Opinion
B310856
09-28-2022
JUANITA HERNANDEZ et al., Plaintiffs and Appellants, v. CIUTI INTERNATIONAL, INC., et al., Defendants and Respondents
Dodge Law Firm and Terrence L. Butler for Plaintiffs and Appellants. Tyson &Mendes, Michelle Campbell and Molly Gilardi for Defendant and Respondent Ciuti International, Inc. Wesierski &Zurek, Frank D'Oro, Stephanie Hsieh and Lynne Rasmussen for Defendant and Respondent Northgate Gonzalez, LLC.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC663245, David Sotelo, Judge. Affirmed.
Dodge Law Firm and Terrence L. Butler for Plaintiffs and Appellants.
Tyson &Mendes, Michelle Campbell and Molly Gilardi for Defendant and Respondent Ciuti International, Inc.
Wesierski &Zurek, Frank D'Oro, Stephanie Hsieh and Lynne Rasmussen for Defendant and Respondent Northgate Gonzalez, LLC.
BENDIX, ACTING P. J.
In 2015, Juanita Hernandez was burned during a fire in her apartment. Plaintiffs and appellants Juanita Hernandez, her sisters, and parents challenge a summary judgment entered against them. Although plaintiffs alleged numerous causes of action against an olive oil manufacturer and a store that sold olive oil plaintiffs' arguments on appeal are directed only to their cause of action for strict products liability. Specifically, plaintiffs argue that a glass bottle of olive oil was defectively designed and failed to include a warning. They also argue that Juanita Hernandez's "misuse" of the oil was not a superseding cause of her injuries.
Plaintiffs fail to make a prima facie case of defective design because they identify no evidence supporting the conclusion Juanita was using the olive oil in an intended or reasonably foreseeable manner at the time she was burned, an element of a plaintiff's prima facie case for design defect. Plaintiffs fail to show that their failure to warn is a viable theory because they identify no allegation in the complaint, which frames the issues on summary judgment, concerning a failure to warn. Finally, although plaintiffs argue that defendants demonstrated no "misuse" of the oil (as that term is used in an affirmative defense to strict products liability), plaintiffs fail to show how the affirmative defense is relevant given that they identify no evidence in support of a prima facie case.
Plaintiffs forfeited any challenge to the order denying them a new trial. They present no separately headed argument challenging the new trial order. They cite no legal authority to support a claim of error in the order denying the motion for a new trial. Plaintiffs, moreover, rely on declarations submitted in support of their new trial motion without demonstrating any error in the trial court's conclusion that plaintiffs failed to exercise diligence in obtaining those declarations. We affirm the judgment.
BACKGROUND
On October 15, 2015, Juanita Hernandez suffered serious burn injuries to her legs when a fire broke out in the apartment where she lived with her two sisters and parents. Juanita was 14 years old at the time. Their apartment had an electric stove. Juanita went into the kitchen "[t]o look for a snack." Juanita's mother was boiling water, and the pot of water sat on one of the stove's burners. Juanita opened the cupboard above the stove, reached for muffins, and "something fell" from the cupboard. Juanita heard glass shatter and then saw flames in front of her. There were flames on Juanita's pants. According to Juanita, a green glass bottle fell from the cupboard. She learned from her attorney that the green glass bottle contained olive oil. Juanita required surgery; she had scars and suffered ongoing pain from the burns. According to plaintiffs, "when Juanita reached for the muffins in the cabinet and the Ciuti International olive oil fell, [the 1-liter bottle] shattered [and] the oil made contact with the electric coil [stove] and a fireball ensued." It is undisputed that there was no flame on the stove at the time of the incident "only steaming liquid [i.e., water] within the pot."
