Larosa v. Superior Court

• Citation: 122 Cal.App.3d 741,176 Cal.Rptr. 224
• Court: California Court of Appeals
• Decision Date: 19 August 1981
• Parties: Rock LaROSA, Petitioner, v. SUPERIOR COURT, SANTA CLARA COUNTY, Respondent, JOE CLAR & SONS, Real Party in Interest. Civ. 51523.

Page 224

176 Cal.Rptr. 224

122 Cal.App.3d 741

Rock LaROSA, Petitioner, v. SUPERIOR COURT, SANTA CLARA COUNTY, Respondent JOE CLAR & SONS, Real Party in Interest.

Civ. 51523.

Court of Appeal, First District, Division 4, California.

Aug. 19, 1981.

Rehearing Denied Sept. 18, 1981.

Hearing Denied Nov. 19, 1981.

Scher & Bassett, Leslie E. Scher, Sunnyvale, for petitioner.

Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Michael J. Brady, Mark G. Bonino, Redwood City, for real party in interest.

CALDECOTT, Presiding Justice.

The question presented by this petition for writ of mandate or prohibition is whether defendants, who are in the business of selling various kinds of used machinery, are strictly liable for a defect of undetermined origin in a machine which defendants sold but which they neither inspected, repaired nor modified.

Petitioner Rock LaRosa, plaintiff in the underlying action for damages for personal injury ("claimant") was injured when a punch press, owned by his employer, malfunctioned. The employer had purchased the punch press, used, from real party in interest Joe Clar & Sons. Claimant sued Clar and Clar's employee Clyde Batavia (collectively "Clar"), among other defendants, upon theories of negligence and strict products liability. Clar moved for summary judgment which was denied as to the negligence theory but granted as to claimant's strict products liability theory. Claimant seeks a writ of prohibition or mandate to vacate the order granting partial summary judgment. Review by extraordinary writ is appropriate. (Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 557-558, 145 Cal.Rptr. 657.) This court issued an alternative writ of mandate.

We conclude, (1) that California's evolving general rules of strict products liability do not apply to Clar in the circumstances of this action and, (2) that there is no sufficient policy predicate for imposing an analogous but distinct strict products liability rule upon a used-goods dealer in Clar's situation. Accordingly, this court approves the partial summary judgment for Clar, denies claimant's petition, and discharges the alternative writ.

SUMMARY JUDGMENT

Partial summary judgment is authorized by Code of Civil Procedure section 437c, which provides in relevant part that a 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. (P) ... If it appears that the proof supports the granting of such motion as to some but not all the issues involved in the action ... the court shall, by order, specify that such issues are without substantial controversy. At the trial of the action the issue so specified shall be deemed established and the action shall proceed as to the issues remaining."

Review of the trial court's determination involves pure matters of law: Reassessment of the legal significance of the documents upon which the trial court acted. The reassessment normally proceeds in one or more of three consecutive steps:

(1) Analyze the pleadings. "Papers submitted on a motion for summary judgment must be directed to the issues raised by the pleadings." (Vanderbilt Growth Fund, Inc. v. Superior Court (1980) 105 Cal.App.3d 628, 635, 164 Cal.Rptr. 621, citing Keniston v. American Nat. Ins. Co. (1973) 31 Cal.App.3d 803, 812, 107 Cal.Rptr. 583.) In addition, a defendant's motion for summary judgment "necessarily includes a test of the sufficiency of the complaint .... Motions for summary judgment in such situations have otherwise been allowed as being in legal effect motions for judgment on the pleadings." (C. L. Smith Co. v. Roger Ducharme, Inc. (1977) 65 Cal.App.3d 735, 745, 135 Cal.Rptr. 483; cf. also Brown v. Critchfield (1980) 100 Cal.App.3d 858, 862, fn. 1, 161 Cal.Rptr. 342; Bowden v. Robinson (1977) 67 Cal.App.3d 705, 710, 136 Cal.Rptr. 871; Kessler v. General Cable Corp. (1979) 92 Cal.App.3d 531, 535-536, 155 Cal. Rptr. 94.)

