Motion-Secondary: Mead, Trever vs. Bishop's Entertainment Enterprises, LLC

On May 17, 2018 a Motion-Secondary was filed involving a dispute between Bishop'S Entertainment Enterprises, Llc, Bishop'S Pumpkin Farm, Inc., Mobile Rock, Inc. Doe 3, Thrillworks, Inc, Trever Mead, and Bishop'S Entertainment Enterprises, Llc, Bishop'S Pumpkin Farm, Inc. Doe 1, Mobile Rock, Inc. Doe 3, Thrill Works, Inc Doe 2, for civil in the District Court of Placer County.

Preview
Ann M. Asiano, Esq., SBN 94891
Barbara R. Adams, Esq., SBN 99231
SUPERIOR
Nathan L. Putney, Esq., SBN 325339
COUNGO
TY
URT
OFPLAAGORN EIA
WN

CLARK HILL LLP
One Embarcadero Center, Suite 400 FEB 28 2020 . >
WwW

San Francisco, CA 94111
Telephone: (415) 984-8500 JAKE CHATT
eR

EXECUTIVE OFFICER
Facsimile: (415) 984-8599 y: C. Vall & OLEp
AAsiano@ClarkHill.com an:Brown, Beputy
WN

BAdams@ClarkHill.com
NPutney@ClarkHill.com
DW

MOBILE ROCK, INC.
NN

SUPERIOR COURT OF THE STATE OF CALIFORNIA
Oo

COUNTY OF PLACER
Oo

10
11 TREVER MEAD, Case No. SCV0041191
12 . . Plaintiff,
DEFENDANT MOBILE ROCK, INC.’S
13 V. MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
14 BISHOP’S ENTERTAINMENT FOR SUMMARY JUDGMENT OR, IN THE
ENTERPRISES, LLC; BISHOP’S PUMPKIN ALTERNATIVE, FOR SUMMARY
15 FARM, INC., a California Corporation; ADJUDICATION
THRILL WORKS, INC. dba EXTREME
16 ENGINEERING, a California corporation;
MOBILE ROCK, INC., a California
17 corporation; and DOES 4-50, Date: May 15, 2020
Time: 8:30 a.m.
18 Defendants. Dept.: 31
19 Complaint filed: May 17, 2018
Third Amended Complaint filed: April 12,2019
20 AND RELATED CROSS-ACTIONS.
Trial Date: June 15, 2020

21
22
23
FAX

24
25
BY

26
27
28

1
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA
TABLE OF CONTENTS

PAGE

INTRODUCTION asieanssssssss rermascssennnematniunmnmmnennnmommane 5

STATEMENT OF FACTS AND SUMMARY OF ARGUMENT. ........cscesseceeseceeeoes
6

A. Statement of Facts.........ccccscscecscscecscecececsnscevetecceecscessenccessesssesscteesseeeeeses
6

FR, SONY OF Bie escearaxcremecentence
os0nsdraamnevan cemitdvaneneesemenedbeenesibenivétees
8

U0. APPLICABLE Lit Wert oncssmmemscsececesaxancnmesseaweriossanedaxssncesmasxesamenneawtienressanns9

A. Summary Indoment /Adjudication Principles cccscsasecsinncesnvmseveveveesvensedsbwesnnsts
9

B.. Strict Proditets LAG BY. sscscasccessxnsscnssvevcsusennaunyeecespwngessaneesecanancendesdeoeanin
10

C. Negligent Products Liability.......... re re ee 12

ARG UME gecmquscswsesamsvenenamcanestsecavisorsewanenwenss
scwneawednwavenmemneesendacabaesb
aie 13

A. Plaintiff Cannot Establish Strict Products Liability as to Mobile Rock............... 13

B. Plaintiff Cannot Establish Negligent Liability as to Mobile Rock..............006 ecko

C. Because There is No Liability Under Either Theory, Mobil Rock

Should Be Granted Summary Judgment............. setaceseeseseeceneeresseeaesreneeeenes
3

ALTERNATIVELY, MOBILE ROCK SHOULD BE GRANTED SUMMARY

ADJUDICATION ON THE STRICT PRODUCT LIABILITY CLAIM.............206 15

ALTERNATIVELY, MOBILE ROCK SHOULD BE GRANTED SUMMARY

ADJUDICATION ON THE CLAIM FOR NEGLIGENCE. ..........ccescscseseseeeeeeeees
15

Vil. CONCLUSION ........csscccscccsscccccccrccvescscascccvcsccsccccescccccsccecsccesscnscccereccossnces
16 FAX
BY

