Walker v. Stauffer Chemical Corp.

• Citation: 96 Cal.Rptr. 803,19 Cal.App.3d 669
• Court: California Court of Appeals
• Decision Date: 26 August 1971
• Parties: Michele WALKER, Plaintiff and Appellant, v. STAUFFER CHEMICAL CORPORATION, a corporation, Defendant and Respondent. Civ. 36772.

Page 803

96 Cal.Rptr. 803

19 Cal.App.3d 669

Michele WALKER, Plaintiff and Appellant, v. STAUFFER CHEMICAL CORPORATION, a corporation, Defendant and Respondent.

Civ. 36772.

Court of Appeal, Second District, Division 3, California.

Aug. 26, 1971.

Milton Sidley, Beverly Hills, for plaintiff and appellant.

Hagenbaugh, Murphy & Davies, William D. Stewart, John F. Mounier, Jr., Los Angeles, for defendant and respondent.

ALLPORT, Associate Justice.

In a complaint alleging negligence and breach of warranty plaintiff seeks damages for personal injuries against defendants Mueller, Joe Fazio, dba Standard Chemway Co., Stauffer Chemical Corp., and others. On motion of Stauffer a summary judgment was entered in its favor. Plaintiff has appealed from that judgment. We have concluded that the appeal lies even though the judgment is not final as to the rights of all of the parties to the litigation. (Code Civ.Proc. §§ 437c, 904.1; Wilson v. Sharp, 42 Cal.2d 675, 677, 268 P.2d 1062; County of Los Angeles v. Stone, 198 Cal.App.2d 640, 645, 18 Cal.Rptr. 72.)

The summary disposition of this action was based upon the pleadings, declarations of attorneys for Stauffer and plaintiff, as well as upon answers to interrogatories made by plaintiff and codefendant Fazio. The trial court concluded there was no triable issue of fact with respect to defendant Stauffer and ordered that judgment be entered in its favor as a matter of law. We find no error in such a determination of the matter.

It appears without conflict that plaintiff, a tenant of premises owned and maintained by defendant Mueller, was injured as the result of the explosion of a drain cleaning product known as Clear-All furnished for her use by Mueller. Clear-All alleged to be a highly dangerous volatile substance, contained 50 per cent sulfuric acid and 50 per cent alkaline base. The label on the Clear-All container stated, among other things, that the product contained sulfuric acid and enunciated certain warnings and antidotes with respect to its use. Clear-All was compounded, packaged and distributed to the public by Fazio through wholesale and retail outlets. Fazio purchased the sulfuric acid from two sources--Stauffer and Los Angeles Chemical Company. This had been going on over a period of some ten years. Each delivery of acid was checked for consistency and strength by a chemist using standard tests and testing procedures. At no time did these tests reveal the acid to be defective in any way. There was no method of determining whose acid was actually used in the bottle of Clear-All furnished to plaintiff. It could have been either that of Stauffer or Los Angeles Chemical. For our purpose we assume that of Stauffer was used.

The third and fourth causes of action of the unverified complaint are directed at defendant Stauffer. It is therein alleged that Stauffer warranted that the acid was suitable for the purpose for which it was intended to be used as well as being of merchantable quality. It is also alleged that Stauffer negligently, carelessly and unlawfully failed to warn of known existing dangers in connection with the use of Clear-All. There is no claim of agency as between any of the defendants.

California procedure permits of summary disposition of an unmeritorious action under certain conditions. Code of Civil Procedure section 437c provides in part '* * * if it is claimed that action has no merit * * * the complaint may be dismissed and judgment may be entered, in the discretion of the court unless the party * * * shall show such facts as may be deemed * * * sufficient to present a triable issue of fact.' We are not unaware that summary judgment procedure has been deemed to be drastic and should be used with caution in order that it does not become a substitute for trial. (Coleman v. Fitzgerald, 252 Cal.App.2d 58, 61, 60 Cal.Rptr. 173.) We are also sensitive to the current need to expedite litigation and to the use of this procedure to determine whether or not a genuine cause of action in fact exists. (Property Controllers, Inc. v. Shewfelt, 245 Cal.App.2d 755, 761, 54 Cal.Rptr. 218.) The motion in the instant case was properly supported and opposed by the use of both declarations and answers to interrogatories. (State Medical Education Board v. Roberson, 6 Cal.App.3d 493, 499--500, 86 Cal.Rptr. 258.)

Considering that portion of the record presented in support of the motion strictly and that in opposition liberally as we are required to do (Walsh v. Glendale Federal Savings & Loan Assn., 1 Cal.App.3d 578, 583, 81 Cal.Rptr. 804), we fail to see wherein the uncontroverted facts establish liability on the part of defendant Stauffer or reveal any triable issue of material fact. Plaintiff has abandoned any claim arising out of breach of warranty with respect to the bulk sulfuric acid furnished by Stauffer by failure to pursue such claim in her brief. (Renden v. Geneva Development Corp., 253 Cal.App.2d 578, 591, 61 Cal.Rptr. 463.) There exists no evidence to support such a theory of liability. It is uncontradicted that the bulk acid was not defective. There is no claim of negligence in the manufacture or packaging of the bulk acid. The doctrine of res ipsa loquitur is not available as to defendant Stauffer. (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 457--458, 150 P.2d 436.)

Plaintiff contends that a triable issue of fact exists, to wit, who was the manufacturer, Stauffer or Fazio? This contention is without merit. The facts establish Fazio to be the manufacturer (seller) of the product Clear-All. Stauffer manufactured (sold) bulk sulfuric acid. It was contemplated that the bulk acid was to be used in compounding a product packaged, labeled and sold through distributors by Fazio. The compounding entailed a change in the physical composition of the bulk acid calculated to render it suitable as a household product. The bulk sulfuric acid was substantially altered, not only as to its chemical composition, but as to the container form in which it was distributed. The ultimate product Clear-All can in no way be considered to be one and the same bulk sulfuric acid manufactured by Stauffer and sold to Fazio. In view of our conclusion that Fazio, not Stauffer, was the manufacturer (seller), cases imposing responsibility under the doctrine of strict liability are not applicable to Stauffer and do not require trial of this action as to that company. Section 402A of Restatement Second of Torts provides in part:

'One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.'

In a caveat and in comment thereto it is said:

'Caveat:

The institute expresses no opinion as to whether the rules stated in this Section may not apply

(1) to harm to persons other than users or consumers;

(2) to the seller of a product expected to be processed or otherwise substantially changed before it reaches the...