Edwards v. A.L. Lease & Co.

• Decision Date: 24 June 1996
• Docket Number: Nos. H014019,H014029,s. H014019
• Citation: 46 Cal.App.4th 1029,54 Cal.Rptr.2d 259
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 14,661, 96 Cal. Daily Op. Serv. 4650, 96 Daily Journal D.A.R. 7444 Clark EDWARDS et al., Plaintiffs and Appellants, v. A.L. LEASE & COMPANY, INC., et al., Defendants and Respondents. Jan MARSHALL et al., Plaintiffs and Appellants, v. AMFAC DISTRIBUTION CORPORATION et al., Defendants and Respondents.

Page 259

54 Cal.Rptr.2d 259

46 Cal.App.4th 1029, Prod.Liab.Rep. (CCH) P 14,661,

96 Cal. Daily Op. Serv. 4650,

96 Daily Journal D.A.R. 7444

Clark EDWARDS et al., Plaintiffs and Appellants, v. A.L. LEASE & COMPANY, INC., et al., Defendants and Respondents.

Jan MARSHALL et al., Plaintiffs and Appellants, v. AMFAC DISTRIBUTION CORPORATION et al., Defendants and Respondents.

Nos. H014019, H014029.

Court of Appeal, First District, Division 5, California.

June 24, 1996.

Lieff, Cabraser, Heimann & Bernstein, Richard M. Heimann, Robert J. Nelson, and Christine J. Anderson, San Francisco, Law Offices of David M. Birka-White and David M. Birka-White, Alamo, for Appellants.

Law Offices of R. Lawrence Bragg, R. Lawrence Bragg and Roberta Rusk, Roseville, Robinson & Wood, Inc. and David S. Henningsen, San Jose, Folger and Levin, Thomas P. Laffey and Katharine Livingston, San Francisco, Vogl & Meredith and John P. Walovich, San Francisco, Williams, Romanski, Polverari & Skelton, Thomas J. Burns, Modesto, Pillsbury Madison & Sutro and Gary H. Anderson, San Francisco, Clapp, Moroney, Bellagamba, Davis and Vucinich and Mark T. Guerra, Pleasanton, Bledsoe, Cathcart, Diestel, Livingston & Pedersen, Robert K. Phillips and Shahab E. Fotouhi, San Francisco, Carrick & Dale, Daphne D. Golliher and Brian L. Thompson, Walnut Creek, Arthur Paul Berg, Glendale, Willoughby, Stuart & Bening and Ronald J. Cook, San Jose, Russell, Kazan, Brenner & Mallett and Philip Y. Kazan, San Francisco, Bradley, Curley & Asiano, Kevin P. McCarthy and David A. Sofaer, San Francisco, McNamara, Houston, Dodge, McClure & Ney, Michael J. Ney and Brendan J. Dooley, Walnut Creek, Greve, Clifford, Wengel & Paras, Edward T. Clifford and Craig L. Scott, Sacramento, Langley, Lamberto, Kreger & Moher and William F. Horsey, Jr., Los Altos, Terry D. Graff, San Jose, Borton, Petrini & Conron and Sharon Glenn Pratt, San Jose, Porter Scott, Weiberg & Delehant and Carl L. Fessenden, Sacramento, Rohlff, Howie & Frischholz, Nancy L. Peterson and Yale W. Rohlff, San Jose, Jones, LaMore, Brazier & Riddle and John E. Riddle, San Jose, Howard, Rice, Nemerovski, Canady, Falk & Rabkin and Todd E. Thompson, San Francisco, Morton, Lulofs & Allen, Larry E. Lulofs and Lisa S. Klotchman, Oakland, Glaspy & Glaspy and Paul C. Glaspy, San Jose, Paul S. Rosenstein, Oakland, Law Offices of Robert W. Barker and Robert W. Barker, Auburn, Lariviere & Dickerson and Glen M. Dickerson, San Jose, Steefel, Levitt & Weiss, Barry W. Lee and William L. Lowery, San Francisco, Marron, Reid & Sheehy, Michael R. Marron and Miriam E. Hiser, San Francisco, for Respondents.

HANING, Associate Justice.

In this appeal we are asked to apply the market share theory of liability of Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (Sindell ), or the alternative theory of liability of Summers v. Tice (1948) 33 Cal.2d 80, 199 P.2d 1 (Summers ) to wholesalers of defective residential drain pipe where the manufacturers are known, but where the plaintiffs in this product liability action for property damage allegedly cannot determine which wholesaler distributed

the pipe that was installed in their homes. We affirm.