1. Complaint
Juanita Hernandez, her sisters, Ashley and Karen Hernandez, through their guardian Epifania Hernandez, as well as Juanita's parents Epifania and Antonio Hernandez, filed a complaint alleging the following six causes of action: strict products liability, breach of warranty, two causes of action for negligence, premises liability, and negligent infliction of emotional distress. The named defendants are: Hotpoint Electric Heating Company, Doe Stoves 1-10, Pompeian Inc. and Doe Olive Oil Manufacturers/Distributors 11-20, Northgate Gonzalez Markets, Doe Store Retailers 21-30, Silverlake Funding LLC Properties and Doe Property Owners and Managers 31-40. Plaintiffs later amended the complaint to add Ciuti International, Inc. (Ciuti), who plaintiffs contend designed the olive oil in the green glass bottle that shattered during the incident. Plaintiffs alleged that Northgate Gonzalez LLC (improperly sued as Northgate Gonzalez Markets; Northgate) sold olive oil. This appeal concerns only defendants Ciuti and Northgate (sometimes collectively referred to as defendants).
Because all plaintiffs share the same surname, we refer to them by their first names and mean no disrespect by doing so.
According to the complaint Juanita, "was severely burned . . . as a result of a fire/explosion that was caused by an ignition of the defective STOVE, combined with the explosive/flammable properties of the defective OIL."
The strict products liability cause of action against Ciuti and Northgate was based on allegations that defendants manufactured, designed, or sold the defective oil. Defendants knew the oil would be purchased without inspection. The oil was "defective and unsafe for [its] intended purpose...." Plaintiffs state that the oil was "defective and unsafe" for its "intended purpose" because it "resulted in a fire/explosion that injured the PLAINTIFFS." Plaintiffs do not further identify the defect or describe the intended purpose. Defendants knew or should have known the oil was unsafe "in that the STOVE and OIL could combine to and result in a FIRE/EXPLOSION thereby causing serious injury to consumers ...." Defendants knew or should have known the "STOVE and/or OIL posed a serious threat of danger and injury to the general public when used in a foreseeable manner."
The negligence cause of action contained allegations that defendants improperly inspected the oil or negligently manufactured, designed, and sold it. Plaintiffs alleged defendants breached a duty of care when they sold oil "in a dangerous condition, i.e., capable of igniting and causing a fire/ explosion capable of severely injuring any persons at or near the immediate area of the STOVE and/or OIL."
The negligent infliction of emotional distress cause of action contained allegations that Ashley, Karen, Epifania, and Antonio witnessed Juanita "on fire" and as a result suffered emotional distress.
In their breach of warranty cause of action, plaintiffs alleged that defendants warranted that the oil was reasonably safe and would "perform under foreseeable circumstances in a manner and fashion so as not to expose PLAINTIFFS and the general public to unreasonable risks of harm."
The premises liability cause of action and a second negligence cause of action did not include Ciuti or Northgate as defendants.
2. Motions for summary judgment
Ciuti and Northgate moved for summary judgment. Their expert, Jim Brown, a certified fire inspector, averred that where no flame is present, "olive oil will only ignite when its temperature has reached 815F." He opined that "olive oil stored in a glass container which shatters and spills upon impact could not have been the cause of the ignition of the fire during the subject incident."
Defendants' separate statements contained the following facts: "Plaintiffs claim defective design because the bottle was 'composed of glass instead of plastic.'" "Plaintiffs claim manufacturing defect because the bottle was 'composed of glass instead of plastic.'" "The sole evidence that Plaintiffs contend supports defective design" and "manufacturing defect is: 'Ju[an]ita Hernandez[ ] medical records and injury photos.'" That also is the sole evidence plaintiffs cite in support of their breach of warranty cause of action. Defendants argued that plaintiffs could not establish an element of each cause of action thus entitling defendants to summary judgment.
Ciuti also argued that there was no evidence that the green glass bottle that shattered was manufactured by Ciuti. For purposes of this appeal only, we assume that there was sufficient evidence at the summary judgment stage to show Ciuti manufactured that bottle.
3. Plaintiff's opposition to summary judgment
Plaintiff opposed summary judgment. The following are from plaintiffs' separate statement of facts: Epifania purchased a bottle of olive oil in September 2015, manufactured by Ciuti and sold by Northgate. She stored it in the cupboard above an electric stove. The bottle of Ciuti olive oil "fell from a cabinet above the stove and shattered when Juanita reached for muffins also stored in the same cabinet above the electric stove." A "fireball ensued." Plaintiffs stated that the olive oil bottle did not contain any warnings. "The heated electric stove coil ignited the olive oil." The olive oil was defective because it was in a "breakable glass container." Plaintiff's theorized that a reasonable jury "would conclude that Juanita Hernandez was severely burned by an exploding bottle of Ciuti olive oil that did not contain any warnings of its explosive propensities."
