What is failure to recall?

Elements to Establish a Claim for Failure to Recall

Plaintiff must prove all of the following:

  1. That the defendant manufactured/distributed/sold the product;
  2. That the defendant knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner;
  3. That the defendant became aware of this defect after the product was sold;
  4. That the defendant failed to recall/retrofit or warn of the danger of the product;
  5. That a reasonable manufacturer/distributor/seller under the same or similar circumstances would have recalled/retrofitted the product;
  6. That the plaintiff was harmed; and
  7. That the defendant’s failure to recall/retrofit the product was a substantial factor in causing the plaintiff’s harm.

CACI No. 1223 — Revised October 2004

“Failure to conduct an adequate retrofit campaign may constitute negligence apart from the issue of defective design.” (Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1827. In Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485, the court observed that, where the evidence showed that the manufacturer became aware of dangers after the product had been on the market, the jury “could still have found that Clark’s knowledge of the injuries caused by these features imposed a duty to warn of the danger, and/or a duty to conduct an adequate retrofit campaign.” The failure to meet the standard of reasonable care with regard to either of these duties could have supported a finding of negligence. (Id. at 494.)

The Third Restatement of the Law of Torts (1998), Product Liability § 11, provides:

One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller's failure to recall a product after the time of sale or distribution if

  1. []...
    1. a governmental directive issued pursuant to a statute or administrative regulation specifically requires the seller or distributor to recall the product; or
    2. the seller or distributor, in the absence of a recall requirement under Subsection (a)(1), undertakes to recall the product; and
  2. the seller or distributor fails to act as a reasonable person in recalling the product.

Duty to Disclose All Facts Related to Recall — Car Dealerships

Gutierrez v. Carmax Auto Superstores Cal. (2018) 19 Cal. App. 5th 1234 “On the question whether [plaintiff] pleaded sufficient facts to establish CarMax had a duty to disclose the safety recall, we conclude her allegations are sufficient.” (Id. at 1239.) Gutierrez contends the duty to disclose existed because CarMax:

  1. had actual knowledge of the recall before the sale of the vehicle and
  2. made partial representations about the vehicle that were misleading because the existence of the recall, a material fact, had not been disclosed.

(Id.)

“We conclude her allegations are sufficient to establish for pleading purposes the existence of the safety recall was a material fact and, by reasonable inference, the existence of CarMax’s knowledge of the recall before the sale.” (Id.)

Useful Rulings on Failure to Recall

Recent Rulings on Failure to Recall

GERARDO RODRIGUEZ VS HOF'S HUTS RESTAURANTS, INC., A CALIFORNIA CORPORATION, ET AL.

In the face of [employee’s] failure to recall electronically signing the 2011 agreement, the fact the 2011 agreement had an electronic signature on it in the name of [employee], and a date and time stamp for the signature, was insufficient to support a finding that the electronic signature was, in fact, “the act of” [employee]. (Civ. Code, § 1633.9, subd. (a).)

  • Hearing

    Aug 04, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

MARK ANTHONY RAMOS ET AL VS ANZO NOBEL COATINGS INC ET AL

As an initial matter, Plaintiffs are partly correct in arguing that a toxic-torts plaintiff’s failure to recall a particular product is not sufficient to establish an absence of triable issues of fact on exposure. (Opposition at p. 8.) Toxic torts generally occur over long time frames, and a plaintiff’s failure to recall a particular product from decades earlier is not necessarily sufficient to shift the burden from defendant to plaintiff on summary judgment. (See Weber v.

  • Hearing

    Jul 30, 2020

MARK ANTHONY RAMOS ET AL VS ANZO NOBEL COATINGS INC ET AL

Although a plaintiff’s failure to recall use of a given product may show the absence of triable issues where the testimony demonstrates that the plaintiff is generally able to recall the products they worked with during that time frame (See Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1440–41), NCH presents no such context here. To obtain summary judgment, NCH must make a showing that plaintiff will be unable to prove its case by any means.

  • Hearing

    Jul 28, 2020

MARK ANTHONY RAMOS ET AL VS ANZO NOBEL COATINGS INC ET AL

Although a plaintiff’s failure to recall use of a given product may show the absence of triable issues, the burden is on the moving party to show that the testimony demonstrates that the plaintiff is generally able to recall the products they worked with during that time frame, such that their recall would be of use to the trier of fact. (See Weber, supra, 143 Cal.App.4th at pp. 1440–41.)

  • Hearing

    Jul 23, 2020

NATALIE RUBIO , ET AL. VS GENIE INDUSTRIES, INC. , ET AL.

(Sunbelt), and Does one through one hundred (collectively, Defendants), alleging wrongful death via: (1) strict products liability; (2) negligence; (3) failure to recall/retrofit; and (4) premises liability. Sunbelt filed a third-party cross-complaint against West Coast Netting, Inc. (West) and MOES 1 through 100, alleging claims for: (1) breach of contract; (2) express indemnity; (3) declaratory relief; (4) equitable indemnity; and (5) equitable contribution.

