Tauber-Arons Auctioneers Co. v. Superior Court

Decision Date22 January 1980
PartiesAUCTIONEERS CO., INC., Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, Doroteo PEREZ, Real Party in Interest. Civ. 57639.
CourtCalifornia Court of Appeals Court of Appeals

Bolton & Gelbard, Robert A. Bolton and Herbert F. Blanck, Los Angeles, for petitioner.

No appearance by respondent.

Voorhies, Greene, O'Reilly, Agnew & Broillet and Timothy J. Wheeler, Los Angeles, for real party in interest.

POTTER, Acting Presiding Justice.

Petitioner Tauber-Arons Auctioneers Co., Inc., seeks a peremptory writ of mandate to compel respondent Superior Court for the County of Los Angeles to vacate its order, granting the motion of real party in interest Doroteo Perez to specify an issue "without substantial controversy" pursuant to Code of Civil Procedure section 437c.

Perez is the plaintiff in the action entitled Perez v. Independent Crop Dusting Corporation, et al., case No. C. 110988, which seeks damages for personal injuries allegedly suffered as the proximate result of a defect in a "Forsberg Model 101 'V' Belt Drive Planer." Perez suffered injury while operating the planer in the course of his employment with Crystal-Like Plastics on or about March 19, 1974. The planer was acquired by Crystal-Like Plastics in February 1969, at an auction sale conducted by petitioner.

After discovery proceedings which disclosed the source of the machine, Perez moved the court for an order that it be "deemed established" that petitioner (1) "sold the subject product to the plaintiff's employer, Crystal Like Plastics," (2) "is the 'seller' of the subject product," and (3) "(a)s 'seller' of the subject product . . . is subject to the rule of strict liability imposed on sellers of products."

In support of the motion, Perez relied upon the deposition of Bert Arons, the majority stockholder and secretary-treasurer of petitioner. The deposition showed that during the 18 years that Arons had been with petitioner, he had "been engaged exclusively in the business of auctioning off used machinery and equipment." Crystal-Like Plastics purchased the planer at a public auction sale of all of the factory machinery of Henry Engineering Company, a manufacturing concern which was going out of business. Included were a wide variety of different types of machines, such as automatic screw machines, lathes, milling machines, drills, band saws, grinders, compressors and forklifts which were manufactured by a large number of different manufacturers. There was only one wood planer and it was the only Forsberg product included.

Petitioner conducted the sale at Henry Engineering Company premises. Petitioner's compensation was a flat fee of $2,500 paid by Henry Engineering. The sale was advertised by petitioner through direct mail. The advertisement merely listed the items by manufacturer and model number and illustrated some of them. Petitioner's services also included cleaning up the machinery to make it more attractive to purchasers but petitioner did not do maintenance or repair and sold all equipment "as is." The title to all the machinery was transferred directly from Henry Engineering to the purchasers; this was petitioner's practice in 99 percent of the auctions which it conducted. Arons had never seen a Forsberg planer before and had no expertise as to its design.

In opposition to Perez' motion, petitioner relied upon the Arons deposition testimony and upon his declaration. The declaration stated that (1) "(a) substantial portion of (petitioner's) business activity is auctioning used industrial machinery," (2) petitioner did not take title to the planer but sold it as agent for Henry Engineering, (3) at the time of sale the planer was not a new machine and was sold "as is" "which in this trade means that said planer was not modified, altered, inspected, tested and/or operated by" petitioner and was, therefore, "subject to inspection by potential buyers prior to the date of auction," and "(n)o representations of any kind were made to anyone at any time regarding the safety or quality of the Forsberg planer."

In ruling on Perez' motion, respondent court restated the issue thereby presented in terms of the decision of our Supreme Court in Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 899, 391 P.2d 168, 171, which imposed liability upon a car dealer as an "integral part of the overall producing and marketing enterprise" engaged in the business of distributing Ford automobiles to the public. Respondent concluded that "(t)he totality of facts gleaned from the admissible evidence indicates that defendant auctioneer was a marketer, in the chain of commercial marketing of the defective planer, so as to be liable to plaintiff for product liability." On this basis, the court declared "that the following issue is without substantial controversy and is deemed admitted: that defendant Tauber-Arons Auctioneers, in auctioning the subject Forsberg Planer Machine, was engaged in the sale and distribution of said machine as a commercial marketer participating as an integral part of the business enterprise of marketing." The action was permitted to proceed "as to the issues remaining."


