Garibay v. Callery/Conway

Filed 5/25/10 Garibay v. Callery/Conway CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Raul A. Sahagun, Judge. Reversed.

The Yarnall Firm, Delores A. Yarnall; Ammirato & Palumbo, Vincent A. Ammirato for Plaintiff and Appellant.

K&L Gates, Nathaniel S. Currall, David G. Klaber, Mark D. Feczko, Jared S. Hawk for Defendant and Respondent.

___________________________________________________

This case arises from an accident at a Douglas Steel facility when an employee, plaintiff Salvador Garibay, lost most of his left hand on a machine called a slitter, which uses rotating knives to cut pieces of steel. The slitter plaintiff used on the day he was injured lacked a safety guard (which was subsequently installed). Defendant, Callery/Conway/Mars HV, Inc., dba Herr-Voss Stamco, manufactures slitters and safety guards. However, defendants corporate predecessor had actually manufactured the particular slitter in question, and that predecessor company had been sold in bankruptcy.

The trial court granted summary judgment in favor of defendant. The court found, in pertinent part, as follows: (1) that defendants assumption of liability for product defects was precluded by the terms of both the bankruptcy courts sale order and the asset purchase agreement selling defendants predecessor company; (2) that there was no viable theory of successor liability, such as the product line exception, because of the preemption of state law; and (3) that plaintiffs theory of an independent negligent act occurring during defendants training session two months before the accident was missing from his pleadings, and his related motion to amend was untimely.

We reverse because defendants service technicians engaged in inspection, service and instruction duties regarding the slitter, and the language in plaintiffs complaint sufficiently alleged defendants own acts of negligence occurring long after the bankruptcy of its predecessor. Plaintiffs complaint included, for example, allegations of defendants own failure to warn and defendants own negligent inspection, installation, testing, instruction, service, repair and maintenance, as well as defendants own breach of express warranty that the slitter was reasonably safe to use as it then existed without a safety guard. Thus, the alleged absence of any successor liability because of the predecessors bankruptcy is not determinative of summary judgment.

Nor was it necessary that the complaint include the word training to reflect defendants negligence during a safety and instruction training session on use of the slitter. The concept of negligent training was sufficiently encompassed by the allegation that defendant, for example, was engaged in conduct related to warning and properly maintaining the slitter so it could safely operate in its intended manner. In any event, the court should have granted the requested continuance to permit a clarifying amendment of the complaint to conform to proof.

FACTUAL AND PROCEDURAL SUMMARY

A company known as Genesis Worldwide operated a collection of subsidiary companies, including Herr-Voss Stamco, which manufactured and serviced steel-slicing machines know as slitters. In 2001, Genesis Worldwide transferred its assets through a bankruptcy proceeding to a new entity called Genesis Worldwide II. The asset transfer was accomplished by Genesis Worldwide agreeing to file for bankruptcy in September of 2001, and the purchasing entity agreeing to buy it and its subsidiaries, including Herr-Voss Stamco, through the bankruptcy procedure. In November of 2001, the bankruptcy court approved the sale and the asset purchase agreement. Part of the asset purchase agreement specifically provided for the purchasing entity to buy Genesis Worldwides assets without its liabilities or any encumbrances.

Several days after the deal closed, the purchasing entity, Genesis Worldwide II, sold the Herr-Voss Stamco enterprise to defendant, Callery/Conway/Mars HV, Inc., which proceeded to do business under a fictitious trade name, the same name used by the predecessor subsidiary, Herr-Voss Stamco. After defendant purchased Herr-Voss Stamco, it continued to conduct the same business as its predecessor and operated under the same name. It also employed the same employees and sold to the same customers as did its predecessor. Defendant also continued to design, manufacture and install slitters and safety guards for slitters, and continued to service, inspect, and maintain Herr-Voss Stamco slitters for the prior customers, including plaintiffs employer.

In September of 2005, defendant sent a service technician to undertake an almost seven-hour-long service call with Douglas Steel employees, including plaintiff, at the Douglas Steel workplace. During the service call, defendants service technician provided slitter operator training and showed plaintiff and other Douglas Steel employees how to set up the slitter and to trouble-shoot problems. The technician also specifically addressed safety issues regarding the slitter.

Approximately two months after defendants service call at Douglas Steel, plaintiff used a slitter that lacked a safety guard, lost his balance, and fell toward the slitter. Plaintiffs left hand went into the unguarded rotating knives, and he suffered the traumatic amputation of most of his hand. Douglas Steel subsequently had a safety guard installed on the slitter. If the safety guard had been in place at the time of the accident, plaintiffs injury would have been prevented.

Plaintiff sued Herr-Voss Stamco, the name used by the entity that had actually conducted service calls and had communicated with plaintiff regarding how to operate the slitter safely. Plaintiffs complaint alleged three causes of action against defendant (and other unnamed defendants)product strict liability, general negligence, and breach of express and implied warranties. Plaintiffs complaint alleged that defendants had defectively designed, planned, developed, and manufactured an unsafe slitter. However, plaintiff also alleged, in pertinent part, that defendants were liable because they had inspected, tested, installed, maintained, and repaired the slitter, and provided instructions and warnings and monitored for service and did service said product.

