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KLECZEK LAW OFFICE
1 David A. Kleczek (SBN 244045)
825 Washington Street, Suite 301
2 Oakland, CA 94607
Telephone: (510) 291-4055
3 Facsimile: (510) 663-7102
david.kleczek@kleczeklaw.com 10/9/2020
4
Attorneys for the Plaintiff
5 TALITA QUEIROS
6
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
7
8 IN AND FOR THE COUNTY OF SAN MATEO
9 TALITA QUEIROS, ) Case No. 18-CIV-03870
)
10 Plaintiff, ) ASSIGNED FOR ALL PURPOSES TO
)
11 vs. )
) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF
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) PLAINTIFF’S MOTION FOR NEW
TARGET CORPORATION, DANE ) TRIAL AS TO DANE TECHNOLOGIES,
13
) INC.
TECHNOLOGIES, INC., AMIGO MOBILITY, )
14
) Date: November 4, 2020
FREDERICK TATE, and DOES 1 through 30, )
15 Time: 1:30 p. m.
) Judge: TBA
inclusive, )
16 Dept.: Law and Motion
Defendants. )
17 ) FAC Filed: November 14, 2017
) Trial Date: To Be Reset
18 )
)
19 )
)
20 )
)
21 )
)
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23 I. INTRODUCTION
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“A new trial is a re-examination of an issue of fact in the same court after a trial and
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decision by a jury, court, or referee.” C.C.P. §656. Plaintiff seeks a review of the Order granting
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Dane Technologies, Inc.’s (hereinafter “Dane”) motion for summary judgment on all counts.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
TRIAL AS TO DANE TECHNOLOGIES
Plaintiff raises two discrete issues which should be re-examined, and in Plaintiff’s opinion, lead a
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2 reversal of the court’s prior decision granting summary judgment to Dane.
3 This case involves a sliced Achilles tendon to Plaintiff Talita Queiros (hereinafter
4 “Queiros”) caused by a broken smartKART electric shopping cart located at the Target retail
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store in Daly City, California. Dane manufactured, designed, created the warnings, and
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maintained the smartKART’s located at the Daly City store at the time of the incident.
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However, on September 4, 2020 when Judge Greenberg heard this matter, we did not
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have the benefit of knowing that Dane maintained the Daly City smartKART’s. The court’s
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10 September 16, 2020 Order held that because there was no evidence that Dane performed “regular
11 inspection[s], maintenance, or repair of the shopping carts” Queiros could not establish Dane
12 exhibited adequate control over the property, or owed a duty to Queiros.
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Queiros’ operative complaint against Dane alleges premises liability, negligence, and
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strict products liability (including failure to warn, and negligent design). The September 16,
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2020 Order only addresses premises liability and design defect but does not address ordinarily
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17 negligence and failure to warn. Queiros maintains that Dane is liable under a negligence theory
18 because it had a duty to maintain the smartKART. Dane is liable under a failure to warn theory
19 because Dane failed to warn Target to take the smartKART out of service if it was missing the
20 asset protection bumper.1
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Queiros first requests a re-examination based on newly discovered facts, C.C.P. §657(4).
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On September 10, 2020 Target employee Frederick Tate, the property manager at the Daly City
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Target, testified at his deposition that Dane performed quarterly preventative maintenance
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The asset protection bumper was a big topic in the design defect discussion in the September 16, 2020 Order. The
asset protection bumper had come off the smartKART and was in service at the Daly City Target Store at the time of
27 the incident.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
TRIAL AS TO DANE TECHNOLOGIES
and inspections of all the smartKARTs located at the Daly City Target. The hearing on
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2 Dane’s motion for summary judgment was September 4, 2020, six days before the deposition, so
3 the court, nor Queiros counsel, knew of the quarterly inspections.
4 Dane and Target denied the existence of such inspections in sworn interrogatory
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responses and/or deposition testimony. Queiros counsel exhibited due diligence in obtaining the
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deposition of Frederick Tate, which will be demonstrated in the Declarations of David A.
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Kleczek and H. Paul Bryant, Queiros’ counsel. Queiros counsel made repeated and diligent
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requests to Target since December 2019 for Mr. Tate’s deposition. Target repeatedly cancelled
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10 and delayed. Meanwhile Target and Dane both asserted that Dane did not have any pro-active
11 maintenance duties under sworn statements. Queiros counsel had not reason to suspect they
12 were lying, and was completely surprised by Mr. Tate’s testimony when he said that Dane came
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in on at least a quarterly basis in 2016 on their own volition to perform preventative
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maintenance, inspections, and repairs.
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The second reason to re-examine the claims against Dane is the Court’s findings that
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17 Dane did not owe a duty to Queiros under either a failure to warn theory, a negligence theory,
18 nor a premises liability theory. C.C.P. §657(7). Under the failure to warn theory, Dane does
19 owe a duty to warn users/consumers of the dangers of its products, and damages that are
20 sustained even by third parties are recoverable against the manufacturer. Based on what we
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know now, and even what we knew when Dane’s summary judgement was heard, Dane
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designed, manufactured, maintained, repaired, and inspected the smartKARTs at the Daly City
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Target quarterly. They clearly exhibited a high degree of control over the smartKARTs, and the
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25 caselaw is clear and without question that Dane owes a duty to warn Target (the consumer) of
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
TRIAL AS TO DANE TECHNOLOGIES
the latent dangers of the smartKART, and Dane owes a duty to maintain, inspect, and repair the
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2 smartKARTs. Civil Code §1714 states:
3 Everyone is responsible, not only for the result of his or her willful acts, but also
for an injury occasioned to another by his or her want of ordinary care or skill in
4 the management of his or her property or person, except so far as the latter has,
willfully or by want of ordinary care, brought the injury upon himself or herself.
