 2023 with two causes of action for: (1) Product Liability, and (2) Deceptive Advertising and Unfair Business Practices. Defendant filed an Answer to the FAC on May 26, 2023. Defendant Western Power Sports, LLC (sued as DOE 1) filed an Answer to the FAC on September 15, 2023. Defendant Scorpion Sports, Inc. has not been served and has not appeared.

According to the FAC, Plaintiffs’ son died after crashing face-first into the ground while riding his motorcycle. Plaintiffs allege that their son was wearing a Scorpion “EXO Covert” Helmet at the time of the accident and that this helmet was defective because it did not protect his head from frontal impact. Plaintiffs further allege that the defendants intentionally marketed that the helmet would protect from frontal injuries.

Defendant filed the instant motion on August 1, 2023. Plaintiffs filed an opposition on August 17, 2023. Defendant filed a reply on August 23, 2023.

On October 4, 2023, the court continued the instant motion to October 19, 2023.

On December 30, 2024, Defendants Kido Sports Co., Ltd. and Western Power Sports, LLC (Defendants) filed the instant motion for summary adjudication. On March 13, 2025, Plaintiffs filed an opposition. On March 24, 2025, Defendants filed a reply.[1]

LEGAL STANDARD:

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿ (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)¿ 

“[T]he initial burden is always on the moving party to make a prima facia 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).)¿ A moving defendant need not conclusively negate an element of plaintiff’s cause of action.¿ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)¿ 

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ It is insufficient for the defendant to merely point out the absence of evidence.¿ (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿ The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿ (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿ (Aguilar, 25 Cal.4th at p. 855.)¿ 

“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., § 437c, subd. (p)(2).)¿ The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿ (Ibid.)¿ “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.)¿ 

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)¿ “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.¿ [Citation.]¿ 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.)¿ “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?”  (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860 [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.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.¿ [Citation.]”¿ (Id. at p. 840; 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”].)¿ 

ANALYSIS:

Evidentiary Objections

The court rules on Plaintiffs’ Evidentiary Objections as follows:

1.      SSUMF No. 10: Overruled

2.      SSUMF No. 11: Overruled

3.      SSUMF No. 12: Overruled

The court rules on Defendants’ Evidentiary Objections as follows:

1.      Declaration of Sy Nazif (Objection Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9):Overruled

2.      Declaration of Rami Hashish (Objection Nos. 10, 11):Sustained

Request for Judicial Notice

The court GRANTS Defendants’ request for judicial notice as to Exhibits A, B, C, and D.

(Evid. Code § 452(d), (h); See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23,37.) However, the court only takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)¿¿

Summary Adjudication

i.                    First Cause of Action – Products Liability

a.      Count One: Strict Products Liability

Defendants contend that summary adjudication is proper because Plaintiffs have not produced admissible evidence under design defect, manufacturing defect, or warning defect.[2] Plaintiffs argue that Defendants admitted the Helmet fails the “Consumer Expectation Test” and Defendants marketed the Helmet as a full face helmet which contradicts the manual’s warnings. Additionally, Plaintiffs argue they have expert discovery supporting these points. Defendants reply that Plaintiffs did not provide evidence that the Helmet deviated from its intended design as a half helmet and that Plaintiffs waived the manufacturing defect claim by failing to oppose it.

“In a products liability action, every supplier in the stream of commerce or chain of distribution, from manufacturer to retailer, is potentially liable.  (Edwards v. A.L. Lease & Co. (1996) 46 Cal.App.4th 1029, 1033.)  “The elements of a strict products liability cause of action are a defect in the manufacture or design of the product or a failure to warn, causation, and injury.”  (County of Santa Clara v Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) 

                                                              i.      Design Defect

A design defect occurs when a product is manufactured according to specifications, but contains an inherent flaw that renders it unsafe. (In re Coordinated Latex Glove Litig. (2002) 99 Cal.App.4th 594, 606-607.) There are two tests for establishing a design defect. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1208 (Karlsson).) The first is the consumer expectation test.[3] (Ibid.) Under that test, “the plaintiff shows that the product failed to perform as safely as an ordinary consumer would expect when using the product in an intended or reasonably foreseeable manner.” (Ibid.)