2
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA

ClarkHill\673
15\389603\223414787.v1-2/28/20
TABLE OF AUTHORITIES

Cases

Aguilar y.Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843.-cccsccsssssssecssssessssecsssseessnsesssnsssessesesaseseusansennanseve
sheteamtepeabe
ri
Arriaga v. Citi Capital
DD

OCT TOT Ca gi GT ses, snqzeeciessivne
cstesekctencthnccaeescheioits
nso ere msewmenneenepatenratioemeatatsss
NY

Balido v. Improved Machinery, Inc.
Oo

CTSF2 729 Cal Appi O0 G33 isssconreiaanancson
cecssecenenscacsenemamnmnaesninarencnnmnmimamneTesswesmcuraowestinn
o

Berber v.Marina Sailing, Inc.
10 (1993) 36 Cal ApAth B58, B02 siciccssss scnnecamnenerannmnnamccsanmamcanasnexnmnemasas
ann naneaianneesies

11 Bozzi v. Nordstrom, Inc.
Cy LG Ck a Fe ctr ass cevcnenrcminmcanereansemoncunnnenorertederamnaecmcecmmnsnmndiananamowenvenseranencent
i |

13 Bracisco v. Beech Aircraft
(1984) 159 Cal App.3d 1101, 1106-7...
eesssescesecssesseseecserssersesssesessesseacsssssssreassneseseesssesenaseeers
14
Chavez v .Glock, Inc.
13 (2012) 207 Cal.App.4th 1283, 1304-1305 oo...ec eeeesccseeseeceeceseessceeeesrereseesseeseeeneoees desececesaceecessees
16
Fortman v.Hemceo, Inc.
17 C1989) 211 Cal ApS 241, 251 pcncenenrnpeennenenarnenaqnesnnds
scictbadiianiedn
ceca se cietnaanananenareNmNNTN10,

18 Greenman v. Yuba Power Products, Inc.
(1963) SOCAL 20 S57,G2... nennensgansscnseegngraconansnsagantneneednnsctesndatiienns¥tbit
ssasSiniOskoRsSHesirss
eiseialpatRNeaavoKy
19
Guz v. Bechtel Nat’l, Inc.
20
C2000) ZAR CALAT SLT, SE IATB sis cnnccnyennenenncernnneneynrynnennenusniionennsingicashiltsniibais
SARA DKASES
KENNA A SEATRIOM
SHRI
21
Ortiz v.HPM,
22 (1991) 234 CaL ADS 178 icsscannnnnunnmnannanasnaxannipeampamascemaesrramamemuanenrmanrehonsen

23
FAX
Petersen v. Clay Adams, Inc.
24 (1070) 12 Cal.App.3d 1062, 1077 oe eeseeseesnseeeesseessecsscersessssecassseseseseneeeeesseeeaneneces
_eessncneanes

25 Peterson v. Superior Court
BY

(1995) 10 Cal Ath 1185, 1200-1201 sisssesssissssnesencnssnnansnsvansseccsannnensssnanevmreneonnenssenssnennesernnersciedieents
26
Tauber—Arons Auctioneers Co. v. Superior Court
ai (1980) 101 Cal. App.3d 268, 283 ....ccrcercorccesercerrenssenpsceensnensannnnisistsassidiisa
oniaiiesian
tunseonneunteassanaanannnencee
28
3
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA

ClarkHill\673
15\389603\223414787.v1-2/28/20 _
Union Bank v. Sup. Ct.
(1995) 31 Cal. App.4th 573, 590 .iccssccssssssssssscssssssssscsessesescsesecsesessesssssssassnsssnsssnsssasessnsnsesensseessesaceee
Vandermark v.Ford Motor Co.
61 Cal.2d at pp. 262-2630... eecccscesecsecsescsessssesessssssesessscsecsesesesesenesscssseseseseseeseseseseeesseaeseseseenssesseesess

Williams v.Beechnut
(1986) 185 Cal. App.3d 135, 14] ...ceccceessescssesssssseccssesssscsesscsscssssssevssescsucssscseeseessseuceceseasessusaasees
DD