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6 The phrase “injury occasioned to another” within this section is the injury to the person
7 who is the victim of the actor's negligence. Buckley v. Chadwick (1955) 45 Cal.2d 183, 288.
8 The statutory basis for the Motion for New Trial is C.C.P. §657(4) and (7). Plaintiff is
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not rehashing every issue raised in Dane’s motion for summary judgment but does not waive any
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prior arguments made for purposes of an appeal, if necessary. The discrete focus of this motion
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is that new evidence was discovered which precludes summary judgment on the premise
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liability/negligence claims, and there was an incorrect finding of law as to Dane’s duty relating
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14 to the products liability claims.
15 II. NEW EVIDENCE DISCOVERED DAYS AFTER THE HEARING ON
DANE’S MOTION FOR SUMMARY JUDGEMENT WHICH
16 DEMONSTRATES THAT DANE DID QUARTERY PREVENTATIVE
17 MAINTENANCE, INSPECTIONS, AND REPAIRS OF THE SMARTKART
WHICH STRUCK PLAINTIFF
18
Code of Civil Procedure 657(4) instructs reconsideration of a verdict where new evidence
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is discovered that is material to the issues in the case. “The essential elements which must be
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21 established are (1) the evidence is newly discovered; (2) reasonable diligence has been exercised
22 in its discovery and production; and (3) the evidence is material to the movant's case.” Schultz v.
23 Mathias (1970) 3 Cal.App.3d 904, 909–910, 83 Cal.Rptr. 888.
24 There is new evidence, namely that Dane in fact performed regular preventative
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maintenance, inspections, and repairs of the smartKART. As is demonstrated below and in
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counsels’ declarations, due diligence has been exercised in discovering the evidence. Finally, the
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
TRIAL AS TO DANE TECHNOLOGIES
new evidence is without question material to the issues in this case, as the court specifically
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2 relied upon the lack of a regular service schedule with Dane as the basis for granting their motion
3 for summary judgement.
4 Frederick Tate is a Target employee who was the property and facility manager of the
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Daly City Target store for many years, including the entire year of 2016. Tate Dep. 34:5-7. As
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of the date of his deposition a few weeks ago, Mr. Tate had worked for Target for 36 years. Tate
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Dep. 9:23:25.
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In his deposition on September 10, 2020, Mr. Tate testified that Dane “would send a
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10 representative – a tech” on a quarterly basis in 2016 to perform preventative maintenance. Tate
11 Dep. 34:8 – 36:6.
12 “Okay. So I am the property manager and the facility manager. So when they send a
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vendor out to do a quarterly check on a PM [preventative maintenance] of a device or either the
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shopping carts, he reports to me. Let me know that he’s there. He [the Dane tech] is to go in
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detail through the whole electric shopping cart. And if he found anything or he finds anything,
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17 he would report that to me, and he would return to repair it until he is complete with his job.”
18 Tate Dep. 34:8 – 36:6.
19 In contrast, Dane presented undisputed evidence for the motion for summary judgment
20 that Dane DID NOT do any preventative maintenance. Plaintiff had no evidence at that time to
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dispute Dane’s assertions that they did not do any regular preventative maintenance, inspections,
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or repairs. Target likewise failed to identify any of the inspections by Dane in verified responses
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to special interrogatories. Target was asked the following:
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
TRIAL AS TO DANE TECHNOLOGIES
“State the date and time when the electric shopping cart which struck plaintiff was last
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2 inspected by YOU before the INCIDENT and IDENTIFY each person who performed the
3 inspection.” Target responded:
4 “Responding party does not know which electric cart allegedly struck plaintiff and thus
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cannot state when “that cart” was last inspected.” Defendant Target Corporation’s Responses to
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Plaintiff’s Special Interrogatories, Set One, Special Interrogatory 7. As it turns out, there were
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only 4 smartKART’s at the Daly City Target, and they were all inspected with quarterly
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preventative maintenance and repairs conducted by Dane. Target’s response was disingenuous
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10 at best, and if they had done any research would have discovered Dane did regular inspections.
11 Target also was asked:
12 “If YOU had a policy requiring regular electric shopping carts inspections at the time of
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the INCIDENT, IDENTIFY any PERSONS who were responsible at that time for determining if
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the inspections were performed as required.” Target responded:
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“Property Maintenance Technician Frederick Tate.”
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17 Dane’s responses in verified discovery responses to the question of regular maintenance
18 was “Responding Party was not responsible for regular inspection, maintenance, or repair of the
19 electric shopping carts supplied to Target.”
20 Target did not identify Dane as performing quarterly preventative maintenance and
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repairs, which as it turns out is what Dane was doing in 2016. Mr. Tate clearly testified that
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Dane would come every quarter in 2016 to perform preventative maintenance, inspections, and
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repairs.