(2) Examine the moving parties' showing. " 'Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor ....' " (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 183, 156 Cal.Rptr. 745, quoting from Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785, with emphasis added.) Where, as here, the moving party is a defendant he must either negate a necessary element of the plaintiff's case or state a complete defense. (Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Terrlink & Bell (1977) 70 Cal.App.3d 331, 338, 138 Cal.Rptr. 670.) If the moving party did not make the necessary showing, then (without consideration of triable issues of material fact) the summary judgment should have been denied. (Cf., e. g. Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 831, 159 Cal.Rptr. 98; Tresemer v. Barke (1978) 86 Cal.App.3d 656, 662-663, 150 Cal.Rptr. 384; Beech Aircraft Corp. v. Superior Court (1976) 61 Cal.App.3d 501, 520, 132 Cal.Rptr. 541.) If (but only if) the moving parties are found to have made the necessary showing, then,

(3) Examine the responding parties' showing in opposition to determine whether it created any triable issue as to a fact material to the moving parties' showing: "(N)o amount of factual conflicts upon other aspects of the case will affect the result ...." (Frazier, supra, 70 Cal.App.3d 331, 338, 138 Cal.Rptr. 670.) If there was a triable issue of material fact summary judgment should have been denied.

It is the general rule with respect to steps (2) and (3), that the moving parties' declarations should be construed strictly and the responding parties' liberally. (Cf., e. g., Pupko v. Bank of America (1981) 114 Cal.App.3d 495, 498, 170 Cal.Rptr. 615; Calva Products v. Security Pacific Nat. Bank (1980) 111 Cal.App.3d 409, 415, 168 Cal.Rptr. 582.)

A. Pleading

Claimant's complaint separately stated two counts, the first for negligence and the second for strict product liability. The trial court granted Clar's summary judgment motion "as to the second cause of action (strict liability)."

The second count alleged in pertinent part that Batavia was the agent and employee of Joe Clar & Sons; the press was manufactured by Johnson Machine & Press Corporation.

Clar was at relevant times "engaged in the business of selling at retail or wholesale to manufacturers at its principal place of business ... the hereinabove described press manufactured, designed and assembled by Defendants, JOHNSON ....."

Claimant's employer purchased the press from Clar.

At the time of purchase the press "was defective and unsafe for its intended purposes in that the press, manufactured, designed and supplied by Defendants and each of them, for retail sale was purchased by the employer and used by ... (claimant) in its normal and intended manner when said press triggered and crushed ... (claimant's) hands."

Claimant "neither knew, nor had reason to know that at the time of his use of the press, or at any time prior to the accident ..., of the existence of the foregoing described defect."

"(O)n or about July 26, 1976, ... (claimant) was at his place of employment ... and was using the hereinabove described press for one of its intended manufacturing uses ..., and during the course of said use, and as a proximate result of the defect hereinabove described, the press triggered causing ... (claimant's) hands to be crushed."

As a result claimant was caused pain and suffering and incurred medical expenses and loss of income and of ability to earn.

Claimant's complaint thus suggests on its face that Clar was, or was equivalent to, a retailer engaged in the initial distribution of Johnson presses. On its face the count sufficiently outlines a theory of strict product liability against Clar. (Cf. 3 Witkin, Cal.Proc. (2d ed. 1971) Pleading, § 497, pp. 2157-2158; Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 391 P.2d 168.)

B. Showing by Clar

Within the frame of reference provided by the second count of the complaint Clar was required, in support of its motion for summary judgment, to negate a necessary element of petitioner's strict products liability theory or to state a complete defense to it. (Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Terrlink & Bell, supra, 70 Cal.App.3d 331, 338, 138 Cal.Rptr. 670.) To do so it was entitled, on this record, to rely on declarations, depositions, and any matters admitted in the complaint. (Cf. Code Civ.Proc., § 437c; Stevens v. Cessna Aircraft Co. (1981) 115 Cal.App.3d 431, 434, 170 Cal.Rptr. 925; Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146, 142 Cal.Rptr. 46.

In factual support of its motion Clar submitted only a declaration executed by Batavia, excerpts from a deposition given by one Arthur LaRosa, and counsel's declaration that the excerpts are true and correct copies and that Arthur LaRosa was "half owner of Alerco."

Batavia declared:

"I was an employee of JOE CLAR & SONS in 1976 and was involved in the sale by JOE CLAR & SONS of the 1962 Johnson 45-ton punch press which is the subject of this lawsuit. JOE CLAR & SONS purchased the machine in question on April 21, 1976, from Morton Machinery Company, another used machinery dealer.

"The press was shipped directly from Morton to the plaintiff's employer, Alerco, on or about April 22, 1976. The machine was never in the possession of JOE CLAR & SONS. No representative from JOE CLAR & SONS ever inspected, used, modified or repaired the machine. JOE CLAR & SONS did not produce, manufacture or otherwise supply any component parts of the machine separately.

"Mr. LaRosa's employer, Alerco, purchased the press 'as is.' At no time did any representative of JOE CLAR & SONS make any representation to any parties at Alerco regarding the quality or safety of the machine in...