Statutes
NN

Code Civ. Proc. Section 437C(C) wicssecseesssesecssecsssssscesssesesssesesssececaesecsescseesseecseseeessensseeseesteceessaesanensaees
Oo

Code Civ. Proc. Section 437c(£)(1) ..cccsecsssssssessescscscsescsesesesssseseseacsesessescscassessceceeacsusesasssasueeseseesseacees
oO

23
FAX

23
BY

28
4
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA
ClarkHill\673
15\389603\223414787.v1-2/28/20
I. INTRODUCTION

This case arises from an incident that occurred in October of 2016 when Plaintiff Trevor
WV

Mead decided to ride a zip line at the facility owned by defendant Bishop’s Pumpkin Farm (“the
WY

Pumpkin Farm” or “BPF”). The zip line went slack shortly after he was launched, causing Mr. Mead
FP

to fall some 20 to 25 feet to the ground. The zip line ride Mr. Mead was riding was owned by
wn

Bishop’s Entertainment Enterprises, LLC (“BEE”), who had a joint operating agreement with
HD

Bishop’s Pumpkin Farm.
YN

BEE, owned by Mr. Austin Bishop, had purchased the subject zip line ride, used, from Mobile

Rock, Inc.(“Mobile Rock”) in March of 2015, some 19 months before the incident. At the time of

10 purchase from Mobile Rock, BEE already owned another zip'line of the same model that it had

11 purchased from the manufacturer/designer, Extreme Engineering, months before buying the zip line

12 from Mobile Rock.

13 Plaintiff alleges that Mobile Rock isliable under theories of strictproduct liabilityand

14 negligence. (Separate Statement of Undisputed Facts, (““UMF”), UMF # 1, 2). Mobile Rock isnot

15 and has never been in the business of designing, manufacturing, selling or distritsuting zip line

16 equipment. Mobile Rock did not modify the zip lineride, aside from maintenance and improvements

17 recommended by the manufacturer, a defendant in this action. The sale of the zip line to Bishop’s

18 Entertainment Enterprises was a sale occasioned by that company going out of the zip line business.

19 BEE was trained by Extreme Engineering on safe operation of the zip line when they

20 purchased the firstzip lineride from Extreme Engineering, and Mobile Rock turned over the

21 Operations Manual when itsold the zip line ride to BEE

22 When Plaintiff Mead tried to ride the zip line on the day of the incident, the two workers

23
FAX
operating the ride mis-communicated, and he was allowed to launch when the line was not properly

24 tensioned to accept his weight, causing his fall.

25 There are no grounds for a finding of liability of Mobile Rock under either a theory of
BY

26 negligence or strict liability.

27 M1

28 MI
5
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA

ClarkHill\673
15\389603\223414787.v1-2/28/20
Yl. STATEMENT OF FACTS AND SUMMARY OF ARGUMENT

A. Statement of Facts :
Ww

On October 22, 2016, Plaintiff was a patron of a zip line ride at the defendant Bishop’s

Pumpkin Farm (“BPF” or “Pumpkin Farm”). (UMF #3). The zip line was owned and operated by

Bishop Entertainment Enterprises LLC (“BEE”) in a joint venture with BPF. (UMF #5). The
SD

accident happened when the zip line on which he was riding suddenly lost tension, causing Mr.

Bishop to fall20 to 25 feetto the ground (UMF#4).

A zip line ride consists of several parts, including a tower structure that riders climb to get to

10 the height to ride, cables on which the harnessed riders slide, and, on the lower end, awinch to keep

in tension on the ride cable (UMF#6). BEE had purchased the zip line on which Mr. Mead was riding, a

12 mobile Zippin’ Zone aka mobile Fly Wire zip line, from defendant Mobile Rock, Inc. (Mobile

13 Rock”) in March of 2015. (UMF# 7). °

14 Mobile Rock had purchased the subject zip line directly from the designer/manufacturer,

15 defendant Extreme Engineering, in 2012. (UMF#8). While Mobile Rock owned the subject zip line,

16 itperformed manufacturer recommended maintenance, and only manufacturer recommended

iy modifications tothe zip line (UMF#10). Mobile Rock and itsowner were never in the business of

18 designing, manufacturing or selling zip line equipment. (UMF# 11, 12, 13).

19 Mobile Rock sold the zip line toBEE in March of 2015 because its owner decided to get out

20 of the zip line rental business (UMF#9).
21 The mobile Zippin’ Zone zip line purchased from Mobile Rock was not BEE’s firstzip line.