  • Hearing

    Jul 14, 2020

MANIER VS. OC HEALTH GROUP, INC.

Plaintiffs’ failure to recall signing their respective agreements is sufficient to shift the burden back to defendant. (Id. at 1054-55; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844.) “An … electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.”

  • Hearing

    Jul 09, 2020

NUNEZ VS. CAPPO MANAGEMENT XLVIII, LLC

A plaintiff’s failure to recall signing his or her agreement is sufficient to shift the burden back to Defendant. (Id. at 1054-55; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844.) “An … electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.”

  • Hearing

    Jul 09, 2020

JUAN ARREGUIN, ET AL. VS KIA MOTORS AMERICA, INC. A CALIFORNIA CORPORATION

This does not necessarily depend upon the failure to recall vehicles affected by the Engine Defect, but rather, the concealment of the Engine Defect in marketing materials. Accordingly, this ground for demurrer is not persuasive. 2. Fifth Cause of Action (Fraudulent Inducement–Intentional Misrepresentation)., A. Re: Failure to Allege Specific Facts.

  • Hearing

    Jul 02, 2020

  • Type

    Contract

  • Sub Type

    Breach

ALISTAIR MCMILLAN VS WHEELS LABS, INC

Plaintiff vaguely refers to previous accidents and contrasts Defendant’s failure to recall their bicycles to the actions of Lyft and Uber. But these allegations do not show advance knowledge and conscious disregard or extreme indifference to the rights of others. There are no specific facts describing these associated accidents and there is no indication that Lyft and Uber’s bicycles are even the same as the ones used by Defendant or involved in this case.

  • Hearing

    Jun 29, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Products Liability

PATIENTS CORP. VS. MICHELLE DENISE ZEMBA AND DOES 1-20

Zemba maintains that Wright’s failure to recall which lawyer assisted him in preparing the false notice is a weak, unpersuasive defense. Zemba asserts Patients Corp.’s fraud on the City extends beyond the false notice to include fraudulent amendments to the corporation’s articles, false stock certificates, and false loan and sale agreements, all prepared by Katcho.

  • Hearing

    Jun 24, 2020

  • Type

    Business

  • Sub Type

    Intellectual Property

JUSTIN MORGENTHALER ET AL VS JUAN ANTONIO HAROMARTINEZ ET AL

As against Defendant General Motors (“GM”), Plaintiffs allege causes of action for strict products liability, negligence, breach of express and implied warranties, failure to warn/negligent failure to recall, and punitive damages based on the subject suburban containing defective parts. TR: GRANT Plaintiff’s request for judicial notice is granted. (Evid. Code § 452.) Defendant moves the Court for a protective order.

  • Hearing

    Mar 12, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    other

RENNA CHEY VS LOS ANGELES COUNTY CIVIL SERVICE COMMISSION

The Department notes that Chey stated his failure to recall on numerous other occasions during the interview. AR 824, 832, 835, 840, 841, 844. Opp. at 10. This is true, although witnesses sometimes say that an event did not happen when they really have no recollection. More important, the Hearing Officer found that Chey lacked credibility because he was caught lying in his testimony. Chey initially testified he ran a certain radio background check using his car radio. AR 1935.

  • Hearing

    Feb 18, 2020

  • Type

    Administrative

  • Sub Type

    Writ

MANIER VS. OC HEALTH GROUP, INC.

Plaintiffs’ failure to recall signing their respective agreements is sufficient to shift the burden back to Defendant. (Id. at 1054-55; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844.) “An … electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.”

  • Hearing

    Feb 01, 2020

LAURA DELGADO VS LOS ANGELES CIVIL SERVICE COMMISSION, ET AL.

Delgado’s Failure to Recall Espinoza Delgado argues there is insufficient evidence that she made untruthful statements with respect to her inability to recall Espinoza. Her 2015 IAB interview occurred three years after she last saw Espinoza, and the booking photo Mendoza showed her did not resemble Espinoza as she saw him in the 3100 row. In the photo, he had a shaved head and did not wear glasses. In September- November 2012, he had grown his hair out for trial and wore glasses.

  • Hearing

    Jan 23, 2020

  • Type

    Administrative

  • Sub Type

    Writ

ANTONY BABAKHONOFF VS BURGER KING CORPORATION, A FLORIDA CORPORATION, ET AL.

The failure to recall signing an agreement does not overcome an otherwise reasonable inference arising from the plaintiff’s signature that plaintiff agreed to the contract. Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 160-61. The Court also finds that it appears Plaintiff signed his signature in a different manner on several documents. Suppl. Shin Decl., Exh. D.

  • Hearing

    Jan 14, 2020

  • Type

    Employment

  • Sub Type

    Other Employment

PASTORA GUTIERREZ ET AL VS JOSE A ALONZO ET AL

The failure to recall signing an agreement does not overcome an otherwise reasonable inference arising from the plaintiff’s signature that plaintiff agreed to the contract. Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 160-61. "It is well established, in the absence of fraud, overreaching or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it." (Hulsey v.

