Burns v. WD-40
Filed 6/10/13 Burns v. WD-40 Co.
CA4/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION THREE
ANDREA BURNS,
Plaintiff and Appellant,
v.
WD-40 COMPANY,
Defendant and Respondent.
G047027
(Super. Ct. No. 30-2010-00382503)
O P I
N I O N
Appeal from a judgment
of the Superior Court
of
County, Kim Garlin Dunning, Judge. Affirmed.
Blood Hurst &
O’Reardon, Timothy G. Blood, Leslie E. Hurst and Paula M. Roach for Plaintiff
and Appellant.
Law Office of Shannon
Sweeney, Shannon Sweeney; Lewis Brisbois Bisgaard & Smith, Jon P.
Kardassakis and Ivan L. Tjoe for Defendant and Respondent.
* * *
Plaintiff
Andrea Burns sued defendant WD-40 Company (WD-40) because their products, 2000
Flushes and 2000 Flushes Blue Plus Bleach (2000 Flushes Blue), allegedly harmed
her plumbing. The putative class action
sought relief under both statutory and common law causes of action and for injunctive relief. WD-40 filed a motion to dismiss her claim under
the Consumer Legal Remedies Act (CLRA) and for
arguing, among other things, a lack of evidence as to causation with respect to
the falsity of the advertising. The trial
court granted the motion. Burns had two
routes to establish the falsity of the representations — that her plumbing was
harmed, or that nearly all plumbing would be harmed by use of the products. Because WD-40 successfully shifted the burden
on these issues, and Burns failed to raise a triable issue of material fact in
rebuttal, we affirm.
I
FACTS
WD-40
currently manufactures and sells 2000 Flushes and 2000 Flushes Blue
(collectively the products). The
original versions of the products were created by Block Drug Company during the
1990’s. At the time, the products were
plastic canisters that were placed in the toilet bowl. The active ingredient was calcium
hypochlorite bleach.
In
2001, WD-40 acquired the products. It
discontinued the canister version of the products and began to sell a fully
dissolvable tablet form. The active
ingredient was dichlorohydantoin, a slower dissolving, less reactive chlorine
source. 2000 Flushes Blue also included
a second tablet which included blue dye.
During the middle of the putative class period, the products’
formulation changed, reducing the amount of chlorine used.
Burns
initiated the instant case in 2010, and filed a
November 2011. The gravamen of the
complaint was that the products falsely represented that they did not harm
plumbing. Burns sought to define the
class as all consumers in the United States
who had bought the products during the applicable statute of limitations
period, excluding anyone who had a legal relationship to WD-40. Burns brought causes of action under the CLRA (Civ. Code, § 1750 et seq.), the
unfair competition law (Bus. &
Prof. Code, § 17200 et seq.) (the UCL), for express warranty and for unjust
enrichment. She also sought
Burns’s
claims were based on her allegations that
“the Products contain highly corrosive chemicals that, upon contact, attack
plastic, rubber, and metal toilet tank components causing them to disintegrate,
warp, swell, and blister, materially shortening the life span of these
parts.†In support of these assertions,
Burns cited to reports produced by the Metropolitan Water District (MWD) in
1998 and 2000, stating these reports concluded the products caused damage to
toilet components and caused them to leak.
Burns
further alleged she “purchased and used the Products believing they were
reasonably safe as represented on the Product package†but “suffered injury in
fact and lost money and property as a result of Defendant’s wrongful
conduct. She lost money as a result of
the wrongful conduct because she paid for the falsely advertised Products.â€
In
December 2011, WD-40 filed a motion to
dismiss the CLRA claim and on January 10, 2012, it filed a motion for summary judgment or
adjudication on the remaining causes of action.
motions were based on similar arguments and identical evidence, and WD-40 filed
separate statements of fact that were nearly identical. The basis of the motions was WD-40’s argument
that Burns had no admissible evidence of damage caused by the products. WD-40 also argued the express warranty cause
of action was barred by the statute of limitations.