23 BEE had purchased the same model from Extreme Engineering in 2014 (UMF#17). Mr. Bishop, the

23
FAX
owner of BEE, was trained by Extreme Engineering in the fall of 2014 on the operation and

24 maintenance of the zip line (UMF # 18). He also received the Operator’s Manual from Extreme

25 Engineering (UMF#19). When BEE purchased the zip line from Mobile Rock, he was given another
BY

26 copy of the Operators’ manual. ( UMF# 21).

27 From 2014 through 2016, Mr. Bishop provided training to allthe employee ride operators on

28 the safe operation of the zip line, based on the training he had received from Extreme Engineering,
6
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA

ClarkHill67315\389603\223414787.v1-2/28/20
his observation of zip line operation, and Cal-OSHA requirements. (UMF #20).

Mr. Schmeck of Mobile Rock was aware, prior to selling BEE the zip lineride, that BEE

owned and had operated the same model zip line at the Pumpkin Farm in 2014 (UMF#22), and that

the BEE employees were trained in operating the zip line. (UMF #23). Mr. Schmeck observed the
Bf

BEE correctly operating the same model of zip line he later sold to BEE. (UMF#24).
ON
BNO

While Mobile Rock owned and operated the subject zip line,it was regularly inspected and

approved by Cal OSHA (UMF#25). Cal-OSHA also regularly and approved inspected the
NSN

subject zip
line from the time BEE purchased ituntil the fall of 2016. (UMF#26). Cal OSHA never found any
ao

deficiencies. (UMF #27).
\©o

10 While Mobile Rock owned the subject zip line, itperformed the maintenance and
11 improvements recommended by Extreme Engineering. (UMF #28). Mr. Bishop was afforded the
12 opportunity and did inspect the subject zip line prior to purchase (UMF#29). Mobile Rock made no
13 representations, and BEE relied on no representations about the zip line, atthe time of purchase from

14 Mobile Rock. (UMF# 30).

15 BEE employees performed daily maintenance check of the zip line ride before itwas operated

16 that day. (UMF #31). Additionally, between the time that BEE purchased the subject zip line and the

17 date of the incident, itunderwent more thorough maintenance checks every time itwas moved to a

18 new location, through the spring and summer of 2015, the fall of 2015 at the Pumpkin Farm, the

19 several sites in the spring and summer of 2016, and the set up in the fall of 2016 atthe Pumpkin

20 Farm. (UMF’s 32 and 34). The zip line also was subjected to an annual “fine tooth comb” inspection

21 _ by Mr. Bishop twice between BEE’s purchase in March of 2015, and the accident in October of 2016.

22 (UMF #35).
There were no injuries or inadvertent release of tension on the lines while the subject zip line
FAX
23

24 was being operated by Mobile Rock from 2013 to 2015, and in the 19 months while itwas being

25 operated by BEE from March of 2015 to October of 2016 (UMF #36, 37).
BY

26 Mr. Baldizan and Mr. Bodey, employees of BEE, operated the zip line the day of Mr. Mead’s
27
accident (UMF#38). They had both been trained in operations, including on proper tensioning the
28
7
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA

ClarkHill\673
1 5\389603\2234
14787.v1-2/28/20
e ee.

zip line (UMF #39). On the day of the incident, they saw no problems with the zip line during the

maintenance check (UMF#40).

When Mr. Mead got on the ride,Mr. Bodey signaled to Mr. Baldizan that the line tension
>

would need to be increased because of his size. (UMF#41). Mr. Baldizan, however, had trouble
wm

getting the winch to tighten the line. Unfortunately, Mr. Bodey mis-construed Mr. Baldizan’s
DH

movements, and prematurely sent Mr. Mead down the zip line, causing his fall. (UMF# 42, 43).
N

Mr. Bishop had been educated about potential hazards ifthe zip wires were not properly

tensioned, including Operator Manuals received from Extreme Engineering and Mr. Schmeck.
10 (UMF#44).
11
B. Summary of Argument
12
Plaintiff has brought suit against Mobile Rock on two theories.
13
The first is“strict products liability”. That theory was created so that the companies that are
14
15 in the business of designing, manufacturing and marketing products should bear the burden of injuries