Without citation to any evidence, plaintiffs argued that "[d]efendants knew that olive oil was used in cooking and that it would therefore be utilized near a stove. Further, glass is prone to shattering and thus, a glass bottle of olive oil, utilized for cooking, shattering near a stove and causing a fireball is highly forseeable." Plaintiffs stated that the glass bottle was defectively designed. Plaintiffs stated that Ciuti's failure to include a warning was a substantial factor in causing plaintiff's injuries. Plaintiffs cited to evidence that Ciuti added a warning after being served with Plaintiffs' lawsuit. Without citation to evidence, plaintiffs stated, "Had the bottle contained a warning, Plaintiffs would not have stored it so close to the stove."
Christopher Schemel who taught "Fire Dynamics" at the University of South Florida, offered a declaration in opposition to summary judgment. Schemel averred that the Hernandez's stove heats to 1300 degrees Fahrenheit which, according to him, was sufficient to ignite the olive oil. Plaintiffs cite no evidence that the stove heated to 1300 degrees on the date of the incident.
4. Trial court grants defendants' motions for summary judgment
The trial court found no manufacturing defect because "Ciuti intended for the bottle to be made out of glass." The trial court therefore found that the fact the bottle was made out of glass was not a manufacturing defect.
The trial court also found the glass bottle did not constitute a design defect. "The olive oil bottle did not cause the incident while being used in its intended manner, i.e., cooking. Instead, the cause was Juanita accidentally dropping the bottle onto the stove upon which it shattered, spilled its contents, and caused a fireball. Although Juanita's accident was regrettable, an ordinary consumer would expect and be aware that glass shatters when dropped from a height. Plaintiffs have not demonstrated that the glass bottle was defective, e.g., it contained a crack, or that the glass was prone to easily shattering. There is simply no design defect with the Ciuti oil bottle, and this is all an unfortunate accident."
The trial court found against plaintiffs as a matter of law on the failure to warn theory. The court concluded plaintiffs "cannot demonstrate that the absence of a warning was a substantial factor in causing Juanita's injuries." The court found that under Evidence Code section 1151, it could not consider the fact that Ciuti added a warning and even such a warning would not have prevented the harm in this case.
The added warning states: "Caution: Oil will burn if overheated. Do not leave unattended while heating. If oil smokes, reduce heat. If oil catches fire, turn off heat and cover pot until cool. Do not put water on hot or flaming oil. Do not pour hot oil back into this container." Evidence Code section 1151 provides: "When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event."
The trial court found that plaintiffs failed to identify any warranty that was breached. The court found plaintiffs had not established a cause of action for negligence and ordered summary judgment in favor of Ciuti and Northgate.
5. The trial court denied plaintiffs' motion for new trial
Plaintiffs moved for a new trial arguing they presented "overwhelming evidence of defendant Ciuti's defective designed bottle: a large thin, easily breakable container, still used in a marketplace that has moved towards shatterproof, and therefore safe plastic." Plaintiffs offered a declaration from David Xu, a certified fire and explosion investigator, and argued they could show the Ciuti bottle shattered every time it was dropped. Plaintiffs further argued the circumstances "changed" because they now presented "overwhelming evidence of the defective nature of the subject 1-liter glass bottle of CIUTI olive oil ...." Xu performed "drop testing," by dropping bottles of olive oil to determine if the bottle shattered. According to him, all of the 1-liter Ciuti bottles shattered; 25 percent of the 750 mL bottles shattered and none of the 500 mL glass bottles shattered. Xu opined that the 1-liter Ciuti bottle was dangerous because it failed his drop tests. Xu also surveyed local supermarkets and online retailers and concluded most olive oil was sold in plastic bottles.
Glen Stevick, a mechanical engineer "with a specialty in failure analysis and design," offered a declaration as well in support of the new trial motion. Stevick opined that it was a foreseeable use of olive oil to store it in a cabinet near a stove. Stevick further opined that the bottle should have let consumers know that oil is flammable. Plaintiffs also provided Epifania's declaration in support of a new trial, in which she averred that had the Ciuti bottle contained a warning, she would not have stored it near the stove.