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25 The September 16 Order granting summary judgment should be reversed because this
26 new evidence clearly demonstrates that Dane had a duty to maintain and repair the smartKART
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
TRIAL AS TO DANE TECHNOLOGIES
which struck Queiros, and that duty to inspect and repair on a quarterly basis was performed
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2 negligently resulting in the injury to Queiros.
3 There is also evidence that was known to Queiros before the hearing but did not appear to
4 be material until after this new information came to light. Once it was discovered that Dane was
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in fact responsible for repair, inspection, and maintenance of the smartKART, the fact that the
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asset protection bumper wheel was still missing, and the smartKART was still in use one month
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after this incident is evidence of shoddy service by Dane.
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One month after the injury to Queiros, her father went back to the Daly City Target to
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10 inspect the electric shopping carts. He found that the smartKART that injured Queiros was still
11 in service, and still broken, ONE MONTH AFTER THE INCIDENT. Jose R. De Queiros Dep.
12 19:3-15. While not material before the hearing on Dane’s motion for summary judgment, now
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that we know that Dane was supposed to come out quarterly, the fact that the smartKART was
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still broken and in service a month later is circumstantial evidence that Dane was negligent.
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III. COUNSEL ACTED WITH DILIGENCE IN SEEKING THE DEPOSITION OF
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17 FREDERICK TATE
18 In this case Queiros counsel had used diligence in conducting discovery in this case.
19 Target and Dane both claimed in deposition testimony (Dane PMQ) and verified discovery
20 responses (Target Responses to Special Interrogatories, Dane Responses to Special
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Interrogatories) that Dane only came to the Daly City Target store to repair the smartKARTs at
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the direction of Target. Target expressly denied that anyone but Frederick Tate inspected the
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smartKART before the incident. Queiros counsel was misled about the arrangement between
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25 Dane and Target and had no reason to suspect they were lying.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
TRIAL AS TO DANE TECHNOLOGIES
Notwithstanding these misrepresentations, in Queiros counsel acted diligently in pursing
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2 the deposition of Frederick Tate. In the fall of 2019, Target agreed to produce Frederick Tate
3 through Target’s counsel, and in fact represented Frederick Tate at his deposition. In December
4 2019, after meeting and conferring with Target’s counsel for dates, Plaintiff served notice of
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deposition for Frederick Tate for January 28, 2020. On January 27, 2020, Target’s counsel
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unilaterally canceled the deposition because she could not “connect” with the witness. On
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January 28, 2020, February 1, 2020 and February 4, 2020, Queiros counsel called and emailed
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Target’s counsel to reschedule the Tate deposition. The deposition was rescheduled by
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10 agreement of the parties to April 8, 2020. On April 2, 2020, Target’s counsel emailed again
11 unilaterally cancelling the Tate deposition, citing “Target’s frontline need for all hands on deck
12 to provide supplies to the public …”. On April 28, 2020 Queiros counsel sought to get a new
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date from Target’s counsel for Mr. Tate’s deposition. The efforts to take Mr. Tate’s deposition
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continued through August 2020 when finally Target provided September 10, 2020 as a date for
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Mr. Tate. Since Target had already stated that Mr. Tate was the only person to have performed
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17 any type of preventative maintenance, Queiros counsel had no reason to suspect the bombshell
18 testimony from Mr. Tate that Dane in fact came in quarterly to perform preventative
19 maintenance, repairs and inspections of the smartKARTS.
20 IV. DANE IS LIABLE UNDER A STRICT LIABILITY FAILURE TO WARN
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THEORY WHERE THE FAILURE TO WARN WAS TO TARGET AND THE
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INJURY SUSTAINED WAS TO QUEIROS, TARGET’S CUSTOMER
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“A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or
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25 design of its product causes injury while the product is being used in a reasonably foreseeable
26 way.” Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
TRIAL AS TO DANE TECHNOLOGIES
The CACI Jury Verdicts are instructive in the elements of failure to warn. CACI 1205
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2 states:
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1205. Strict Liability—Failure to Warn—Essential Factual Elements
4 [Name of plaintiff] claims that the [product] lacked sufficient [instructions] [or]
[warning of potential [risks/side effects/allergic reactions]].
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To establish this claim, [name of plaintiff] must prove all of the following:
6 1. That [name of defendant] [manufactured/distributed/sold] the [product];
2. That the [product] had potential [risks/side effects/allergic reactions] that were
7 [known/ [or] knowable in light of the [scientific/ [and] medical] knowledge that
was generally accepted in the scientific community] at the time of
8 [manufacture/distribution/sale];
3. That the potential [risks/side effects/allergic reactions] presented a substantial
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danger when the [product] is used or misused in an intended or reasonably
10 foreseeable way;
4. That ordinary consumers would not have recognized the potential [risks/side
11 effects/allergic reactions];
5. That [name of defendant] failed to adequately warn [or instruct] of the
12 potential [risks/side effects/allergic reactions];
6. That [name of plaintiff] was harmed; and
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7. That the lack of sufficient [instructions] [or] [warnings] was a substantial factor
14 in causing [name of plaintiff]’s harm.
15 The elements, as outlined in CACI 1205 do not limit recovery to the purchaser of
16 the goods. Anyone who is a foreseeable user of the product is entitled to sue the
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manufacture for failure to warn. In this case, Dane should have warned Target of the
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dangers, and the failure to due is a breach of Dane’s duties to foreseeable users, Target
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customers.