Petitioner contends that (1) mandate is an appropriate remedy because the order is not appealable and an appeal from an adverse judgment is not an adequate remedy; and (2) the showing made by Perez does not establish petitioner's status as a marketer subject to strict liability for defects in the Forsberg planer.

Respondent court has not filed a return.

Perez, as real party in interest, opposes the petition on the merits, claiming that the undisputed facts establish petitioner's strict liability for any defect in the planer.


Mandate is an appropriate remedy. The trial court erred in declaring that petitioner was, as a matter of law, a marketer subject to strict liability for any defect in the planer. A peremptory writ shall therefore issue, directing that said order be vacated.

Mandate Is An Appropriate Remedy

The result of the trial court's order is that petitioner is prevented from defending against Perez' cause of action for strict liability on any basis other than the nondefective nature of the planer and such order is not appealable. As stated in Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 557-558, 145 Cal.Rptr. 657, 658, "where an order bars a substantial portion of a (party's) case from being heard on the merits, a petition for writ of mandate to vacate that order may be maintained. (Vasquez v. Superior Court (1971), 4 Cal.3d 800, 807, 94 Cal.Rptr. 796, 484 P.2d 964; Field Research Corp. v. Superior Court (1969), 71 Cal.2d 110, 111, 77 Cal.Rptr. 243, 453 P.2d 747.) (Fn. omitted.)"

We granted the alternative writ in this matter because the court below decided an important issue of first impression in this state which should be resolved by an appellate court decision.

Petitioner's Status as a Marketer Subject to Strict Liability Was Not Established

In reviewing an order declaring an issue "without substantial controversy" pursuant to Code of Civil Procedure section 437c, we are bound by the rules generally applicable to review of summary judgments. In Nazaroff v. Superior Court, supra, 80 Cal.App.3d at page 558, 145 Cal.Rptr. at page 658, where such an order was under review, the court said:

"The rules governing summary judgments are collated in Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412 (42 Cal.Rptr. 449, 398 P.2d 785). There the court concluded, 'Thus, the trial court was justified in granting the motion here only if the declarations filed in support of it, strictly construed, contain facts sufficient to entitle the defendants to judgment, and those of the plaintiffs, liberally construed, show that there was no issue of fact to be tried.' (62 Cal.2d at p. 417, 42 Cal.Rptr. 449, 398 P.2d 785. See also Vesely v. Sager (1971) 5 Cal.3d 153, 169, 95 Cal.Rptr. 623, 486 P.2d 151; Pettis v. General Tel. Co. (1967) 66 Cal.2d 503, 505, 58 Cal.Rptr. 316, 426 P.2d 884; Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 127-128, 109 Cal.Rptr. 724; Archibald v. Braverman, supra, 275 Cal.App.2d 253, 79 Cal.Rptr. 723, Passim ; and Thornton v. Victor Meat Co. (1968) 260 Cal.App.2d 452, 457-458, 67 Cal.Rptr. 887. Cf. Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582, 588, 39 Cal.Rptr. 708, 394 P.2d 548; Arauz v. Gerhardt, supra, 68 Cal.App.3d 937, 940-941, 137 Cal.Rptr. 619; and Swaffield v. Universal Ecsco Co. (1969) 271 Cal.App.2d 147, 171-172, 76 Cal.Rptr. 680.)"

Consequently, in the absence of any showing to the contrary, we must assume (as a fact favorable to petitioner) that the alleged defect in the Forsberg planer was created by the original manufacturer, Forsberg. At the time petitioner participated in the sale to Crystal-Like Plastics, the planer was secondhand, having been used by Henry Engineering Company in its manufacturing activities.

Petitioner was shown to have been engaged for many years in the business of conducting auction sales of used machinery of all categories, generally (as in this case) as agent of the owner. Though petitioner advertised the sale and cataloged the items being offered, it made no recommendation nor representation of the merit of any manufacturer's product. Moreover, there was no showing whatever that petitioner occupied any special position with respect to Forsberg; Forsberg was simply one of the innumerable machinery manufacturers whose products might be auctioned secondhand by petitioner. In fact, Arons had never even seen a Forsberg planer before.

The effect of the trial court's ruling is to make every dealer in secondhand goods strictly liable for defects created by innumerable manufacturers of the class or classes of...

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