Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. PC038057, Melvin D. Sandvig, Judge.
Greene, Broillet & Wheeler, Geoffrey S. Wells; Esner, Chang & Ellis, Andrew N. Chang and Stuart B. Esner for Plaintiffs and Appellants.
Koeller, Nebeker, Carlson & Haluck, Gary L. Hoffman and Tracy L. Hughes for Cross-complainant and Appellant.
Murchison & Cumming and Edmund G. Farrell III for Defendant, Cross defendant and Respondent.
CROSKEY, J.
Douglas Neithercut and Caroline Quine Neithercut appeal a summary judgment against their complaint and in favor of Featherlite, Inc. (Featherlite), a trailer manufacturer. The Neithercuts contend the evidence presented in support of and in opposition to the summary judgment motion creates triable issues of fact as to their counts for products liability and negligence. They also challenge the sustaining of evidentiary objections. We conclude that Featherlite failed to satisfy its initial burden as the party moving for summary judgment to show that the Neithercuts could not establish a design defect or the element of causation. We therefore will reverse the summary judgment.
Romano Stunt Rentals, Inc. (RSR), appeals a judgment on the pleadings against its cross-complaint and in favor of Featherlite. The judgment on the pleadings as to the cross-complaint for equitable indemnity was based on the absence of Featherlite’s liability to the Neithercuts, as determined by the summary judgment. RSR contends our reversal of the summary judgment would also compel the reversal of the judgment on the pleadings. We agree and will reverse the judgment on the pleadings.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Patrick Romano purchased a 45-foot long trailer from Featherlite in 2001. Lock and Key Productions (Lock and Key) hired Romano in 2005 to work as a stunt coordinator in the production of a television program. RSR leased the trailer to Lock and Key for use in the production. Lock and Key also hired Douglas Neithercut as a stunt coordinator. Romano, Neithercut, and a stunt crew worked on the production for several months and used the trailer during that time without incident, apart from a minor wiring malfunction.
A tailgate at the back of the trailer opened and lowered using an electrical control mechanism. Starting from a vertical and closed position, the tailgate first would lower several inches vertically, and then swing out a few degrees at the top until it was caught by short chains on either side. The bottom of the tailgate then would be raised and the top lowered in an arc until the tailgate was in a horizontal position and supported by longer chains. At that time, the short chains would become slack and could be unhooked from the tailgate. The tailgate then could be lowered and raised in a full horizontal position, and used as a loading ramp. The short chain hooks would be reattached to the tailgate before closing the tailgate.
One end of the short chains was permanently attached to the rear of the trailer. A hook was attached to the other end of each short chain, and the hook would attach to a “tilt bracket” on the tailgate. A pivoting, spring-loaded latch, known as a safety latch, covered the open end of the hook. The purpose of the safety latch was to prevent the hook from becoming detached unintentionally. The latch was attached to the hook using a small, removable bolt. The short chain hooks were equipped with safety latches when Romano purchased the trailer in 2001. The original bolts attaching the safety latches to the hooks both broke after a period of use, causing the safety latch to bend sideways. Stunt crew members replaced the original bolts with other bolts, apparently from their own collection of parts or from some other source. The replacement bolts also failed and were replaced periodically.
Witnesses sometimes referred to the safety latch as a retainer clip or keeper.
Witnesses sometimes referred to the bolt as a pin.
Featherlite’s service department inspected trailers that were taken in for general service. The service department noticed that some of the safety latches were missing from the trailers, and Featherlite became concerned with the frequency of that occurrence. According to Featherlite’s director of engineering, Robert Gast, Featherlite did not attempt to determine why the safety latches were missing, but decided to use a different hook with a more integral safety latch that was not removable. Featherlite continued to install the old hooks on its newly manufactured trailers until its inventory of old hooks ran out, and then began to install the new hooks together with two warning stickers. The change occurred sometime in 2001.
Douglas Neithercut and others were opening the tailgate on the morning of August 26, 2005, after several months on the job. The trailer was parked facing downhill, so the tailgate rested forward against the rear of the trailer. Marvin Francis operated the control and lowered the tailgate, but it did not swing open slightly as it should have. Neithercut and another crew member then pulled it open, but the short chains did not catch the tailgate. Instead, the tailgate swung all the way down onto Neithercut.
2. Complaint and Cross-complaint
The Neithercuts filed a complaint against Featherlite, Romano, RSR, and others on January 3, 2006, alleging that Douglas Neithercut suffered serious injuries in August 2005 when a trailer “lift gate” swung down on him while he was using the trailer for its intended purpose. The Neithercuts allege that the hooks on the short chains were supposed to have safety latches to ensure that the short chains did not become detached from the tailgate. They allege that, at the time of the accident, there were no safety latches on the short chain hooks and no warnings displayed on the trailer. They allege that the trailer was defective in its design and manufacture, and that the injuries were caused by such defects or by Featherlite’s negligence.