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21 “To make a prima facie case, the plaintiff has the initial burden of producing evidence
22 that the plaintiff was injured while the product was being used in an intended or reasonably
23 foreseeable manner. If this prima facie burden is met, the burden of proof shifts to the defendant
24 to prove that the plaintiff’s injury resulted from a misuse of the product.” Perez v. VAS S.p.A.
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(2010) 188 Cal.App.4th 658, 678. “Thus, manufacturers have a duty to warn consumers about
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the hazards inherent in their products. The purpose of requiring adequate warnings is to inform
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
TRIAL AS TO DANE TECHNOLOGIES
consumers about a product’s hazards and faults of which they are unaware, so that the consumer
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2 may then either refrain from using the product altogether or avoid the danger by careful use.”
3 Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.546. In this case, had Dane
4 warned Target to take the smartKART out of service, Target would have been able to “refrain
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from using the product altogether or avoid the danger by careful use.” Instead, Target left the
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broken smartKART in service to be used by its customers.
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“[T]he warning requirement is not limited to unreasonably or unavoidably dangerous
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products. Rather, directions or warnings are in order where reasonably required to prevent the
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10 use of a product from becoming unreasonably dangerous. It is the lack of such a warning which
11 renders a product unreasonably dangerous and therefore defective.” Gonzales v. Carmenita Ford
12 Truck Sales, Inc. (1987) 192 Cal.App.3d 1143, 1151. The duty to warn applies to all entities in a
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product's chain of distribution. Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171
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Cal.App.4th 564, 575.
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V. DANE HAD A DUTY TO INSPECT, PERFORM PREVENTATIVE
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17 MAINTENANCE, AND REPAIR THE smartKART IN QUESTION.
18 [T]he major [considerations] are the foreseeability of harm to the plaintiff, the
degree of certainty the plaintiff suffered injury, the closeness of the connection
19 between the defendant's conduct and the injury suffered, the moral blame attached
to the defendant's conduct, the policy of preventing future harm, the extent of the
20 burden to the defendant and consequences to the community of imposing a duty
21 to exercise care with resulting liability for breach, and the availability, cost, and
prevalence of insurance for the risk involved
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In deciding the question of foreseeability in the context of legal duty, “a court's
23 task—in determining ‘duty’—is not to decide whether a particular plaintiff's
injury was reasonably foreseeable in light of a particular defendant's conduct, but
24 rather to evaluate more generally whether the category of negligent conduct at
25 issue is sufficiently likely to result in the kind of harm experienced that liability
may appropriately be imposed on the negligent party.”
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Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1838-1839.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
TRIAL AS TO DANE TECHNOLOGIES
1
2 In the case involving Dane, they are experts in electric shopping carts. They provide
3 these shopping carts to Targets throughout the country. They know that Target customers are
4 going to use their smartKARTs in busy Target stores throughout the country.
5
Jaehne v. Pacific Tel. Tel. Co., 105 Cal. App. 2d 683 (1951) is a case on point. In
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Jaehne, the Defendant did the maintenance and repair of a switchboard that was used by
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Plaintiff. Plaintiff was a third party user of the switchboard. The Appellate Court held that the
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there were facts sufficient that a jury could find the Defendant liable were the “evidence was
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10 such that a jury could reasonably infer that defendant failed in its duty, that it was negligent in its
11 maintenance of the switchboard, and that its negligence in that respect was the proximate cause
12 of the injuries sustained by the Plaintiff. Id. at 168. Plaintiff “was not required to prove what
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caused the injury to the point of demonstration. Probability is all the law demands.” Id. at 168.
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One who undertakes to furnish an appliance for the use of others ordinarily
15 assumes a duty to furnish a proper and reasonably safe appliance, and is liable for
injuries which may result to one using the appliance from his negligence.
16 Citations omitted. A person in control of an instrumentality on the property of
17 another which may cause injury, owes to persons rightfully using the
instrumentality the duty of inspecting it to see that it is in a reasonably safe
18 condition. Polk v. City of Los Angeles, 26 Cal.2d 519, 525, 159 P.2d 931; 65
C.J.S., Negligence, § 87, page 596. There was abundant evidence that defendant
19 knew, or should have known, the condition of the switchboard. Whether
defendant was negligent was a question of fact. Butcher v. Queen City Iron &
20 Metal Co., supra, 99 Cal.App.2d 25, 27, 221 P.2d 265.
21
Jaehne v. Pacific Tel. & Tel. Co. (1951) 105 Cal.App.2d 683, 687–688 (emphasis
22 added).
23 Just as in Jaehne the Defendant was responsible for the maintenance and repair of the
24 switchboard, and liable to the Plaintiff, Dane is responsible for the maintenance and
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repair of the smartKART, and injuries to Queiros.
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VI. CONCLUSION
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
TRIAL AS TO DANE TECHNOLOGIES
The new evidence in this case is a complete contradiction to everything Target and Dane
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2 were claiming prior to the deposition of Frederick Tate. The new evidence was
3 discovered late despite the due diligence of counsel. The new evidence proves that Dane
4 conducted regular preventative maintenance, inspection, and repairs of the smartKART
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that injured Queiros. As such, they owed a duty to her, and are responsible for her
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injuries if the jury finds that they breached that duty. The facts in this case, especially in
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light of the new evidence, is enough to send this matter to the jury. As such, Plaintiff
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requests this court reverse it prior order granting Dane summary judgement, and any
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10 other relief deemed just and fair.