After a hearing, the trial court found plaintiffs were not reasonably diligent in producing the Xu and Stevick declarations. Although the court rejected the argument that Epifania's declaration constituted a sham pleading, it found that "oil being flammable is an obvious danger known to anyone who has ever used cooking oil. Epifania did not require a warning to be aware of this fact." The court denied plaintiffs' motion for a new trial.
Plaintiffs appealed from the order denying the new trial motion, which is not an appealable order. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19.) We deem the appeal to be from the judgment. (Id. at p. 22.)
STANDARD OF REVIEW
Our standard of review of a summary judgment is familiar. "As a summary judgment motion raises only questions of law regarding the construction and effect of supporting and opposing papers, this court independently applies the same three-step analysis required of the trial court. We identify issues framed by the pleadings; determine whether the moving party's showing established facts that negate the opponent's claim and justify a judgment in the moving party's favor; and if it does, we finally determine whether the opposition demonstrates the existence of a triable, material factual issue." (Tsemetzin v. Coast Federal Savings &Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) This court reviews the trial court's ruling, "not its rationale." (Dictor v. David & Simon, Inc. (2003) 106 Cal.App.4th 238, 245.) "A defendant can satisfy its initial burden to show an absence of evidence through 'admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing' ([citation]), or through discovery responses that are factually devoid." (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1302 (Chavez).)
This court's obligation to conduct a "de novo review [of the grant of summary judgment] does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed." (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116, disapproved on another ground as recognized in Kaufman &Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41-42; see also Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 (Del Real) ["appellate court is not required to search the record on its own seeking error"]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1111, 1115 [rejecting appellant's challenge to the grant of summary judgment because, although appellant argued a" 'plethora of admissible evidence' indicat[ed] a triable issue of fact existed" on many of his claims, appellant waived the argument by failing to identify where the evidence could be found in the record].)
DISCUSSION
On appeal, plaintiffs raise the following three arguments only: (1) "The Glass Bottle of Olive Oil Was Defectively Designed"; (2) "Defendant CIUTI'S Failure to Include a Warning on Their Product Was a Substantial Factor in Causing Plaintiffs' Injuries"; and (3) "The Alleged Product 'Misuse' Was Not the Sole or Superseding Cause of Juanita Hernandez's [I]njuries."
Plaintiffs make no argument with respect to the causes of action for breach of warranty, negligence, or negligent infliction of emotional distress. Plaintiffs do not challenge the trial court's finding that the olive oil bottle contained no manufacturing defect. Plaintiffs offer no legal argument challenging the trial court's conclusion that they were not diligent in procuring the declarations of Xu and Stevick, both of which were presented after the trial court entered judgment. An appellate brief must "support each point by argument and, if possible, by citation of authority" (Cal. Rules of Court, rule 8.204(a)(1)(B), and a party forfeits the right to appellate review of an argument where the party fails to cite applicable supporting authority (Estate of Cairns (2010) 188 Cal.App.4th 937, 949). Because plaintiffs have abandoned these issues, we do not consider them. We consider only those issues adequately raised and briefed on appeal. (Lewis v. County of Sacramento, supra, 93 Cal.App.4th at p. 116.)
A. As a Matter of Law, Plaintiffs Cannot Demonstrate a Design Defect
Strict product liability may be based on a design defect, manufacturing defect, or failure to warn. (Chavez, supra, 207 Cal.App.4th at p. 1302.) As noted above, plaintiffs have abandoned any claim based on manufacturing defect. As for products liability claims based on design defect, "a product can be found defective under one of two tests: the consumer expectations test, or the risk-benefit test. Under the consumer expectations test, a product is defective in design if the plaintiff proves that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. [Citation.] Alternatively . . . under the riskbenefit test, a product is defective in design if the plaintiff proves that the product's design proximately caused injury and the defendant fails to prove, in light of the relevant factors, that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design." (Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 676 (Perez).)
We address plaintiffs' claim based on a failure to warn in part B., post.