The Neithercuts allege counts against Featherlite for (1) strict products liability, (2) negligent products liability, (3) breach of express and implied warranties, (4) negligence, and (5) loss of consortium. They also allege a count against Romano and RSR for negligence based on the defendants’ alleged failure to properly maintain and supervise the use of the lift gate.
Romano and RSR filed a cross-complaint against Featherlite and others. Their first amended cross-complaint filed in June 2006 alleges three counts against Featherlite for equitable indemnity.
3. Initial Discovery
Featherlite propounded a comprehensive set of special interrogatories to the Neithercuts in March 2006, seeking evidence supporting the allegations of the complaint. The Neithercuts’ responses served in May 2006 stated as to each interrogatory: “Discovery and investigation are in initial stages. Will provide information when received as discovery and investigation progress.” Featherlite also propounded a set of inspection demands, seeking “[a]ll documents referenced in the concurrently served Special Interrogatories.” The Neithercuts responded in May 2006 by identifying and producing only Featherlite’s instructions for use and maintenance of the tailgate. Further written discovery and depositions followed, particularly after Featherlite filed its summary judgment motion.
4. Summary Judgment Motion
Featherlite moved for summary judgment against the complaint in February 2007. Featherlite argued that the Neithercuts’ discovery responses showed that they had no evidence of either a product defect or proximate causation. Featherlite also presented evidence that the bolts connecting the safety latch to the hooks had broken sometime before the accident, and that stunt crew members had replaced the broken parts with other bolts. Featherlite argued that such an alteration or misuse was a complete defense to products liability.
The Neithercuts argued in opposition that the evidence showed that there was a design defect in the tailgate. They argued that Featherlite knew that the safety latches were inadequate and that it was reasonably foreseeable that the short chains and hooks would be used without safety latches. They argued further that the tailgate fell because there were no safety latches at the time, that Featherlite had presented no evidence to disprove causation, and that causation was an issue of fact. They presented a declaration by a mechanical engineer, Scott Ganaja, who had examined the trailer in March 2007 and reviewed other testimony and documents in the case. Ganaja opined that it was reasonably foreseeable that the safety latches on the short chain hooks would “come off,” that the short chain hooks would be used without safety latches, and that the hooks would detach from the tailgate as a result. He opined that the short chain assemblies had a design defect and that the defect was a cause of Douglas Neithercut’s injury.
The Neithercuts presented deposition testimony by Douglas Neithercut and another stunt crew member, Justin Thompson, that there were no safety latches on the short chain hooks during the time that they worked with Romano. They also presented deposition testimony by Featherlite employees concerning the redesign of the short chain assembly using a new hook and the reason for the change. Featherlite employees testified that the company did not issue a recall of trailers using the old hooks or notify the owners of those trailers that a new hook was available, except perhaps when trailers were taken in to Featherlite for service. The Neithercuts also presented Romano’s deposition testimony stating that he had called Featherlite’s service department after experiencing the breakage of several safety latch bolts, and that he was told: “ ‘It’s an engineering flaw that they break all the time. And if you’d like to order some, I can send you some.’ ” RSR also filed an opposition to the summary judgment motion.
Featherlite argued in reply that the evidence presented in opposition to the summary judgment motion failed to create a triable issue of material fact. Featherlite objected to portions of the Ganaja, Romano, and other declarations.
The trial court filed a minute order on July 5, 2007, stating that there were no triable issues of material fact and that the summary judgment motion was granted “for the reasons stated in moving papers and reply to opposition.” The court sustained all of Featherlite’s evidentiary objections without explanation. The court entered a judgment on the complaint in favor of Featherlite on July 25, 2007.
5. Stay, Petition for Writ of Mandate, and Notices of Appeal
The Neithercuts and RSR stipulated in writing “that all matters be stayed pending appellate review” of the order granting summary judgment. The trial court entered an order on the stipulation on August 1, 2007. RSR filed a petition for writ of mandate in the Court of Appeal on July 31, 2007, challenging the granting of the summary judgment motion (Romano Stunt Rentals, Inc. v. Superior Court (B200872)). We denied the petition on August 28, 2007.
The Neithercuts timely filed a notice of appeal from the judgment against them. RSR also filed a notice of appeal from the judgment on the complaint.
6. Motion for Judgment on the Pleadings, Motion to Set Aside the Judgment, and Notice of Appeal
Featherlite filed a motion for judgment on the pleadings against RSR’s cross complaint for equitable indemnity on August 3, 2007. Featherlite argued that it could not be liable for equitable indemnity because the court had determined that it was not liable to the Neithercuts. RSR did not oppose the motion. The court granted the motion on September 12, 2007.