WD-40
submitted evidence in the form of deposition testimony, discovery responses,
and the declaration of WD-40’s vice-president of research and development,
Ernest Bernaducci, Ph.D. The deposition
of Burns and her husband, Edward,
established that they lived in their San Clemente home from 1995 or 1996 to 2003, and again
from May 2006 to July 2007. Between 1996
and 2000, the house was remodeled, including the three bathrooms. Edward replaced two toilets and replaced the
inner mechanism of a third during the remodel.
Burns purchased 2000 Flushes five or six times between May 2006 and July
2007 for use in her home in San Clemente. She never purchased 2000
Flushes Blue.
While she
was using the product in 2006 and 2007, Burns did not replace any toilet tank
components or notice any problems. In
June or July 2007, they moved to a new house and discontinued use of the
product. Tenants moved into the San
Clemente house, and Burns had no knowledge about how the tenants cleaned the
toilets. Sometime during the tenants’
occupancy, two toilets in the San Clemente house began to run. Edward replaced the toilet flappers and other
components, which at that point were between seven and 12 years old. He threw away the old flappers and did
nothing to determine what might have caused them to fail. Burns had no information on these points
either, and she never personally saw any part of a toilet tank that was
damaged. Edward never told her that he
saw a part in the toilet tank that was disintegrated, warped, swollen or
blistered.
In 2010,
Burns learned from an attorney friend that 2000 Flushes could cause “long-term
damage[] to the bottom of the toilet.â€
She therefore came to believe that the chlorine in 2000 Flushes could
have contributed to the running toilet her tenants experienced in 2007 or
2008.
WD-40 also
submitted evidence regarding flapper valves in general, particularly their
allegedly limited lifespan. One of the
MWD reports on which Burns relied stated that flappers “may fail within 5
years, due either to normal ‘wear and tear’ or to other factors introduced by
the consumer.†WD-40’s expert,
Bernaducci, testified that to learn the cause of a flapper’s failure, it would
be important to know what materials were used to construct it, its design, and
the conditions under which it was used.
With
respect to the conclusions of the MWD reports, Bernaducci testified that those
studies, published in 1998 and 2000, were based on the formulation of the
products sold at that time. Neither of
the studies was based on the products sold in 2006 or 2007. Further, WD-40’s own testing on the current
products had not demonstrated any harm to toilet tank surfaces.
In
opposition, Burns submitted evidence that WD-40 had not done testing or studies
to demonstrate that the products were safe for plumbing. She introduced the declaration of Edward
Kresge, a Ph.D., in chemisty who had been involved with the MWD studies. He stated that all of the chlorinated
cleaners studied at the time damaged the flappers, and those test results could
be applied here regardless of the change in formulation. Kresge disagreed that all flappers would
eventually fail in an environment free of outside chemicals.
Burns also
introduced evidence of consumer complaints to WD-40 about the products, which
included evidence that WD-40 often settled such claims, marketing materials,
and other evidence, but no additional evidence related to Burns’s particular
situation.
The court
tentatively decided to grant the motions, providing the following modified
tentative ruling: “1st cause of action (CLRA):
Although complaint alleges plaintiff purchased two of defendant’s
products, discovery has established she purchased only one. No evidence that defendant’s product caused
any damage to plaintiff — toilet flapper was not preserved and toilet was not
under plaintiff’s ‘control’ for approx. 2 years before repair was performed as
plaintiff was renting out her home.
Plaintiffs expert’s opinions are based on a long-discontinued formula
for product and do not create triable issues of fact. [¶] 2d—5th causes of action: No triable issue
of fact concerning injury and loss of money or property. This is not a case of competing expert
declarations. Opinions by plaintiff’s
expert (Kresge) based on conjecture and do not raise triable issues of material
facts; expert opines as to possibilities, not likelihood.†The parties appeared for the hearing but
apparently submitted on the tentative.