  • Hearing

    Jan 03, 2020

  • Type

    Real Property

  • Sub Type

    Landlord Tenant

HAROLD FIGUEROA ET AL VS AT&T CORPORATION ET AL

Even assuming the latter, Ceja’s failure to recall is not proof that the boom lift was not parked on the street. As such, the issue is properly stated as follows: whether a categorical exception to Civil Code section 1714 should be made exempting a property owner from potential liability to individuals who were injured because the property owner failed to secure an off-site heavy-duty vehicle belonging to another’s independent contractor.

  • Hearing

    Dec 13, 2019

MAUREEN BANNISTER VS. MARINIDENCE OPCO, LLC, ET AL

Code § 1633.9 (a); see Ruiz, supra, 232 Cal.App.4th at p. 844 [“In the face of Ruiz’s failure to recall electronically signing the 2011 agreement, the fact the 2011 agreement had an electronic signature on it in the name of Ruiz, and a date and time stamp for the signature, was insufficient to support a finding that the electronic signature was, in fact, ‘the act of Ruiz. (Civ. Code, § 1633.9, subd. (a).)”].)

  • Hearing

    Dec 11, 2019

MARIA TEUTLA VS GI & DO INC ET AL

For another, the deposition transcript reflects that Chung only occasionally cited cognitive impairments from the medical treatment as reasons for her failure to recall. Explaining these failures to recall, Chung testified in some detail about when she was diagnosed with cancer (Chung Depo. p. 28) and her continual treatment of the cancer since the diagnosis (Chung Depo. p. 29). This should serve as sufficient testimony to understand Chung’s medical condition in this FEHA action.

  • Hearing

    Nov 22, 2019

  • Type

    Employment

  • Sub Type

    Wrongful Term

MICKLIN V. OCEAN INSTITUTE

In the face of Ruiz's failure to recall signing the 2011 agreement, Moss Bros. had the burden of proving by a preponderance of the evidence that the electronic signature was authentic (Evid. Code, § 1401), that is, it was what Moss Bros. claimed it was: ‘the act of’ Ruiz (Civ. Code, § 1633.9, subd. (a)).” (Italics in Ruiz.) Espejo v.

  • Hearing

    Nov 19, 2019

ADOTEVI AKUE V. PRODO LABORATORIES, INC.

In the face of Ruiz's failure to recall signing the 2011 agreement, Moss Bros. had the burden of proving by a preponderance of the evidence that the electronic signature was authentic (Evid. Code, § 1401), that is, it was what Moss Bros. claimed it was: ‘the act of’ Ruiz (Civ. Code, § 1633.9, subd. (a)).” (Italics in original.) Defendant has met its initial burden that an agreement to arbitrate exists between Plaintiff and Prodo.

  • Hearing

    Oct 22, 2019

ADOTEVI AKUE V. PRODO LABORATORIES, INC.

In the face of Ruiz's failure to recall signing the 2011 agreement, Moss Bros. had the burden of proving by a preponderance of the evidence that the electronic signature was authentic (Evid. Code, § 1401), that is, it was what Moss Bros. claimed it was: ‘the act of’ Ruiz (Civ. Code, § 1633.9, subd. (a)).” (Italics in original.) Defendant has met its initial burden that an agreement to arbitrate exists between Plaintiff and Prodo.

  • Hearing

    Oct 22, 2019

NATALIE RUBIO , ET AL. VS GENIE INDUSTRIES, INC. , ET AL.

The complaint alleges strict products liability, negligence, failure to recall/retrofit, and premises liability for the rolling of a Genie S-85 telescopic boom causing fatal injuries to decedent Jamie Rubio on August 31, 2017. On May 15, 2019, Defendant/Cross-Defendant Knight-Calabasas, LLC d.b.a. Calabasas Country Club filed a cross-complaint against Roes 1-100 seeking indemnity, contribution, and apportionment of fault.

  • Hearing

    Oct 08, 2019

(NO CASE NAME AVAILABLE)

The complaint alleges strict products liability, negligence, failure to recall/retrofit, and premises liability for the rolling of a Genie S-85 telescopic boom causing fatal injuries to decedent Jamie Rubio on August 31, 2017. On May 15, 2019, Defendant/Cross-Defendant Knight-Calabasas, LLC d.b.a. Calabasas Country Club filed a cross-complaint against Roes 1-100 seeking indemnity, contribution, and apportionment of fault.

  • Hearing

    Sep 20, 2019

AMY HEATON VS MAXIM HEALTHCARE SERVICES, INC., A FOREIGN COMPANY, ET AL.

Defendant contends that Plaintiff’s failure to recall the Arbitration Agreement or her signing of the same is insufficient to avoid the Arbitration Agreement. Defendant argues that it has presented admissible evidence that the template Arbitration Agreement contains the terms of the Arbitration Agreement that Plaintiff signed. Defendant asserts that here, the Wilmoth Declaration, which establishes a proper foundation for Ms.

  • Hearing

    Aug 02, 2019

  • Type

    Employment

  • Sub Type

    Other Employment

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