RSR filed an ex parte application for an order shortening time to hear its motion to set aside the judgment on the cross-complaint. The court granted the application and scheduled a hearing on the motion. RSR argued in the motion that its counsel had mistakenly believed that all trial court proceedings were stayed pending appellate review of its writ petition and that no hearing would take place on the motion for judgment on the pleadings. RSR filed a declaration by its counsel stating that she failed to oppose the motion for judgment on the pleadings due to her mistaken belief that the motion would not be heard. RSR sought relief from the judgment under Code of Civil Procedure section 473, subdivision (b).
Featherlite opposed the motion to set aside the judgment. Featherlite argued that it had not stipulated to stay the trial court proceedings; that there was no legal basis for RSR’s cross-complaint after the granting of summary judgment against the complaint; and that the appeals from the summary judgment resulted in a stay of the trial court proceedings, which precluded relief from the judgment on the cross-complaint.
The trial court filed a minute order on October 23, 2007, stating that the motion to set aside the judgment on the cross-complaint was denied. The court entered a judgment dismissing the cross-complaint by RSR on December 18, 2007. RSR timely appealed the judgment.
CONTENTIONS
The Neithercuts contend (1) the summary judgment motion failed to address their negligence count and therefore should have been denied; (2) the evidence creates a triable issue of fact as to the existence of a design defect; (3) the evidence creates a triable issue of fact as to causation; and (4) the sustaining of objections to portions of the declarations and deposition testimony that they presented in opposition to the summary judgment motion was error.
RSR contends (1) the granting of the motion for judgment on the pleadings was based solely on the summary judgment and must be reversed if the summary judgment is reversed; and (2) the denial of its motion to set aside the judgment was error. RSR also challenges the summary judgment on grounds similar to those asserted by the Neithercuts.
DISCUSSION
1. Featherlite Is Not Entitled to Summary Judgment
A defendant moving for summary judgment must show that one or more elements of the plaintiff’s cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to set forth “specific facts” showing that a triable issue of material fact exists. (Ibid.) We review the trial court’s ruling de novo, liberally construe the evidence in favor of the opposing party, and resolve all doubts concerning the evidence in favor of the opposing party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)
A defendant moving for summary judgment can meet its initial burden of showing that an element of the plaintiff’s cause of action cannot be established by presenting evidence that negates such an element. Alternatively, the defendant can meet its burden by presenting evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to support an element. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-855; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767-768.) The plaintiff’s failure to produce evidence supporting an element of the cause of action in response to discovery requests seeking such evidence can create an inference that the plaintiff does not possess and cannot reasonably expect to obtain needed evidence. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83 (Scheiding); Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186 187.) The court must “stringent[ly] review” the evidence to determine whether such an inference is appropriate. (Scheiding, supra, at p. 83; accord, Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101.)
“Circumstantial evidence supporting a defendant’s summary judgment motion ‘can consist of “factually devoid” discovery responses from which an absence of evidence can be inferred,’ but ‘the burden should not shift without stringent review of the direct, circumstantial and inferential evidence.’ (Scheiding, supra, 69 Cal.App.4th at p. 83.)” (Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at p. 101.)
Featherlite’s summary judgment motion relied on both the Neithercuts’ factually devoid discovery responses and evidence that the bolts on the safety latches were replaced before the incident. Featherlite argued that the discovery responses showed that the plaintiffs could not establish the existence of a design defect or the element of causation, and that the fact that the bolts were replaced before the incident precluded liability. The Neithercuts’ discovery responses showed that, as of approximately four and one-half months after the complaint was filed, they had no evidence to support their complaint. Other evidence presented by Featherlite in support of its motion, however, showed that further discovery had revealed a factual basis for the complaint, as we will explain.
A product has a design defect if the benefits of the design do not outweigh the risk of danger inherent in the design (risk-benefit test), or if the product, used in an intended or reasonably foreseeable manner, has failed to perform as safely as an ordinary consumer would expect (consumer expectations test). (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 418.) The existence of a design defect is a question for the trier of fact. (Id. at p. 435.) The fact that the original bolts on the short chain hooks had previously failed tends to show that the bolts, and the hooks of which they were a part, were not well-suited to the task of supporting the tailgate and did not perform as safely as an ordinary consumer would expect. Viewed in light of this evidence, the factually devoid discovery responses do not create a reasonable inference that the Neithercuts do not have and cannot reasonably expect to obtain evidence of a design defect. Accordingly, we conclude that Featherlite failed to satisfy its burden as moving party to show that the Neithercuts could not establish a design defect. Featherlite therefore is not entitled to summary judgment based on the absence of a design defect.
