United States District Court, S.D. California
ORDER: (1) DENYING WITHOUT PREJUDICE DEFENDANT'S
MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY; (2) GRANTING
PLAINTIFFS' EX PARTE MOTION TO FILE SUR-REPLY; and (3)
GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
Roger T. Benitez United States District Judge
Brock Mathis and Michelle Mathis bring this products
liability action to recover damages arising out of injuries
Mr. Mathis sustained during an accident involving the failed
installation of an “Ultra Fiberglass 123” x
60” clear tampered [sic] window” (hereinafter
“the Subject Window”) manufactured by Defendant
Milgard Manufacturing, Inc. (“Milgard”). (Docket
No. 1-2, Compl. at p. 5.) Plaintiffs assert Milgard is liable for
Mr. Mathis's injuries under California state-law theories
of strict liability, negligence, and breach of implied
warranty, as well as Mrs. Mathis's alleged resulting loss
November 30, 2016, Defendant removed Plaintiffs' lawsuit
from the Superior Court of California to this Court. (Docket
No. 1.) Now pending is Defendant's motion for summary
judgment, or in the alternative, partial summary
judgment. (Docket No. 36.) The motion is fully
briefed. For the reasons that follow,
Defendant's motion is GRANTED in part and DENIED
Mathis is the owner of BPM Builders, Inc.
(“BPM”). (Docket No. 36-11, Def.'s Notice of
Lodgment in Supp. of Mot. for Summ. J. (“DNOL”),
Ex. G, Dep. of Brock Mathis (“Mathis Dep.”) at
pp. 29:15-18, 31:11-18.) Since 2002, Mr. Mathis has been a
California licensed general contractor, either individually
or through BPM. (Id. at pp. 29:4-30:1, 31:2-4.) For
the past four years, BPM's business has primarily
involved upscale residential remodeling construction.
(Id. at pp. 3:5-23, 50:20-51:3.)
April 18, 2016, Mr. Mathis authorized BPM's purchase of
the Subject Window from a Dixieline Lumber Co. sales
representative. (Id. at pp. 40:11-18, 51:16-52:21
& Mathis Dep. Ex. 4.) The Subject Window was intended to
be installed on the second floor addition as part of a
remodel of Mr. Mathis's father's home, which also
served, and continues to serve, as Plaintiffs' present
residence and BPM's address. (Mathis Dep. at pp. 7:21-24,
31, 2016, Mr. Mathis attempted to install the Subject Window
with his two general laborer employees, Denis and Walter.
(Id. at pp. 25: 6-2, 58:21-59:5.) In essence,
Plaintiffs allege that during the attempted installation, the
Subject Window frame bent, flexed, buckled and/or bowed such
that it fell into the intended window opening, and its
flanges folded, buckled, and/or got unintentionally locked
into the opening, at which point the Subject Window became
stuck. Ultimately, as Mr. Mathis, Denis, and Walter tried to
dislodge the Subject Window, it swung back and knocked them
off the scaffold they were standing on. (Id. at pp.
116:7-119:20, 136:2-24, 138:3-139:24; see also DNOL
Ex. D, Mr. Mathis's Resp. to Interrog. No. 1; Ex. E, Mr.
Mathis's Supp. Resp. to Interrog. No. 1 (“The
[Subject Window] was structurally unsound, did not maintain
its form during installation resulting in its collapse,
thereby pushing [Mr. Mathis] and this co-workers off the
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). A fact is material if it might affect the
outcome of the suit under the governing law.
Anderson, 477 U.S. at 248. “Factual disputes
that are irrelevant or unnecessary will not be
counted.” Id. A dispute is genuine if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
In considering a summary judgment motion, the evidence of the
nonmovant is to be believed, and all justifiable inferences
are to be drawn in his or her favor. Id. at 255.
moving party bears the initial burden of showing there are no
genuine issues of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). It can do so by
negating an essential element of the non-moving party's
case, or by showing that the non-moving party failed to make
a showing sufficient to establish an element essential to
that party's case, and on which the party will bear the
burden of proof at trial. Id. The burden then shifts
to the non-moving party to show that there is a genuine issue
for trial. Id. As a general rule, the “mere
existence of a scintilla of evidence” will be
insufficient to raise a genuine issue of material fact.
Anderson, 477 U.S. at 252. There must be evidence on
which the jury could reasonably find for the non-moving
Products Liability Claims
California, “[p]roducts liability may be premised upon
a theory of design defect, manufacturing defect, or failure
to warn.” Trejo v. Johnson & Johnson, 13
Cal.App. 5th 110, 125 (2017) (citing Anderson v.
Owens-Corning Fiberglas Corp., 53 Cal.3d 987, 995
(1991)). Each of these theories in turn may be advanced under
a theory of strict liability or negligence (or both), which
require a plaintiff to prove that a defect caused the
plaintiff's injury. Id., 13 Cal.App. 5th at 125
(citations omitted in original).
plaintiff seeking recovery for a manufacturing or design
defect under a theory of negligence must also prove an
additional element: “that the defect in the product was
due to negligence of the defendant.” Id.
(quoting Anderson, 53 Cal.3d at 995-96) (internal
citations omitted in original). However, this additional
element is not required in the context of a failure to warn
claim, where “there is little functional difference
between the two theories.” Johnson v. Am. Standard,
Inc., 43 Cal.4th 56, 71-72 (2008) (citing Cupp &
Polage, The Rhetoric of Strict Products Liability Versus
Negligence: An EmpiricalAnalysis, 77 N.Y.U.