"[T]he plaintiff bears an initial burden of making 'a prima facie showing that the injury was proximately caused by the product's design.' [Citation.] This showing requires evidence that the plaintiff was injured while using the product in an intended or reasonably foreseeable manner and that the plaintiff's ability to avoid injury was frustrated by the absence of a safety device, or by the nature of the product's design. [Citation.] If this prima facie burden is met, the burden of proof shifts to the defendant to prove, in light of the relevant factors, that the product is not defective. Importantly, the plaintiff's prima facie burden of producing evidence that injury occurred while the product was being used in an intended or reasonably foreseeable manner must be distinguished from the ultimate burden of proof that rests with the defendant to establish that its product was not defective because the plaintiff's injury resulted from a misuse of the product." (Perez, supra, 188 Cal.App.4th at p. 678, italics omitted; see also Aetna Casualty &Surety Co. v. Farmers Brothers Co. (1998) 65 Cal.App.4th 574, 578-579 [to "establish a prima facie case of design defect under this test for a product defective in design, plaintiff must bring forth evidence of '(1) his or her use of the product' "].)
Here, plaintiffs do not clearly define what is the product whose design they claim is defective. In the complaint, they refer to "oil," but on appeal, they appear to argue the glass bottle housing the oil was defective. Specifically, they state that the olive oil was defective because it is "packaged in thin glass" and may "shatter." They, however, cite no admitted evidence to support their claim that the bottle was defective for housing cooking oil. Plaintiffs cite only to Xu's declaration filed after the court entered judgment, which the trial court rejected because of plaintiffs' lack of diligence in obtaining the declaration prior to judgment. By failing to cite any evidence in support of their design defect cause of action, plaintiffs fail to demonstrate the trial court erred in finding that using a glass bottle to house cooking oil was not a design defect. (Del Real, supra, 95 Cal.App.4th at p. 768 ["appellate court is not required to search the record on its own seeking error"]; see also Cal. Rules of Court, rule 8.204(a)(1)(C) [an appellate brief must support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. If any part of the record is submitted in an electronic format, citations to that part must identify, with the same specificity required for the printed record, the place in the record where the matter appears."])
At oral argument, plaintiffs argued that the oil was defectively designed because of the size of the glass bottle. According to plaintiff's counsel, the oil could be placed in a plastic bottle or a smaller glass bottle, but placing a highly flammable liquid in a 1-liter glass bottle constituted a design defect. This new theory is not based on any allegation in the complaint, which frames the issues for summary judgment. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 (Conroy).)
Plaintiffs acknowledge that to establish a prima facie case, they had the burden "of producing evidence that [Juanita] was injured while the product was being used in an intended or reasonably foreseeable manner." Plaintiffs further admit that Juanita was not using the olive oil or the olive oil bottle. (Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [appellate briefs are" 'reliable indications of a party's position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party."].) According to plaintiffs: "Juanita was not 'using' the olive oil bottle at all, the bottle tipped off a shelf in the kitchen." Plaintiffs reiterate: "Juanita was not 'using' the product at all." Because Juanita was not using the olive oil or the olive oil bottle, a fortiori, she was not using it in an intended or reasonably foreseeable manner. It follows that as a matter of law, plaintiffs cannot establish a prima facie element of a design defect cause of action.
B. Plaintiffs' Argument that the Failure To Include a Warning Was a Substantial Factor in Causing Plaintiff's Injuries Fails to Show Error in the Judgment
Plaintiffs argue, "Had the bottle contained a warning, directions for storage, instructions, something, Plaintiffs would not have stored it so close to the stove." Plaintiffs further argue that they "prove[d] that the one liter, glass bottle of Ciuti olive oil, which contained no instructions and no warnings was defective ...." Plaintiffs claim that "the average consumer is not aware of the fact that if a bottle of room temperature oil shatters on a stove where there is heat and water vapor[,] an explosion and fireball will result."
Although as previously noted, a product defect case may be based on the failure to warn (Chavez, supra, 207 Cal.App.4th at p. 1302), here, plaintiffs' argument is not tethered to any allegation in their complaint which frames the issues for summary judgment. (Conroy, supra, 45 Cal.4th at p. 1250 [It is well established that the "materiality of a disputed fact is measured by the pleadings ([citations]), which 'set the boundaries of the issues to be resolved at summary judgment.' "; see also Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 ["' "The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues . . ."' and to frame 'the outer measure of materiality in a summary judgment proceeding.' "].) Plaintiffs did not allege that the olive oil or the olive oil bottle was defective because it did not contain a warning and therefore cannot demonstrate error in summarily adjudicating a design defect cause of action based on failure to warn.