16 to Plaintiffs, even if they do not act negligently. Mobile. Rock, however, sold the subject zip line unit
17 because itwas going out of business, not because selling such equipment was itsbusiness. Itdid not
18
design, manufacture or market zip line rides, and thus, as merely an “occasional seller” isnot subject
19
to strictproduct liability.
20
The other theory of liability alleged against Mobile Rock is negligent product liability,
21
22 specifically for negligent design, manufacture, or not providing warnings about the zip line. Again,

23 Mobile Rock did not design or manufacture the zip line ride.
FAX

24 With regard to warnings, defendant BEE received both training and relevant warnings in
25 documents in 2014 from Extreme Engineering, the designer/manufacturer, when BEE purchased a
BY

26
zip line directly from Extreme Engineering. This was months before BEE purchased the subject
27
zipline from Mobile Rock, Mobile Rock was aware of that training, and did provide relevant
28
8
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA

ClarkHill\673
15\389603\2234 14787,v1-2/28/20
a

documents during the sale.

Finally, the accident occurred after years of product inspection from both Mobile Rock, while

itoperated the zip line, and BEE, in the 19 months during which it operated the zip line, from

purchase to the date of the accident. During thistime, the line was regularly and thoroughly inspected

by BEE, and inspected and approved by Cal-OSHA.

There is no evidence that a failure of Mobile Rock to provide warnings or training caused the

subject accident. Rather, the accident occurred when the two (trained) operators miscommunicated

about the readiness of the line to accept a rider, resulting in his fall.
10
I. APPLICABLE LAW
ll
A. Summary Judgment / Adjudication Principles
12
California law mandates that a “motion for summary judgment shall be granted if allthe
13
papers submitted show that there is no triable issue as to any material fact and that the moving party
14
is entitled to a judgment as a matter of law.” (Code Civ. Proc. Section 437c(c).) The purpose of the
15
summary judgment procedure “is to provide courts with a mechanism to cut through the parties’
16
pleadings in order to determine whether, despite their allegations, trialis in fact necessary to resolve
17
their dispute.” (Aguilar y. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, citation omitted
18
[summary judgment properly granted] )
19
A defendant’s showing can be made by affirmative evidence of by pointing out thatthe
20
plaintiff's discovery responses and deposition testimony are devoid of necessary facts. (Aguilar,
21
supra, Cal.4th at 853-55, citing Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 371-78.) Once a
22
defendant meets itsinitialburden, the burden shifts to the plaintiff. (Aguilar, supra, 25 Cal.4th at
23
FAX

849, citing Code Civ. Proc. Section 437c, subd. (0)(2).) To defeat summary judgment, plaintiff may
24
not rely on mere allegations or denials, but must set forth “specific facts showing a triable issue of
25
BY

material facts exists. ..” (Aguilar, supra, 25 Cal.4th at 849 (emphasis added); Union Bank v. Sup. Ct.
26
(1995) 31 Cal.App.4th 573, 590; Code Civ. Proc. Section 437c, subd. (p)(2).) Because plaintiffs
27
carry the ultimate burden of proof, they must present admissible evidence that would allow a
28
9
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA

ClarkHill\673
1 5\389603\2234
14787.v1-2/28/20
reasonable trier of fact to find in their favor by preponderance. (Aguilar, supra, 25 Cal.4th at852;
see Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755 (granting summary judgment for defendant
WD

where opposing declaration was inadmissible).) Evidence that is ambiguous, speculative or evenly
WO

balanced cannot prevent summary judgment. (Aguilar, supra, 25 Cal.4th at
F&F

855-56; Berber v.‘Marina
Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)
On

| Alternatively, as in this case, “[a] party may move for
Hn

summary adjudication as to one or
more causes of action within an action, one or more affirmative defenses,
NY

one ormore claims for
damages, or one or more issues of duty. ..” (Code Civ. Proc. Section 437c(f)(1).) A motion for
oo

summary adjudication proceeds in all procedural respects as a motion for summary judgment. (Code
10 Civ. Proc. Section 437c, subds. (a),(f)(1)-(2).)