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Dated: October 9, 2020
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15 KLECZEK LAW OFFICE
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By:
17 David A. Kleczek
Attorney for Plaintiff
18 TALITA QUEIROS
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW
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Preview
KLECZEK LAW OFFICE 1 David A. Kleczek (SBN 244045) 825 Washington Street, Suite 301 2 Oakland, CA 94607 Telephone: (510) 291-4055 3 Facsimile: (510) 663-7102 david.kleczek@kleczeklaw.com 10/9/2020 4 Attorneys for the Plaintiff 5 TALITA QUEIROS 6 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 7 8 IN AND FOR THE COUNTY OF SAN MATEO 9 TALITA QUEIROS, ) Case No. 18-CIV-03870 ) 10 Plaintiff, ) ASSIGNED FOR ALL PURPOSES TO ) 11 vs. ) ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF 12 ) PLAINTIFF’S MOTION FOR NEW TARGET CORPORATION, DANE ) TRIAL AS TO DANE TECHNOLOGIES, 13 ) INC. TECHNOLOGIES, INC., AMIGO MOBILITY, ) 14 ) Date: November 4, 2020 FREDERICK TATE, and DOES 1 through 30, ) 15 Time: 1:30 p. m. ) Judge: TBA inclusive, ) 16 Dept.: Law and Motion Defendants. ) 17 ) FAC Filed: November 14, 2017 ) Trial Date: To Be Reset 18 ) ) 19 ) ) 20 ) ) 21 ) ) 22 23 I. INTRODUCTION 24 “A new trial is a re-examination of an issue of fact in the same court after a trial and 25 decision by a jury, court, or referee.” C.C.P. §656. Plaintiff seeks a review of the Order granting 26 Dane Technologies, Inc.’s (hereinafter “Dane”) motion for summary judgment on all counts. 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES Plaintiff raises two discrete issues which should be re-examined, and in Plaintiff’s opinion, lead a 1 2 reversal of the court’s prior decision granting summary judgment to Dane. 3 This case involves a sliced Achilles tendon to Plaintiff Talita Queiros (hereinafter 4 “Queiros”) caused by a broken smartKART electric shopping cart located at the Target retail 5 store in Daly City, California. Dane manufactured, designed, created the warnings, and 6 maintained the smartKART’s located at the Daly City store at the time of the incident. 7 However, on September 4, 2020 when Judge Greenberg heard this matter, we did not 8 have the benefit of knowing that Dane maintained the Daly City smartKART’s. The court’s 9 10 September 16, 2020 Order held that because there was no evidence that Dane performed “regular 11 inspection[s], maintenance, or repair of the shopping carts” Queiros could not establish Dane 12 exhibited adequate control over the property, or owed a duty to Queiros. 13 Queiros’ operative complaint against Dane alleges premises liability, negligence, and 14 strict products liability (including failure to warn, and negligent design). The September 16, 15 2020 Order only addresses premises liability and design defect but does not address ordinarily 16 17 negligence and failure to warn. Queiros maintains that Dane is liable under a negligence theory 18 because it had a duty to maintain the smartKART. Dane is liable under a failure to warn theory 19 because Dane failed to warn Target to take the smartKART out of service if it was missing the 20 asset protection bumper.1 21 Queiros first requests a re-examination based on newly discovered facts, C.C.P. §657(4). 22 On September 10, 2020 Target employee Frederick Tate, the property manager at the Daly City 23 Target, testified at his deposition that Dane performed quarterly preventative maintenance 24 25 26 1 The asset protection bumper was a big topic in the design defect discussion in the September 16, 2020 Order. The asset protection bumper had come off the smartKART and was in service at the Daly City Target Store at the time of 27 the incident. 28 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES and inspections of all the smartKARTs located at the Daly City Target. The hearing on 1 2 Dane’s motion for summary judgment was September 4, 2020, six days before the deposition, so 3 the court, nor Queiros counsel, knew of the quarterly inspections. 4 Dane and Target denied the existence of such inspections in sworn interrogatory 5 responses and/or deposition testimony. Queiros counsel exhibited due diligence in obtaining the 6 deposition of Frederick Tate, which will be demonstrated in the Declarations of David A. 7 Kleczek and H. Paul Bryant, Queiros’ counsel. Queiros counsel made repeated and diligent 8 requests to Target since December 2019 for Mr. Tate’s deposition. Target repeatedly cancelled 9 10 and delayed. Meanwhile Target and Dane both asserted that Dane did not have any pro-active 11 maintenance duties under sworn statements. Queiros counsel had not reason to suspect they 12 were lying, and was completely surprised by Mr. Tate’s testimony when he said that Dane came 13 in on at least a quarterly basis in 2016 on their own volition to perform preventative 14 maintenance, inspections, and repairs. 15 The second reason to re-examine the claims against Dane is the Court’s findings that 16 17 Dane did not owe a duty to Queiros under either a failure to warn theory, a negligence theory, 18 nor a premises liability theory. C.C.P. §657(7). Under the failure to warn theory, Dane does 19 owe a duty to warn users/consumers of the dangers of its products, and damages that are 20 sustained even by third parties are recoverable against the manufacturer. Based on what we 21 know now, and even what we knew when Dane’s summary judgement was heard, Dane 22 designed, manufactured, maintained, repaired, and inspected the smartKARTs at the Daly City 23 Target quarterly. They clearly exhibited a high degree of control over the smartKARTs, and the 24 25 caselaw is clear and without question that Dane owes a duty to warn Target (the consumer) of 26 27 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES the latent dangers of the smartKART, and Dane owes a duty to maintain, inspect, and repair the 1 2 smartKARTs. Civil Code §1714 states: 3 Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in 4 the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. 