The tentative ruling became the final order, and judgment was
subsequently entered.
II
DISCUSSION
A. Standard of Review
Summary
judgment “provide[s] courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.â€
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
844.) The trial court properly grants a
motion for summary judgment if all the papers submitted
establish there is no triable issue of material fact and the moving party is
entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
“Although a CLRA cause of action cannot be
summarily disposed of by means of a motion for summary adjudication or summary
judgment (Civ. Code, § 1781, subd. (c)), it can be dismissed before trial on a
motion for a determination that it is without merit (i.e., a no-merit
determination). [Citations.] In practice, courts nevertheless have applied
the standards applicable to motions for summary judgment and summary
adjudication in deciding motions for no-merit determinations. [Citations.]
One court commented that it could ‘see no meaningful distinction in the
choice’ between dismissal of a cause of action after a motion for summary
judgment and a motion for a no-merit determination. [Citation.]â€
(Smith
v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474-1475.) Thus, we apply the same standard to the CLRA
cause of action as to Burns’s other claims.
“[T]he party moving for summary
judgment bears an initial burden of production to make a prima facie showing of
the nonexistence of any triable issue of material fact; if he carries his
burden of production, he causes a shift, and the opposing party is then subjected
to a burden of production of his own to make a prima facie showing of the
existence of a triable issue of material fact.â€
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) “A prima facie showing is one that
is sufficient to support the position of the party in question.†(Id. at p. 851.) “There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the underlying fact in
favor of the party opposing the motion in accordance with the applicable
standard of proof. [Fn. omitted.]†(Id. at p. 850.)
We review the trial
court’s decision de novo, considering all evidence the parties offered in
connection with the motion and the uncontradicted inferences the evidence
reasonably supports. (
(2002) 101 Cal.App.4th 142, 148.)
B. The
Adequacy of the Trial Court’s Order
Code of Civil Procedure
section 437c, subdivision (g), requires the trial court to specify the reasons
for its decision to grant summary judgment in an order that “specifically
refer[s] to the evidence proffered in support of, and if applicable in
opposition to, the motion which indicates that no triable issue exists.†The trial court’s failure provide an adequate
order, however, does not automatically require a reversal. (Ruoff
v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, 1627.) The de novo standard for appellate review of
an order granting summary judgment frequently means the lack of a proper order
constitutes harmless error. (
Cal.App.4th 196, 199 [“[t]he lack of a statement of reasons presents no harm
where . . . independent review establishes the validity of the judgment.â€].)
In
Santa Barbara Pistachio Ranch v. Chowchilla
Water Dist. (2001) 88 Cal.App.4th 439, 449, the court explained when
noncompliance with Code of Civil Procedure section 437c, subdivision (g),
cannot be considered harmless error if the issues are complex and the evidence
conflicting and the trial court has “clearly decided credibility issues, at
least through its apparent decision to disregard certain contradictions in the
evidence.†De novo review is
inappropriate because in such a case because “[w]ithout a sufficient statement
of reasons from the court, we are precluded from undertaking a meaningful
review of the issues.†(
1134, 1146.)
The
court’s order here was adequate. It
specifically stated the key factor on which summary judgment was based as to
the 2000 Flushes product — a lack of evidence of causation and damage, which
was not rebutted by expert testimony. To
the extent the court also mentioned that Burns did not purchase 2000 Flushes
Blue, this either demonstrates a lack of standing on her part to bring any
claims regarding that product, or a lack of proximately caused damage, but in
either event, the result is the same.
This is not the kind of case that turned on the credibility of
testimony.
