Elements to Establish a Claim for Failure to Recall
Plaintiff must prove all of the following:
That the defendant manufactured/distributed/sold the product;
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;
That the defendant became aware of this defect after the product was sold;
That the defendant failed to recall/retrofit or warn of the danger of the product;
That a reasonable manufacturer/distributor/seller under the same or similar circumstances would have recalled/retrofitted the product;
That the plaintiff was harmed; and
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
[]...
a governmental directive issued pursuant to a statute or administrative regulation specifically requires the seller or distributor to recall the product; or
the seller or distributor, in the absence of a recall requirement under Subsection (a)(1), undertakes to recall the product; and
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:
had actual knowledge of the recall before the sale of the vehicle and
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.)
The Court intends to Sustain the demurrer to the 1st cause of action without leave to amend. The Court intends to Overrule the demurrer to the 2nd cause of action. FCA's objection nos. 1 and 4 are sustained. Objection nos. 2, 3, and 5 are overruled. Answer to be filed in 10 days. (CRC Rule 3.1320(j).)Analysis: A demurrer can be used only to challenge defects that appear on the face of the pleading...
..Any valid cause of action overcomes a general demurrer. (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39.)- FCA's Evidentiary Objections filed with Reply and Plaintiffs' Response TheretoThe Court intends to Sustain objections nos. 1 and 4. The newspa...
The court addresses the evidentiary issues. Defendant Volvo Car USA, LLC's evidentiary objections 3, 6 and 7 are overruled; objections 1 and 2 are overruled because the objected to testimony is not specified [Fibreboard Paper Products Corporation v. East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, et al. (1964) 227 Cal.App.2d 675, 712]; objections 4, 5, 8 and 9 ar...
..oduct Liability-Express Warranty and Product Liability-Implied Warranty of Merchantability causes of action and DENIED as to the Product Liability – Negligence and Negligence/Negligent Repair causes of action.The court addresses the issues as framed by Volvo's notice of motion.NOTICED ISSUE NO....
PERRY PARKS, et al., Plaintiffs, v. WRIGHT MEDICAL TECHNOLOGY, et al., Defendants.Case No.: BC552067Hearing Date: December 9, 2016[TENTATIVE] ORDER RE:(1) MOTION FOR SANCTIONS DUE TO INTENTIONAL SPOLIATION(2) MOTION FOR SUMMARY ADJUDICATIONBACKGROUNDPlaintiff Perry Parks was the recipient of an artificial hip implant—known as a “Profemur” device—designed and manufactured by Defendant Wright Medica...
..ligence, (4) negligence – failure to recall/retrofit, and (5) breach of express warranty, against Defendant Wright Medical; and (6) negligence, against Defendant ASD.JUDICIAL NOTICEPla...
Plaintiffs’ Motion for Leave to File a 2nd Amended Complaint.Plaintiff moves for leave to file a 2nd amended complaint to add a claim for punitive damages. There is no trial date set.Defendant Seymour West, LLC opposes the motion on the following grounds: plaintiff failed to comply with Rule 3.1324(b) by failing to explain the one year delay in seeking amendment after discovery of the new facts; t...
..eposed. Plaintiff replied to the opposition.“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a...
CM-110
[ATTORNEY OR PARTY WITHOUT ATTORNEY (Name. State Bar number, and addre
Michael D. Mclean, SB#207712/ Michael J. Fabrega, SBH: 7 285843 FOR COURT USE ONLY
Adelson McLean, APC
14100 Newport Place Or. Suite 200
Newport Beach, CA 92660
TELEPHONE NO; 949-656-4604 FAK NO, Ootenah: 949-656-4223 Electronically
E4VAIL ADDRESS (Optional): [email protected] by Superior Court of California, County of San Matec
ATTORNEY FOR (Name) Ameron Pole Products, LLC ON
SUPERIOR COURT OF CA...
Jennifer Supman (State Bar No. 248302)
[email protected]
Richard McKie (State Bar No. 311978)
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Mark Wilson (State Bar No. 293474)
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MANNING & KASS
ELLROD, RAMIREZ, TRESTER LLP
One California Street, Suite 900
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PETERSON MARTIN & REYNOLDS LLP
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Telephone: (415) 399 2900
Facsimile: (415) 399 2930
Attorneys for Defendant and Cross complainant
REDFIN...
Jennifer Supman (State Bar No. 248302)
[email protected]
Richard McKie (State Bar No. 311978)
[email protected]
Mark Wilson (State Bar No. 293474)
[email protected]
MANNING & KASS
ELLROD, RAMIREZ, TRESTER LLP
One California Street, Suite 900
...