12 B. Strict Products Liability

13 The doctrine of strictliabilityexists to shiftthe burden of injury as a result of defective
14 products from the injured party to theparties responsible for creating the defective product or putting
15
itinto the stream of commerce,
16
In Ortiz v. HPM, (1991) 234 Cal.App.3d 178, the Court noted:
17
It issettled in California that “A manufacturer isstrictly liable in tort when an article
18 he places on the market, knowing that it isto be used without inspection for defects,
proves to have a defect that causes injury to ahuman being.” (Greenman v. Yuba
19
Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897.) “The
20 purpose of strict liabilityis to ‘insure that the costs of injuries resulting from defective
products are borne by the manufacturers that put such products on the market rather
21 than by the injured persons who are powerless to protect themselves.’ [Citations.]”
(Fortman v.Hemoo, Inc. (1989) 211 Cal.App.3d 241, 251, 259 Cal.Rptr. 311.)
22 (238 Cal. App. 3d at187).
23
The Court went
FAX

on to note that the “stream of commerce” theory has. somewhat
24
broadened the doctrine of strict liability,but that:
2
BY

Itis settled in California that “A manufacturer isstrictly liable in tort when an
26 article he places on the market, knowing that itis to be used without inspection for
27 defects, proves to have a defect that causes injury to ahuman being.” (Greenman v.
Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897.)
28 “The purpose of strictliabilityis to ‘insure that the costs of injuries resulting from
10
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA

ClarkHill\673
15\389603\223414787.v1-2/28/20
defective products are borne by the manufacturers that put such products on the market
rather thanby the injured persons who are powerless to protect themselves.’
[Citations.]” (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 251, 259 Cal.Rptr.
311.) Ud).
Ww

In Ortiz, supra, the Plaintiff was injured when a piece of equipment originally owned and

operated by defendant Celanese and later sold to his employer proved defective and caused hisinjury.
DD

The Court found that Celanese was not liability under a theory of strict products liability. It stated:
SYS

Celanese established at trialthat itwas not “in the business of selling” plastic injection
molding machines. Itsuccessfully asserted that itsone time sale of
CO

the machines when
it closed itsSanta Ana operation rendered itmerely an “occasional seller,” not subject -
oO

to strict products liability. Support for this position is found in Balido v. Improved
Machinery, Inc, (1972) 29 Cal.App.3d 633, 105 Cal.Rptr. 890. (Ortiz, supra 238
10 Cal.App. 3d at 188).
11
In Arriaga v. Citi Capital (2008) 167 Cal.App.4™ 1527, the question was whether a finance
12
lessor, who had no other connection to the equipment that caused an injury to aworker, could be held
13
strictly liable in tort. While the facts of that case differ,the Court did reflect on and discuss the
14
15 theory of strict liability,noting: |

16 [I]mposition of strictliability based on thisstream of commerce or marketing
enterprise theory is not limitless, The strict liability doctrine derives from judicially
17 perceived public policy considerations, i.e.,enhancing product safety, maximizing
18 protection to the injured plaintiff, and apportioning costs among the defendants.
(Vandermark v. Ford Motor Co., supra, 61 Cal.2d at pp. 262-263, 37 Cal.Rptr. 896,
19 391 P.2d 168...Where these policy justifications are not applicable, the courts have
refused to hold the defendant strictly liable even ifthat defendant could technically be
20 viewed as a “ ‘link in the chain’ ” in getting the product to the consumer market .
(Citation Omitted).) (Arriaga, Supra at 1535.)
21
22
The Arriaga Court further, and appropriately to this case, noted that:
23
FAX

...a seller of used machinery is not strictly liable in tort,unless the seller
24 rebuilds or reconditions the product and thus assumes a role analogous to that of a
manufacturer. (Peterson y.Superior Court (1995) 10 Cal.4th 1185, 1200-1201, 43
25 Cal.Rptr.2d 836, 899 P.2d
BY

905.) A commercial dealer in used goods has no continuing
26 business relationship with the manufacturer inthe course of which that dealer can
adjust the cost of protection from strictliability. (Tauber—Arons Auctioneers Co. y.
27 Superior Court (1980) 101 Cal.App.3d 268, 283, 161 Cal.Rptr. 789.)
Arriaga, supra at 1540.
28
ll
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA

ClarkHill\673
1 5\389603\223414787.v1-2/28/20
Thus, strict products liability does not apply to just anyone who sellsa product at any time.

The one-time seller, for instance someone going out of business and thus disposing of unnecessary

equipment, does not qualify as someone in“the stream of commerce” for the purposes of imposing

strictproducts liability.

Cc. Negligent Products Liability

There is no question but that a manufacturer or seller of a product is under a duty to exercise

reasonable care so that a product can be used safely by the ordinary consumer. Williams v.Beechnut

(1986) 185 Cal.App.3d 135, 141. That “reasonable care” is “must be balanced” by which would be

effective to avoid the harm” (Petersen v.Clay Adams, Inc. (1070) 12 Cal.App.3d 1062, 1077.)