In
W. F. Hayward
Co. v. Transamerica Ins. Co. (1993) 16 Cal.App.4th 1101, a case Burns cites
on this point, the trial court’s order stated:
“‘Plaintiff failed to file suit on its
claim against the payment bond of Transamerica Insurance Company within six (6)
months, after the time stop notices could have been filed, as required by Civil
Code Sections 3249 and 3184.’ The minute
order also provided that the ‘[m]otion is granted on grounds set forth in the
moving papers, including defendant’s separate statement of undisputed material
facts.’†(Id. at p. 1111.) The
court held that “the court’s statement of reasons is quite adequate†because
“there is no question about the reason this motion for summary judgment was
granted.†(Ibid.) The same is true
here, and we therefore find the court’s order adequate.
C. WD-40’s Burden of Production
The moving party bears the initial burden of
production to make a prima facie case demonstrating no material issues of
triable fact exist. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) “[H]ow
the parties moving for, and opposing, summary judgment may each carry their
burden of persuasion and/or production depends on which would bear what
burden of proof at trial.†(
the civil standard, preponderance of the evidence, “if a defendant moves for
summary judgment . . . he must present evidence that would require a reasonable
trier of fact not to find any underlying material fact more likely than
not . . . .†(Ibid., fn. omitted.)
WD-40’s
primary argument in favor of summary judgment, which it repeats here, is that
Burns produced no evidence of damage proximately caused by its product. Proximately caused damage is a required
element of each of her causes of action.
Suffering “any damage†is a specific requirement under the CLRA. (Civ. Code., §§ 1780, subd. (a), 1781,
subd. (a); see also Tucker
v. Pacific Bell Mobile Services
California (2011) 201 Cal.App.4th 106, 122.) “[I]njury in fact and
. . . lost money or property as a result of†the violation is
also required under the UCL. (
298, 314.) A “breach of . . .warranty which proximately causes
plaintiff injury†is required to state a claim for breach of
warranty. (
Unjust enrichment is synonymous with restitution (Melchior
v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793) and is not a cognizable cause of action in the absence of damage
caused by the allegedly wrongful behavior.
injunction is a remedy, not a cause of action in itself. A viable cause of action must exist before a
court can grant injunctive relief. (Camp v. Board of Supervisors (1981)
123 Cal.App.3d 334, 356.)
Thus,
to sustain any cause of action in her complaint, she had two possible
routes. First, Burns could establish
that she had personally suffered damage to her plumbing because of her use of
the products, thus raising the inference that the representations were
false. Second, she could produce
evidence that the products caused such universal, almost unfailing damage, that
an inference of falsity of the “safe for plumbing†statement must surely
follow.
WD-40
produced evidence to show that Burns could not demonstrate such damage under
either theory. With respect to 2000
Flushes Blue, it relies on her admission that she never purchased or used it.
respect to 2000 Flushes, she used the product five or six times over a period
of approximately 14 months, during which she experienced no plumbing
problems. Burns and her husband then
moved out of the house. During her
tenants’ occupancy, sometime in 2007 or 2008, two of the three toilets
in the house began to run, and Edward replaced the toilet flappers and
components. Burns had no knowledge
regarding how the tenants cleaned the toilets.
The parts were not preserved or photographed, and Edward did nothing to
determine what might have caused the failure.
In sum,
Burns stopped using the products months before any plumbing problem arose, she
did not have control over the toilets at the time of the problems, she can
offer no facts regarding how the toilets were cleaned or with what products
after she left, and no actual cause of the flapper failure was ever
determined. Without more, these facts
are insufficient to establish harm proximately caused by the products, and
therefore harm caused by the alleged false advertising. Given the lapse in time, Burns’s lack of
control over the toilets once she moved out, and the failure to preserve the
damaged flappers, no reasonable trier of fact could conclude the products
caused the plumbing damages, raising the inference that the advertising was
actually false.