5 6 The phrase “injury occasioned to another” within this section is the injury to the person 7 who is the victim of the actor's negligence. Buckley v. Chadwick (1955) 45 Cal.2d 183, 288. 8 The statutory basis for the Motion for New Trial is C.C.P. §657(4) and (7). Plaintiff is 9 not rehashing every issue raised in Dane’s motion for summary judgment but does not waive any 10 prior arguments made for purposes of an appeal, if necessary. The discrete focus of this motion 11 is that new evidence was discovered which precludes summary judgment on the premise 12 liability/negligence claims, and there was an incorrect finding of law as to Dane’s duty relating 13 14 to the products liability claims. 15 II. NEW EVIDENCE DISCOVERED DAYS AFTER THE HEARING ON DANE’S MOTION FOR SUMMARY JUDGEMENT WHICH 16 DEMONSTRATES THAT DANE DID QUARTERY PREVENTATIVE 17 MAINTENANCE, INSPECTIONS, AND REPAIRS OF THE SMARTKART WHICH STRUCK PLAINTIFF 18 Code of Civil Procedure 657(4) instructs reconsideration of a verdict where new evidence 19 is discovered that is material to the issues in the case. “The essential elements which must be 20 21 established are (1) the evidence is newly discovered; (2) reasonable diligence has been exercised 22 in its discovery and production; and (3) the evidence is material to the movant's case.” Schultz v. 23 Mathias (1970) 3 Cal.App.3d 904, 909–910, 83 Cal.Rptr. 888. 24 There is new evidence, namely that Dane in fact performed regular preventative 25 maintenance, inspections, and repairs of the smartKART. As is demonstrated below and in 26 counsels’ declarations, due diligence has been exercised in discovering the evidence. Finally, the 27 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES new evidence is without question material to the issues in this case, as the court specifically 1 2 relied upon the lack of a regular service schedule with Dane as the basis for granting their motion 3 for summary judgement. 4 Frederick Tate is a Target employee who was the property and facility manager of the 5 Daly City Target store for many years, including the entire year of 2016. Tate Dep. 34:5-7. As 6 of the date of his deposition a few weeks ago, Mr. Tate had worked for Target for 36 years. Tate 7 Dep. 9:23:25. 8 In his deposition on September 10, 2020, Mr. Tate testified that Dane “would send a 9 10 representative – a tech” on a quarterly basis in 2016 to perform preventative maintenance. Tate 11 Dep. 34:8 – 36:6. 12 “Okay. So I am the property manager and the facility manager. So when they send a 13 vendor out to do a quarterly check on a PM [preventative maintenance] of a device or either the 14 shopping carts, he reports to me. Let me know that he’s there. He [the Dane tech] is to go in 15 detail through the whole electric shopping cart. And if he found anything or he finds anything, 16 17 he would report that to me, and he would return to repair it until he is complete with his job.” 18 Tate Dep. 34:8 – 36:6. 19 In contrast, Dane presented undisputed evidence for the motion for summary judgment 20 that Dane DID NOT do any preventative maintenance. Plaintiff had no evidence at that time to 21 dispute Dane’s assertions that they did not do any regular preventative maintenance, inspections, 22 or repairs. Target likewise failed to identify any of the inspections by Dane in verified responses 23 to special interrogatories. Target was asked the following: 24 25 26 27 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES “State the date and time when the electric shopping cart which struck plaintiff was last 1 2 inspected by YOU before the INCIDENT and IDENTIFY each person who performed the 3 inspection.” Target responded: 4 “Responding party does not know which electric cart allegedly struck plaintiff and thus 5 cannot state when “that cart” was last inspected.” Defendant Target Corporation’s Responses to 6 Plaintiff’s Special Interrogatories, Set One, Special Interrogatory 7. As it turns out, there were 7 only 4 smartKART’s at the Daly City Target, and they were all inspected with quarterly 8 preventative maintenance and repairs conducted by Dane. Target’s response was disingenuous 9 10 at best, and if they had done any research would have discovered Dane did regular inspections. 11 Target also was asked: 12 “If YOU had a policy requiring regular electric shopping carts inspections at the time of 13 the INCIDENT, IDENTIFY any PERSONS who were responsible at that time for determining if 14 the inspections were performed as required.” Target responded: 15 “Property Maintenance Technician Frederick Tate.” 16 17 Dane’s responses in verified discovery responses to the question of regular maintenance 18 was “Responding Party was not responsible for regular inspection, maintenance, or repair of the 19 electric shopping carts supplied to Target.” 20 Target did not identify Dane as performing quarterly preventative maintenance and 21 repairs, which as it turns out is what Dane was doing in 2016. Mr. Tate clearly testified that 22 Dane would come every quarter in 2016 to perform preventative maintenance, inspections, and 23 repairs. 24 25 The September 16 Order granting summary judgment should be reversed because this 26 new evidence clearly demonstrates that Dane had a duty to maintain and repair the smartKART 27 28 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES which struck Queiros, and that duty to inspect and repair on a quarterly basis was performed 1 2 negligently resulting in the injury to Queiros. 