(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)
C. Universal Fails to Meet Its Initial Burden in Moving for Summary Judgment
Universal in its moving papers was required to affirmatively establish not only that plaintiffs do not have a prima facie cause of action, but also that plaintiffs cannot reasonably expect to present one at trial. [Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.] Code of Civil Procedure section 437c(p)(2) precludes the burden of producing evidence of a triable factual issue from ever shifting to a plaintiff unless the moving defendant first makes the required showing that one or more elements of each cause of action cannot be established. [Scheiding, supra, 69 Cal.App.4th 64, 70.] Universal fails to establish that it ever propounded state-all-facts interrogatories or simply comprehensive discovery eliciting all of plaintiffs’ evidence in support of all of the complaint’s causes of action. It therefore follows that Universal does not show that plaintiffs served factually devoid responses to any such all-encompassing discovery. [Id.] This deficiency in itself requires that the motion be denied.[FN5]
D. Universal is Liable Under a Strict Products Liability Theory
There are triable factual issues as to whether Universal is liable to plaintiffs under a strict liability theory – either on a consumer expectation defect or a failure to warn theory. Universal mistakenly asserts that it is not subject to the complaint’s strict liability cause of action because it did not supply any asbestos-containing product to the West Facility. However, Universal ignores the fact that its stores serviced and sold brakes.
California has adopted Restatement (Second) of Torts section 402A. [Barth v. B.F.Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 250.] It applies to any person engaged in the business of selling products for use or consumption which includes any manufacturer, wholesale or retail dealer or distributor. [Id. at com. f.]
Strict products liability undisputably applies to entities who are in the vertical chain of distribution of a defective product, including manufacturers, distributors, retailers, lessors of personal property, and licensors of personal property. [Bay Summit Community Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, 772-776.] Even where an entity does not manufacture or design the defective product, strict liability is appropriate for all who are, responsible for passing the product down the line to the consumer. [Id.] Strict liability also applies to entities who are outside the vertical chain of distribution, including those who profit from the defective product being in the stream of commerce. [Id.; see also Kasel v. Remington Arms Co. (1972) 24 Cal.App.3d 711, 724-725 (licensor of trademark could be liable because it was a link in the marketing enterprise, and profited therefrom).] This is because entities involved in the distribution and marketing enterprise are better able than consumers to bear the cost of defective products, and such entities are in a better position than consumers to exert pressure on the manufacturer to increase safety. [Id.] Also, strict liability is available not only to purchasers or users of the defective product, but also to bystanders who suffer harm, such as decedent Tina Gomez. [Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 586-587.]
Universal’s assertion that it did not supply any asbestos-containing products at the West Facility is based on inadmissible evidence. Beyond that, Universal is nonetheless strictly liable because removing and installing asbestos-containing brakes is an integral part of Universal’s brake service. The West Facility, regardless of owner, removed and installed brakes. David Plaza worked at least five or six months at the West Facility before it became a Universal franchise in March 1, 1982. He installed brakes that the West Facility supplied and brought dust home to Tina Gomez after work. When the West Facility was a franchise, it also removed and installed asbestos-containing brakes. In short, it makes no difference whether a Universal store was company-or franchise-owned because they supplied the same products and provided the same type of brake work to its customers. (See Part 11 of 14.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.