We thus
turn to the second possible theory, that the products caused such widespread
and nearly unfailing harm that the representations of safety were surely
false. WD-40’s evidence addressed the
1998 and 2000 MWD reports, which Burns had relied on heavily in her
complaint. Bernaducci’s declaration
explained that those studies were based on a different formula as well as a
different delivery system (canister as opposed to tablet). The current product used a different active
ingredient which was slower to dissolve and less reactive than the product the
MWD tested. The current products were
continually tested in “flush labs†to test the products performance and safety. In the 16 years he had been supervising the
flash labs, Bernaducci had “never seen, or been made aware of, any harm to any
of the surfaces in the toilet tanks.â€
Further, he testified the products were designed to avoid the type of
harm at issue in this lawsuit. Given
these facts, WD-40 met its burden by producing evidence that demonstrates Burns
cannot establish a prima facie case on any of her causes of action.
D. Burns’s Burden of Production
Because
WD-40 met its burden of production, the burden then shifts to Burns to
demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield
Co., supra,
25 Cal.4th at p. 850.) Thus, Burns was required to produce
admissible evidence demonstrating proximately caused harm. On either the personal harm or universal harm
theory, she has not come anywhere close to doing so. She submitted no evidence of import regarding
personal harm — her “beliefâ€
that 2000 Flushes caused her toilets to run is speculation, not evidence.
With
respect to the notion that the products necessarily damage all plumbing, Kresge’s expert testimony was largely
premised on the studies done on the much earlier versions of the products. Although he testified the results were
applicable regardless of the change of formula, the trial court properly found
this was conjecture and raised only possibilities, not likelihood. Kresge had done no testing or research on the
version of the product Burns actually used, and only testified that the
chlorine in the product “can cause significant changes in physical properties
of the flapper. . . . The
attack usually begins on the surface and progresses toward the interior.†We must agree with the trial court that this
opinion was insufficient to raise a triable issue. Kresge’s language such as “can cause†and
“usually begins†with respect to the current formulation were not enough to
establish proximate cause. Therefore,
the evidence that she points to from the 1998 and 2000 MWD reports was
indisputably based on an earlier formulation of the products, and failed to
prove anything relevant here.
The
additional evidence submitted by Burns, including consumer complaints, is also
insufficient to established per se damage by the products. If the products caused damage to every
toilet, WD-40 would assuredly have received more than the 43 complaints Burns
points to in 2008. Evidence
regarding marketing, WD-40’s knowledge about the product, and other factors is
simply not helpful to Burns in the absence of evidence the representations were
false.
We
also reject Burns’s argument that the declaration of Dr. Maureen Reitman,
submitted in opposition to the class certification motion, somehow proves that
the products (and indeed, all similar products containing any amount of
chlorine) invariably cause damage to plumbing.
Burns argues: “WD-40 does not dispute (indeed,
its expert Dr. Maureen Reitman testified) that the rubber and plastic in the
toilet tank ‘will be affected by chlorinating agents[.]’†Burns does not mention this statement is
taken out of context. Reitman’s
declaration actually states: “The
majority of polymer and elastomer compounds, including those used in flappers,
will be affected by chlorinating agents, but not all these changes will lead to
failure. . . . Any of these effects may indicate degradation which can, but
won’t necessarily, lead to premature failure.â€
Thus, we reject Burns’s implication that WD-40 acknowledged that
chlorine will nearly invariably harm plumbing.
As
discussed above, the evidence relevant to Burns does not establish a triable
issue of fact that the products caused damage to her toilets. She has only her belief, established years
later, that the chlorine in 2000 Flushes could have contributed to the running
toilets her tenants experienced in 2006 or 2007. This amounts to supposition rather than
evidence, and is simply insufficient to establish a triable issue of material
fact. Thus, the trial court properly
granted summary judgment.
III
DISPOSITION
The
judgment is affirmed. WD-40 is entitled
to its costs on appeal.
MOORE,
J.
WE CONCUR:
O’LEARY,
P. J.
RYLAARSDAM,
J.
name="_ftn1" title="">[1]
Burns also filed a motion for class certification, which was calendared for the
same hearing date. The motion was
ultimately taken off calendar without a ruling.
name="_ftn2" title="">[2]
We refer to Edward Burns by his first name to avoid confusion. No disrespect is intended.