Itis this concept of reasonable care and the exercise thereof that distinguishes negligence

from strict products liability,where the only issue iswhether the product, not matter how carefully

designed, failed to perform as safely as an ordinary consumer would expect, or that the risk of the

design outweighed the benefit of that design. Bracisco v. Beech Aircraft (1984) 159 Cal.App.3d 1101,

1106-7.

As stated in CACI 1221:
19
A [designer/manufacturer/supplier /installer /repairer] is negligent if [he/she/it]
20 fails to use the amount of care in
[designing/manufacturing/inspecting/installing/repairing] the product that a reasonably
21 careful [designer/manufacturer/supplier/installer/ repairer] would use in similar
22 circumstances to avoid exposing others to a foreseeable risk of harm .Indetermining
whether [name of defendant] used reasonable care, you should balance what [name of
23
FAX
defendant] knew or should have known about the likelihood and severity of potential
harm from the product against the burden of taking safety measures to reduce or avoid
24 the harm (Emphasis added),
25
_BY

26 Under a negligence theory the plaintiff must prove a defect caused injury. However, ‘[u]nder

27 a negligence theory, plaintiff must also prove “an additional element, namely, that the defect in the

28
12
DEFENDANT MOBILE ROCK, INC.’S MPA IN SUPPORT OF MSJ AND/OR MSA

ClarkHill\673
15\389603\223414787.v1-2/28/20
product was due to negligence of the defendan

Case Info

Case No.

(Subscribe to View)

Document Filed Date

February 28, 2020

Case Filing Date

May 17, 2018

County

Parties

Asiano, Ann M. Bradley, Curley, Asiano, Barrabee ,et al Attorney
Asiano, Ann M. Bradley, Curley, Asiano, Barrabee ,et al Attorney for the Defendant
Bishop's Entertainment Enterprises, LLC Cross Complainant
Bishop's Entertainment Enterprises, LLC Cross Defendant
Bishop's Entertainment Enterprises, LLC Defendant
Bishop's Pumpkin Farm, Inc. Cross Complainant
Bishop's Pumpkin Farm, Inc. Cross Defendant
Bishop's Pumpkin Farm, Inc. DOE 1 Defendant
Calnero, Carl Joseph Porter Scott, A Professional Corporation Attorney
Calnero, Carl Joseph Porter Scott, A Professional Corporation Attorney for the Defendant
Dunn, Ryan T Dunn & Panagotacos LLP Attorneys for Plaintiffs
Lewis, Luther Raymond Attorneys for Defendants
Lewis, Luther Raymond Attorney for the Defendant
Mobile Rock, Inc. DOE 3 Cross Complainant
Mobile Rock, Inc. DOE 3 Defendant
ROES 1-25 Cross Defendant
Sheehan, Ryon THE SHEEHAN FIRM Attorney
Sheehan, Ryon THE SHEEHAN FIRM Attorney for the Defendant
Sheehan, Thomas THE SHEEHAN FIRM Attorney
Sheehan, Thomas THE SHEEHAN FIRM Attorney for the Defendant
Tapp, Chad S. Porter Scott, A Professional Corporation Attorney
Tapp, Chad S. Porter Scott, A Professional Corporation Attorney for the Defendant
Thrillworks, Inc Cross Complainant
Thrillworks, Inc Cross Defendant
Thrillworks, Inc. Cross Defendant
Thrill Works, Inc Cross Defendant
Thrill Works, Inc DOE 2 Defendant
Trever Mead Plaintiff
Constantine Panagotacos Attorneys for Plaintiffs
Matthew Cody Attorneys for Plaintiffs
Kellie Murphy Attorney
Scott Cavanaugh Attorneys for Defendants
Lauren Bakke Attorney
Barbara Adams Attorney
Nathan Putney Attorney
Matthew Brand Attorneys for Defendants
Nicholas Spatola Attorneys for Defendants
Thomas Sheahan Attorneys for Defendants
Scott Lafranchi Attorney
Howard Strong Attorney
Brandon Jack Attorneys for Defendants

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: Mead, Trever vs. Bishop's Entertainment Enterprises, LLC

Preview

Related Topics

Case Info

Parties