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26
27
28
Law of
IBIYAN LAW GROUP, F.C.
BIBIYAN LAW GROUP, P.C.
David D. Bibiyan, Esq. (SBN 287811)
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Attorneys for Plaintiff, JAMES CARAMAZZA, on
behalf of himself and all ot...
CM-110
"ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Stale Bar number, and address)
Alan Jang; Stephanie Yee; (SBN: 83409; SBN: 172251)
Jang & Associates, LLP
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF Santa Clara
street apo...
Co em ND HW F WB YY
RB RY NY KY NR NN KR BF Bw Be Pe wee Be eB
eI QAR BH fF FEO AA ARES H ES
Elizabeth Cabraser (Cal. Bar No. 83151)
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[email protected][email protected]|chb.com
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Doris Cheng (CA SBN 197731)
San Francisco County Superior C...
Co em ND HW F WB YY
RB RY NY KY NR NN KR BF Bw Be Pe wee Be eB
eI QAR BH fF FEO AA ARES H ES
Elizabeth Cabraser (Cal. Bar No. 83151)
Lexi J. Hazam (Cal. Bar No. 224457)
Sarah R. London (Cal. Bar No. 267083)
Tiseme G. Zegeye (Cal. Bar No. 319927)
LIEFF CABRASER HEIMANN & BERNSTEIN
275 Battery Street, 29th Fl.
San Francisco, CA 94111
Telephone: (415) 956-1000
[email protected][email protected]|chb.com
Michael A. Kelly (CA SBN 71460)
Doris Cheng (CA SBN 197731)
San Francisco County Superior C...
SUM-100
SUMMONS FOR COURT USE ONLY
(CITACION JUDICIAL) (S0L0 PARA USO DELACORTE)
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
JUUL LABS, INC. AND DOES 1-100
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):
CHLOE PAINTER
INOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written re...
. SUM-10
SUMMONS FOR COURT USE ONLY
(CITACION JUDICIAL) (OLO PARA USO DELACORTE)
NOTICE TO DEFENDANT: :
(AVISO AL DEMANDADO):
Juul LABS, INC.; and DOES 1-30, inclusive
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):
JOY CHILDERS
INOTICET You have been sued. The court may decide against you without your being heard uniess you respond within 30 days. Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file ...
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Ropers, Majeski, Kohn & Bentley
ELECTRONICALLY
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ATTORNEYS AT LAW
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oem NIN DW BF WN
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eID A BF HON KF SO HA DH BwWwNH HK
GILBERT L. PURCELL, ESQ., S.B. #113603
STEVEN J. PATTI, ESQ., S.B. #163773
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City Attorney
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AWK
. YOU ARE BEING SUED BY PLAINTIFF:
SUM-100
SUMMONS FOR COURT USE ONLY
(CITACION JUDICIAL) (010 PARA USO DELACORTE)
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
JUUL LABS, INC., PAX LABS, INC., ALTRIA GROUP, INC., PHILIP MORRIS USA, INC., and
DOES 1-100 INCLUSIVE
(LO ESTA DEMANDANDO EL DEMANDANTE):
ABIGAIL GARAVAGLIA
INOTICET You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.
You have 30 CALE...
SUM-100
Sve NS eee
(CITACION JUDICIAL) ite ee
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
Juul LABS, INC.; and DOES 1-30, inclusive
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):
ALEXIS BRIDGES
(NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this co...
SUM-100
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(CITACION JUDICIAL) (SOLO PARA USO DE LA CORTE)
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
Juul LABS, INC.; and DOES 1-30, inclusive
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):
JAYDEN BARR
INOTICET You have been sued. The court may decide against you without your being heard unless you Tespond within 30 days. Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a...
ee
—y
Now
__SUM-100
SUMMONS FOR COURT USE ONLY
(CITACION JUDICIAL) (G0L0 PARA USO DELACORTE)
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
Juul LABS, INC.; and DOES 1-30, inclusive *
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):\ .
ANGELICA CHEE
(NOTICE! You have been sued, The court may decide against you without your being heard unless you respond within 30 days. Read the Information
below,
You have 30 CALENDAR DAYS after this summons and legal papers are serve...
SUM-100
SUMMONS FOR COURT USE ONLY
(CITACION JUDICIAL) (SOLO PARA USO DE LA CORTE)
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
Juul LABS, INC.; and DOES 1-30, inclusive
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):
HANA CANTRAL
NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 40 days. Read the Information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a...