3 There is also evidence that was known to Queiros before the hearing but did not appear to 4 be material until after this new information came to light. Once it was discovered that Dane was 5 in fact responsible for repair, inspection, and maintenance of the smartKART, the fact that the 6 asset protection bumper wheel was still missing, and the smartKART was still in use one month 7 after this incident is evidence of shoddy service by Dane. 8 One month after the injury to Queiros, her father went back to the Daly City Target to 9 10 inspect the electric shopping carts. He found that the smartKART that injured Queiros was still 11 in service, and still broken, ONE MONTH AFTER THE INCIDENT. Jose R. De Queiros Dep. 12 19:3-15. While not material before the hearing on Dane’s motion for summary judgment, now 13 that we know that Dane was supposed to come out quarterly, the fact that the smartKART was 14 still broken and in service a month later is circumstantial evidence that Dane was negligent. 15 III. COUNSEL ACTED WITH DILIGENCE IN SEEKING THE DEPOSITION OF 16 17 FREDERICK TATE 18 In this case Queiros counsel had used diligence in conducting discovery in this case. 19 Target and Dane both claimed in deposition testimony (Dane PMQ) and verified discovery 20 responses (Target Responses to Special Interrogatories, Dane Responses to Special 21 Interrogatories) that Dane only came to the Daly City Target store to repair the smartKARTs at 22 the direction of Target. Target expressly denied that anyone but Frederick Tate inspected the 23 smartKART before the incident. Queiros counsel was misled about the arrangement between 24 25 Dane and Target and had no reason to suspect they were lying. 26 27 28 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES Notwithstanding these misrepresentations, in Queiros counsel acted diligently in pursing 1 2 the deposition of Frederick Tate. In the fall of 2019, Target agreed to produce Frederick Tate 3 through Target’s counsel, and in fact represented Frederick Tate at his deposition. In December 4 2019, after meeting and conferring with Target’s counsel for dates, Plaintiff served notice of 5 deposition for Frederick Tate for January 28, 2020. On January 27, 2020, Target’s counsel 6 unilaterally canceled the deposition because she could not “connect” with the witness. On 7 January 28, 2020, February 1, 2020 and February 4, 2020, Queiros counsel called and emailed 8 Target’s counsel to reschedule the Tate deposition. The deposition was rescheduled by 9 10 agreement of the parties to April 8, 2020. On April 2, 2020, Target’s counsel emailed again 11 unilaterally cancelling the Tate deposition, citing “Target’s frontline need for all hands on deck 12 to provide supplies to the public …”. On April 28, 2020 Queiros counsel sought to get a new 13 date from Target’s counsel for Mr. Tate’s deposition. The efforts to take Mr. Tate’s deposition 14 continued through August 2020 when finally Target provided September 10, 2020 as a date for 15 Mr. Tate. Since Target had already stated that Mr. Tate was the only person to have performed 16 17 any type of preventative maintenance, Queiros counsel had no reason to suspect the bombshell 18 testimony from Mr. Tate that Dane in fact came in quarterly to perform preventative 19 maintenance, repairs and inspections of the smartKARTS. 20 IV. DANE IS LIABLE UNDER A STRICT LIABILITY FAILURE TO WARN 21 THEORY WHERE THE FAILURE TO WARN WAS TO TARGET AND THE 22 INJURY SUSTAINED WAS TO QUEIROS, TARGET’S CUSTOMER 23 “A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or 24 25 design of its product causes injury while the product is being used in a reasonably foreseeable 26 way.” Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560. 27 28 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES The CACI Jury Verdicts are instructive in the elements of failure to warn. CACI 1205 1 2 states: 3 1205. Strict Liability—Failure to Warn—Essential Factual Elements 4 [Name of plaintiff] claims that the [product] lacked sufficient [instructions] [or] [warning of potential [risks/side effects/allergic reactions]]. 5 To establish this claim, [name of plaintiff] must prove all of the following: 6 1. That [name of defendant] [manufactured/distributed/sold] the [product]; 2. That the [product] had potential [risks/side effects/allergic reactions] that were 7 [known/ [or] knowable in light of the [scientific/ [and] medical] knowledge that was generally accepted in the scientific community] at the time of 8 [manufacture/distribution/sale]; 3. That the potential [risks/side effects/allergic reactions] presented a substantial 9 danger when the [product] is used or misused in an intended or reasonably 10 foreseeable way; 4. That ordinary consumers would not have recognized the potential [risks/side 11 effects/allergic reactions]; 5. That [name of defendant] failed to adequately warn [or instruct] of the 12 potential [risks/side effects/allergic reactions]; 6. That [name of plaintiff] was harmed; and 13 7. That the lack of sufficient [instructions] [or] [warnings] was a substantial factor 14 in causing [name of plaintiff]’s harm. 15 The elements, as outlined in CACI 1205 do not limit recovery to the purchaser of 16 the goods. Anyone who is a foreseeable user of the product is entitled to sue the 17 manufacture for failure to warn. In this case, Dane should have warned Target of the 18 dangers, and the failure to due is a breach of Dane’s duties to foreseeable users, Target 19 customers. 