I. Background

Plaintiff Benjamin Cruz (“Cruz”) commenced this action to recover damages for a workplace injury. Cruz worked as a landscaper for defendant Victor Medina (“Medina”) (doing business as Medina’s Tree Service) and was seriously injured when his shirt caught in the cutting wheel of a Dosko-brand stump grinder made by defendant Northern Tool & Equipment Company, Inc. (“Northern Tool”).

Cruz asserts causes of action for premises liability and negligence against Medina and the property owners for whom he provided landscaping services. Additionally, and as relevant here, Cruz asserts a products liability claim against Northern Tool. Cruz’s third cause of action for products liability consists of three separately identified counts for strict products liability, negligence, and breach of warranty.

Northern Tool moves for summary judgment or summary adjudication on the ground Cruz’s products liability claim lacks merit.

II. Standard of Review

A. Summary Judgment

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit [ ].” (Code Civ. Proc., § 437c, subd. (a)(1).) “A defendant [ ] has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the defendant must present evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“Once the defendant [ ] has met that burden, the burden shifts to the plaintiff [ ] to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff “must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment.” (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11; Code Civ. Proc., § 437c, subd. (b)(2); see also Code Civ. Proc., § 437c, subd. (p)(2) [“The plaintiff [ ] shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”].)

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

B. Summary Adjudication

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

III. Preliminary Procedural Matters

There are a number of problems with the manner in which Northern Tool presents its motion that must be addressed first to ensure a clear ruling.

To properly move for summary judgment or summary adjudication, a party must file, among other things, a notice of motion and separate statement of undisputed material facts. (Cal. Rules of Court, rule 3.1350(c).)

A notice of motion must “[b]riefly state the basis for the motion and the relief sought.” (Cal. Rules of Court, rule 3.1112(d).) And when a party moves for summary adjudication, “separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages or issues of duty must be stated specifically in the notice of motion. . . .” (Cal. Rules of Court, rule 3.1350(b).)

Here, Northern Tool states it is moving for summary judgment or, alternatively, summary adjudication of “the following issues.” (Not. of Mot. at p. 2:10-11.) But the only “issue” that may be summarily adjudicated is an “issue of duty” not simply any legal issue. (Code Civ. Proc., § 437c, subd. (f)(1); see also Paramount Petroleum Corp. v. Super. Ct. (2014) 227 Cal.App.4th 226, 238-39.) Thus, Northern Tool fails to identify a proper subject of a motion for summary adjudication in its notice of motion.

Even overlooking Northern Tool’s choice of terminology, the issues it identifies cannot be construed as proper subjects of a motion for summary adjudication. Northern Tool lists issues with respect to several purported “causes of action” for strict products liability, negligence, and “strict product[s] liability and negligen[t] design” as well as a purported “claim” for breach of warranty. (Not. of Mot. at p. 2:12-26.) But Cruz does not allege such causes of action in the complaint. Rather, Cruz asserts a single cause of action based on three different legal theories. The purported cause of action for strict products liability and negligent design is actually an

amalgamation of theories Northern Tool crafted into a cause of action. Otherwise, the purported causes of action identified by Northern Tool are simply different theories of liability or counts within the third cause of action. Code of Civil Procedure section 437c, subdivision (f)(1) does not authorize summary adjudication of counts or theories of liability. Consequently, the issues Northern Tool identifies cannot be construed as causes of action properly subject to summary adjudication.

Although not articulated by Northern Tool, it appears it may believe the separate counts should be treated as separate causes of action that may be summarily adjudicated. But Northern Tool does not provide any explanation or justification for construing the pleading in this manner, and it is not otherwise obvious such a construction is proper here.

California courts have defined a cause of action as “simply the obligation sought to be enforced.” (Lilienthal & Fowler v. Super. Ct. (1993) 12 Cal.App.4th 1848, 1853 [internal quotation marks and citations omitted].) “The same cause of action, of course, may be stated variously in separate counts.” (Ibid.) Although “the phrase ‘causes of action’ is often used indiscriminately to mean what it says and to mean counts which state differently the same cause of action” (ibid., original italics), Cruz has not indiscriminately used those terms here.

Cruz does not purport to assert multiple causes of action. Rather, Cruz asserts one cause of action based on several legal theories. (See Milwaukee Electric Tool Corp. v. Super. Ct. (1993) 15 Cal.App.4th 547, 561 [a plaintiff may pursue “companion theories” of strict products liability, negligence, and breach of warranty].) Thus, Cruz appears to be correctly using the term “count” to separately identify the different legal theories upon which his cause of action is based.

In any event, “[t]he manner in which a plaintiff elects to organize his or her claims within the body of the complaint is irrelevant to determining the number of ... ..........................................................