BACKGROUND

This appeal is taken from a judgment of dismissal after demurrers to appellants' third amended complaints were sustained without leave to amend. The established standard of appellate review requires us to accept all material facts properly pleaded as true and accept those subject to judicial notice, and we report them accordingly. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58)

Appellants are individual homeowners whose homes have been damaged by defective acrylonitrile-butadiene-styrene (ABS) drain, waste and vent pipes manufactured by Centaur Mfg., Inc., (Centaur) and Phoenix Extrusion Company (Phoenix). ¹ Properly made ABS pipe must be manufactured from new, as opposed to recycled plastic, or it will fail. During an approximately two-year period, Centaur and Phoenix manufactured ABS pipe with recycled plastic. Defective components and recycled plastic from which the pipe was manufactured during this period were supplied to Centaur and Phoenix by two known component manufacturers. Centaur and Phoenix sold the defective pipe to wholesalers, who resold it to the plumbing contractors that installed it in plaintiffs' homes. The pipe was installed during the original construction of plaintiffs' homes between 1985 and 1988, and clearly designates the manufacturer as either Centaur or Phoenix. Respondents are a group comprising "approximately 100 [percent]" of the wholesalers of the defective pipe.

Appellants filed an action for property damage against the manufacturers, the component suppliers, an industry overseer, and respondent wholesalers. Appellants' amended complaints allege generally that although they can identify the manufacturer of the defective pipe installed in their individual homes, the suppliers of the defective components from which the pipe was manufactured, and the industry overseer, they cannot determine which wholesaler(s) distributed the pipe to the plumbing contractors that installed it in their homes, and have exhausted all reasonable efforts to do so. The nature of the defect is such that it may not manifest itself and cause harm for several years after installation; and the lapse of time, the fact that many plumbing contractors are no longer in business, and the attendant lack of records make it virtually impossible to trace the wholesaler(s) of the defective pipe. Appellants' action against respondents is based solely on strict liability under either a Sindell or Summers theory.

The trial court sustained the respondents' demurrers and dismissed the action against them, ruling that neither Sindell 's market share theory nor Summers' alternative theory of liability was applicable. It is from this judgment of dismissal that the appeal is taken.

DISCUSSION

Preliminarily, we note that this appeal involves two separate actions that were instituted as class actions in Santa Clara County. They were later coordinated with similar cases filed in Contra Costa and Shasta Counties, and ultimately assigned to a coordination judge in Contra Costa County. However, no class has yet been certified.

In a product liability action, every supplier in the stream of commerce or chain of distribution, from manufacturer to retailer, is potentially liable. (Greenman v. Yuba Power Products (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 [manufacturer]; Barth v. B.F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 71 Cal.Rptr. 306 [distributor]; Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 [retailer].) "The purpose for this 'stream of commerce' approach to strict liability is to As a general rule, tort liability is dependent upon the plaintiff's ability to demonstrate that his or her damages were caused by the defendant, and this rule applies in strict liability as well as negligence cases. (Sindell, supra, 26 Cal.3d at pp. 597-598, 163 Cal.Rptr. 132, 607 P.2d 924.)

                extend liability to all those engaged in the overall producing and marketing enterprise who should bear the social cost of the marketing of defective products.  [Citation.]  By extending liability to entities farther down the commercial stream than the manufacturer, the policy of compensating the injured plaintiff is preserved, and retailers and distributors remain free to seek indemnity against the manufacturer of the defective product."  (Kaminski v. Western MacArthur Co.  (1985) 175 Cal.App.3d 445, 456, 220 Cal.Rptr. 895.)   Unlike negligence, in which the focus is on the conduct of the tortfeasor, strict liability focuses on the product itself and holds the manufacturer, et al., liable if the product is defective.  (Brown v. Superior Court (1988) 44 Cal.3d 1049, 1056, 245 Cal.Rptr. 412, 751 P.2d 470.)
                

A. Market Share Liability

Sindell departs from the general rule requiring plaintiffs to identify the specific defendants whose conduct caused injury, and provides an exception to that rule under certain circumstances. The Sindell facts are well known. The Sindell plaintiffs were women who had developed cancer due to prenatal exposure to diethylstilbestrol (DES),...