A defendant’s conduct was a legal cause of injury if the conduct was a substantial factor in bringing about the injury and there is no rule of law relieving the defendant of liability. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Whether the defendant’s conduct was a substantial factor in bringing about the injury is a question for the trier of fact. (Ibid.) The trier of fact reasonably could conclude that the design of the short chain assembly, including the use of hooks with bolts that were prone to failure, contributed to the accident. This is true even if the original bolts were not in place on the date of the accident. An intervening act is a superseding cause that breaks the chain of causation and absolves the defendant only if the intervening act caused harm of a kind and degree not reasonably foreseeable at the time of the defendant’s tortious conduct. (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 725; Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56.) Whether the injury caused by an intervening act was reasonably foreseeable to the defendant is a question for the trier of fact. (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666.) In our view, the trier of fact reasonably could conclude that it was reasonably foreseeable that trailer operators would replace any broken bolts in the short chain hooks, continue to use the same hooks, and be exposed to the risk of injury resulting from either the failure of the replacement bolts or the absence of safety latches.
Featherlite cites Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218 for the proposition that product misuse is a defense to strict liability if “that misuse is the actual cause of the plaintiff’s injuries.” Featherlite also cites McCurter v. Norton Co. (1968) 263 Cal.App.2d 402 for a similar proposition. Wright stated, “ ‘ “[m]isuse” is a defense only when that misuse is the actual cause of the plaintiff’s injury, not when some other defect produces the harm.’ (Huynh v. Ingersoll-Rand [(1993)] 16 Cal.App.4th [825,] 831.)” This statement from Wright is consistent with our view that misuse is a defense to products liability only if the misuse breaks the chain of causation. McCurter held that the evidence supported the finding by the trier of fact that the plaintiff’s operation of a grinding wheel at an excessive rotation rate was the sole cause of injury and that his injury was not caused by any design or manufacturing defect. (Id. at pp. 405-407.) That holding also is consistent with our view of the defense of misuse.
Campbell v. Southern Pacific Co., supra, 22 Cal.3d at page 56, stated that misuse is a defense to strict products liability only if the defendant “prove[s] that an unforeseeable abuse or alteration of the product after it left the manufacturer’s hands was the sole reason that the product caused an injury. [Citations.]”
Viewed in light of the evidence that the original bolts had failed, neither the factually devoid discovery responses nor the evidence that the original bolts were not in place on the date of the accident creates a reasonable inference that the Neithercuts do not have and cannot reasonably expect to obtain evidence of causation. Accordingly, we conclude that Featherlite failed to satisfy its burden as moving party to show that the Neithercuts could not establish causation. Featherlite therefore is not entitled to summary judgment based on the absence of causation.
Featherlite also argued, “strict liability does not apply where the subject product has been altered or is no longer in the same condition as it was delivered.” This is an overstatement and is not supported by the cited authority, Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062. Putensen stated that the manufacturer of plastic tubing used in a heart catheterization procedure could not be liable for products liability. The doctor performing the procedure had stretched, soaked, and drawn the tubing over another tube before performing the procedure, so the tubing had undergone substantial changes from the condition in which it was sold. (Id. at p. 1073.) Putensen concluded that the evidence could not support a finding that a kink in the tubing, and the plaintiff’s injury, resulted from a design defect. (Id. at pp. 1073-1074.) Putensen concluded that a nonsuit against the products liability count was proper, but reversed the nonsuit in favor of the manufacturer as to counts for negligence and express warranty. (Id. at pp. 1076 1080, 1085.) The narrow holding in Putensen does not support a general rule precluding products liability whenever the product has been altered.
Featherlite makes the same argument in its respondent’s brief on appeal.
For the foregoing reasons, we conclude that Featherlite is not entitled to summary judgment on any of the grounds asserted in its motion. In light of our conclusion, we need not discuss the merits of Featherlite’s evidentiary objections or the other contentions made by the Neithercuts.
2. Featherlite Is Not Entitled to Judgment on the Pleadings
A defendant moving for judgment on the pleadings must show that the complaint fails to state facts sufficient to state a cause of action against the defendant or that the court lacks subject matter jurisdiction. (Code Civ. Proc., § 438, subd. (c)(1)(B).) A court ruling on the motion must consider only the face of the complaint and matters subject to judicial notice, accept as true the properly pleaded factual allegations of the complaint, and liberally construe the complaint. (Id., § 438, subd. (d); Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516.) We independently review the trial court’s ruling. (Gerawan Farming, supra, at p. 515.)
Featherlite moved for judgment on the pleadings on the cross-complaint for equitable indemnity based solely on the trial court’s determination that Featherlite was not liable to the Neithercuts. In light of our reversal of the summary judgment, Featherlite is not entitled to judgment on the pleadings on the cross complaint. RSR’s other contentions are moot.
DISPOSITION
The summary judgment and judgment on the pleadings are reversed. The Neithercuts and RSR are entitled to recover their costs on appeal.
We Concur: KLEIN, P. J., ALDRICH, J.