20 21 “To make a prima facie case, the plaintiff has the initial burden of producing evidence 22 that the plaintiff was injured while the product was being used in an intended or reasonably 23 foreseeable manner. If this prima facie burden is met, the burden of proof shifts to the defendant 24 to prove that the plaintiff’s injury resulted from a misuse of the product.” Perez v. VAS S.p.A. 25 (2010) 188 Cal.App.4th 658, 678. “Thus, manufacturers have a duty to warn consumers about 26 the hazards inherent in their products. The purpose of requiring adequate warnings is to inform 27 28 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES consumers about a product’s hazards and faults of which they are unaware, so that the consumer 1 2 may then either refrain from using the product altogether or avoid the danger by careful use.” 3 Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.546. In this case, had Dane 4 warned Target to take the smartKART out of service, Target would have been able to “refrain 5 from using the product altogether or avoid the danger by careful use.” Instead, Target left the 6 broken smartKART in service to be used by its customers. 7 “[T]he warning requirement is not limited to unreasonably or unavoidably dangerous 8 products. Rather, directions or warnings are in order where reasonably required to prevent the 9 10 use of a product from becoming unreasonably dangerous. It is the lack of such a warning which 11 renders a product unreasonably dangerous and therefore defective.” Gonzales v. Carmenita Ford 12 Truck Sales, Inc. (1987) 192 Cal.App.3d 1143, 1151. The duty to warn applies to all entities in a 13 product's chain of distribution. Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 14 Cal.App.4th 564, 575. 15 V. DANE HAD A DUTY TO INSPECT, PERFORM PREVENTATIVE 16 17 MAINTENANCE, AND REPAIR THE smartKART IN QUESTION. 18 [T]he major [considerations] are the foreseeability of harm to the plaintiff, the degree of certainty the plaintiff suffered injury, the closeness of the connection 19 between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the 20 burden to the defendant and consequences to the community of imposing a duty 21 to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved 22 In deciding the question of foreseeability in the context of legal duty, “a court's 23 task—in determining ‘duty’—is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but 24 rather to evaluate more generally whether the category of negligent conduct at 25 issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” 26 Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1838-1839. 27 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES 1 2 In the case involving Dane, they are experts in electric shopping carts. They provide 3 these shopping carts to Targets throughout the country. They know that Target customers are 4 going to use their smartKARTs in busy Target stores throughout the country. 5 Jaehne v. Pacific Tel. Tel. Co., 105 Cal. App. 2d 683 (1951) is a case on point. In 6 Jaehne, the Defendant did the maintenance and repair of a switchboard that was used by 7 Plaintiff. Plaintiff was a third party user of the switchboard. The Appellate Court held that the 8 there were facts sufficient that a jury could find the Defendant liable were the “evidence was 9 10 such that a jury could reasonably infer that defendant failed in its duty, that it was negligent in its 11 maintenance of the switchboard, and that its negligence in that respect was the proximate cause 12 of the injuries sustained by the Plaintiff. Id. at 168. Plaintiff “was not required to prove what 13 caused the injury to the point of demonstration. Probability is all the law demands.” Id. at 168. 14 One who undertakes to furnish an appliance for the use of others ordinarily 15 assumes a duty to furnish a proper and reasonably safe appliance, and is liable for injuries which may result to one using the appliance from his negligence. 16 Citations omitted. A person in control of an instrumentality on the property of 17 another which may cause injury, owes to persons rightfully using the instrumentality the duty of inspecting it to see that it is in a reasonably safe 18 condition. Polk v. City of Los Angeles, 26 Cal.2d 519, 525, 159 P.2d 931; 65 C.J.S., Negligence, § 87, page 596. There was abundant evidence that defendant 19 knew, or should have known, the condition of the switchboard. Whether defendant was negligent was a question of fact. Butcher v. Queen City Iron & 20 Metal Co., supra, 99 Cal.App.2d 25, 27, 221 P.2d 265. 21 Jaehne v. Pacific Tel. & Tel. Co. (1951) 105 Cal.App.2d 683, 687–688 (emphasis 22 added). 23 Just as in Jaehne the Defendant was responsible for the maintenance and repair of the 24 switchboard, and liable to the Plaintiff, Dane is responsible for the maintenance and 25 repair of the smartKART, and injuries to Queiros. 26 VI. CONCLUSION 27 28 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES The new evidence in this case is a complete contradiction to everything Target and Dane 1 2 were claiming prior to the deposition of Frederick Tate. The new evidence was 3 discovered late despite the due diligence of counsel. The new evidence proves that Dane 4 conducted regular preventative maintenance, inspection, and repairs of the smartKART 5 that injured Queiros. As such, they owed a duty to her, and are responsible for her 6 injuries if the jury finds that they breached that duty. The facts in this case, especially in 7 light of the new evidence, is enough to send this matter to the jury. As such, Plaintiff 8 requests this court reverse it prior order granting Dane summary judgement, and any 9 10 other relief deemed just and fair. 11 Dated: October 9, 2020 12 13 14 15 KLECZEK LAW OFFICE 16 By: 17 David A. Kleczek Attorney for Plaintiff 18 TALITA QUEIROS 19 20 21 22 23 24 25 26 27 28 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL AS TO DANE TECHNOLOGIES