C. Plaintiffs' Argument that the Misuse Was Not a Superseding Cause Fails To Demonstrate Error in the Judgment
Plaintiffs argue: "Regardless of who bore the burden of proof on the issue of misuse a trier of fact co[u]ld readily conclude that product misuse does not bar the Plaintiffs/Appellants design defect theory of liability. Product misuse is a complete defense to strict products liability when an unforeseeable abuse or alteration of the product after it left the manufacturer's hands was the sole or superseding cause of the plaintiff's injury."
When a plaintiff presents a prima facie case of a design defect, the burden shifts to the defendant to show that the injury resulted from a misuse of the product. (Perez, supra, 188 Cal.App.4th at p. 679.) Here, however, as a matter of law, plaintiffs failed to demonstrate a prima facie case of design defect. Therefore, we need not consider whether defendants could have satisfied their burden of showing a misuse.
D. Plaintiffs Demonstrate No Error in the Judgment or in the Order Denying a New Trial
"It is a fundamental rule of appellate review that the judgment appealed from is presumed correct and '" 'all intendments and presumptions are indulged in favor of its correctness.'" [Citation.]' [Citation.] An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.' [Citation.]" (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).) "It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness." (Ibid.) When an appellant fails to raise a point, or makes an argument not supported by reasoned argument and citations to authority, we treat the argument as waived. (Ibid.)
In their reply brief, plaintiffs argue that applying the summary judgment framework, the burden never shifted to them to demonstrate a triable issue of material fact. This argument first made in their reply is untimely. (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486 ["It is elementary that points raised for the first time in a reply brief are not considered by the court."]; see also United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 158.)
In any event, plaintiffs demonstrate no error. Defendants' summary judgment motions showed that plaintiffs' discovery responses were so deficient that plaintiffs could not demonstrate an element of their strict products liability cause of action. Specifically, (1) when asked in interrogatories, plaintiffs cited no evidence to support their contention that any product (whether the oil itself or the glass bottle housing the oil) was defectively designed, (2) when asked in interrogatories, plaintiffs cited no evidence to support the contention that any product (whether the oil itself or the glass bottle housing the oil) was defectively manufactured, (3) when asked in interrogatories, plaintiffs cited no evidence to support the statement that any product (whether the oil itself or the glass bottle housing the oil) contained defective warnings, (4) when asked in interrogatories, plaintiffs cited no evidence to identify in "what manner" the alleged defective design contributed to Juanita's injuries, and (5) plaintiffs in discovery responses admitted "[t]he subject product was not in use at the time" of the incident. These responses shifted the burden to plaintiffs to raise a triable issue of material fact on the design defect cause of action-the only cause of action challenged on appeal. (Chavez, supra, 207 Cal.App.4th at p. 1302 [for purposes of summary judgment, defendant may rely on factually devoid discovery responses to demonstrate an element of a claim cannot be established].)
Finally, plaintiffs implicitly challenge the trial court's denial of their new trial motion by relying extensively on the declarations of Xu and Stevick throughout their briefs and at oral argument. "On review of a grant of summary judgment, we may disregard assertions or contentions not raised in a properly headed argument." (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 377, fn. 3; see Cal. Rules of Court, rule 8.204(a)(1)(B) ["Each brief must: . . . State each point under a separate heading or subheading summarizing the point"].) Plaintiffs did not challenge the denial of a new trial under a properly headed argument in their appellate briefing. They offer no legal authority to support their assertions that the trial court should have granted a new trial or that the court erred in rejecting the declarations of Xu and Stevick. Plaintiffs therefore have not overcome the presumption of correctness. (Benach, supra, 149 Cal.App.4th at p. 852.) In short, they demonstrate no error in the judgment or the postjudgment order denying their motion for new trial.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
We concur: CHANEY, J. KELLEY, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.