Here, Defendants met their initial burden. Notably, Defendants provide Plaintiffs’ boilerplate discovery responses that do not identify the alleged design defect for the Helmet. “If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, . . . , the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs' factually devoid discovery responses.” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107.) As in Andrews, Defendants requested Plaintiffs to “describe the design defect(s)” and to “set forth all facts that support your contention” that the Helmet had a design defect. (SSUMF No. 3.) Plaintiffs replied that the “helmet at issue failed to perform as safely as an ordinary consumer would expect” and that “[a]t the time of the product failure, it was used as intended by the manufacturer, or in a way that was reasonably foreseeable” and that “the benefits of the design do not outweigh the risk of danger inherent in such design,” that “[t]he helmet was used in an intended or reasonably foreseeable manner, and failed to perform as safely as an ordinary consumer would expect,” and finally, that “Defendants knew or should have known of the dangers associated with the helmet at issue,” and failed to warn of them. (SSUMF No. 4.) This response does not identify a design defect.

Next, Plaintiffs did not meet their burden that there is a triable fact concerning a design defect. To start, Plaintiffs still did not identify the alleged design defect. Instead, Plaintiffs argue that Defendants marked the Helmet as a full face helmet and failed to warn consumers that it does not protect as well as a full face helmet. (Opp. 6:12-14.) The court is not convinced that the consumer expectation test applies in a situation, like here, when the purported flaw is marketing materials. Indeed, it is unclear to the court that how Defendants marked the Helmet “contains an inherent flaw that renders it unsafe.”[4] In sum, Plaintiffs did not provide evidence of a disputed design flaw.

                                                            ii.      Manufacturing Defect

To establish a manufacturing defect, a plaintiff must prove either that the product differed from the manufacturer’s intended result or that it differed from other ostensibly identical units of the same product line. (Barker v. Lull Engineering Co., Inc. (1978) 20 Cal.3d 413, 429.) For example, a manufacturing defect occurs “when a product comes off the assembly line in a substandard condition.” (Ibid.)

Here, Defendants met their initial burden that there are no disputed facts that the Helmet suffered a manufacturing defect. Notably, Plaintiffs did not identify such a defect in their discovery responses. (SSUMF Nos. 1, 2.) As discussed above, this is enough, under Andrews, for Defendants’ burden. (Andrews, supra, 138 Cal.App.4th at 107.) In turn, Plaintiffs did not meet their burden because they did not address a manufacturing defect at all.

                                                          iii.      Warning Defect

A product “may nevertheless be deemed ‘defective’ . . . and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given.” (Cavers v. Cushman Motor Sales, Inc. (1979) 95 Cal.App.3d 338, 342; see also Karlsson, supra, 140 Cal.App.4th at p. 1208.)  The manufacturer must have actual or constructive knowledge of a potential risk or danger. (Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1239.)

As above, Defendants met their initial burden. Indeed, Plaintiffs’ discovery responses are verbatim to those addressed above. (SSUMF Nos. 5, 6.) Additionally, Defendants provide evidence that the Helmet should have contained a warning with the owner’s manual as well as a hang-tag warning on the chin strap. (SSUMF Nos. 10, 11.)

However, Plaintiffs met their burden that a material factual dispute exists. Plaintiffs’ argument is simple and compelling: Defendants knew that the Helmet did not offer the same protection as a full face helmet, they marketed the Helmet with their full face helmets (or implied it was also a full face helmet), and they did not include sufficient warnings that it did not protect the same way a full face helmet did. (Opp. 7:6-17.[5]) It is undisputed that the Helmet is a “half helmet and does not provide as much coverage or protection as a full face or three quarter helmet.” (Additional Material Facts (AMF) No. 6.) It is undisputed that Defendants do not place a warning in the Helmet’s box and that most people do not read the warning in the owner’s manual. (AMF Nos. 15, 17.) Whether the warnings included with the Helmet are sufficient is not appropriately decided at this junction by this court.

Accordingly, the court DENIES Defendants’ motion for summary adjudication.[6]

b.      Count Two: Negligence

Defendants contend that summary adjudication is proper because Plaintiffs have not produced admissible evidence that the helmet had a defect. However, Defendant provides no argument on this point.

The court therefore DENIES Defendants’ motion for summary adjudication as to Plaintiffs’ First Cause of Action: Count Two – Negligence.

CONCLUSION:

            For the foregoing reasons, the Court decides the pending motion as follows:

1.      Motion for Summary Adjudication is DENIED in its entirety.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             April 2, 2025               __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court