Plaintiffs complaint specifically alleged that the slitter was unsafe because of the way defendant negligently warned, inspected, tested, maintained, and repaired the slitter. Plaintiff also alleged that at all times prior to November 28, 2005, the date of his injury, the slitter lacked a guard. Regarding plaintiffs breach of warranty cause of action, the complaint alleged that prior to November 28, 2005, defendants were in the business of warning, inspecting, testing, maintaining, and repairing the slitter, and that defendants breached express[] warranties that the slitter would be reasonably safe when used in a reasonable manner as plaintiff used [it] at the time of the accident.

Following some procedural complications concerning the correct name of the entity sued by plaintiff, defendant Callery/Conway/Mars HV, Inc., dba Herr-Voss Stamco, answered plaintiffs complaint. Defendant generally denied the allegations and asserted numerous affirmative defenses. Defendants answer specifically denied that it negligently performed its services and asserted, for example, that after it performed its services plaintiff and others inspected and approved its work, found it to be satisfactory, and thus purportedly waived any claim for damages. Defendant also asserted a lack of notice as to any defects or inadequacies in the work performed by [the] answering defendant.

Thereafter, defendant moved for summary judgment; it did not seek summary adjudication of any issues. Defendant argued that one of its many affirmative defensesthe bankruptcy of its predecessorconstituted a complete defense to the action. Defendant argued as follows: that it did not design, manufacture, or sell the slitter; that an asset purchase agreement and a bankruptcy courts sale order explicitly precluded liability for any claims, even claims arising after the sale; and that it could not be liable under a theory of successor liability for the acts of its bankrupt predecessor.

Defendants motion for summary judgment, however, did not specifically address plaintiffs additional theories of liability for defendants own conduct independent of the conduct of its predecessor, including defendants alleged negligent failure to warn or negligent performance of its services or instruction as to the safe use of the slitter. Defendants motion thus did not specifically address any of its conduct that occurred after the bankruptcy of its predecessor company and after defendant began to run the Herr-Voss Stamco business and prior to plaintiffs injury.

Plaintiff opposed the motion for summary judgment. Plaintiff noted that there was no motion for summary adjudication, and argued that because defendant had failed to satisfy its burden of proof by not addressing all bases for liability pled in the complaint, the burden never shifted to plaintiff. Plaintiff also submitted evidence attempting to show defendants independent negligent conduct, after defendant purchased the Herr-Voss enterprise, legally caused plaintiffs injury. Plaintiff submitted declarations establishing, for example, that additional stepping space to operate the slitter and a safety guard (subsequently installed) could have prevented the accident, and that plaintiff had personally participated in a training and instruction session by defendant two months before the accident. Plaintiff also disputed the successor liability defense, in pertinent part, because (1) the asset purchase agreement was specifically conditioned on the subsequent filing of bankruptcy, (2) the asset purchase agreement only precluded liability claims prior to the agreement (and plaintiffs accident was after the agreement), and (3) successor liability continued because one of the directors was on the corporate boards of both the buying and selling corporations.

In reply to the opposition to the summary judgment motion, defendant argued that the broad language of both the asset purchase agreement and the sale order barred any claims against it, even those that were unknown or not existing at the time of the closing of the sale. Defendant also argued that plaintiffs complaint did not specifically allege any negligent training by defendant, and that other language in the complaint could not be construed to include such conduct by defendant.

Plaintiff received defendants reply two business days before the hearing on the summary judgment motion; the next day (one day before the hearing), plaintiff responded to defendants reply. Plaintiff defended the sufficiency of the complaint and urged that the verbs used in the complaint included allegations of the failure to warn, negligent servicing, negligent inspection, and asserted defendants breach of express warranties. Alternatively, plaintiffs written response included a request for a continuance of the hearing on the summary judgment motion to allow plaintiff to be heard on a motion for leave to amend the complaint to conform to proof.

At the hearing on the defendants motion for summary judgment, the court indicated its tentative agreement with the motion for summary judgment and acknowledged it had received but not read plaintiffs response papers. Plaintiffs counsel explained that plaintiff had submitted a written request to continue the hearing on the summary judgment motion to allow plaintiff to be heard on a motion to amend to conform to proof. Counsel then reiterated his request for a continuance.

The court took the matter under submission. It later granted defendants motion for summary judgment based on the defendants affirmative defense of the bankruptcy of the predecessor company, which barred defendants successor liability. The court found that the language of the asset purchase agreement and the bankruptcy court sale order provided for the transfer of assets to defendant free and clear of all claims and liabilities, whenever they arose and without any limitations. The court also noted that plaintiffs complaint was insufficient to maintain an action against defendant for its own misconduct, even conduct undertaken after defendant purchased the Herr-Voss Stamco enterprise, because the theory of an independent negligent act occurring during a training session was not in the pleadings.

The court implicitly denied plaintiffs request for a continuance, and found that plaintiff had failed to move to amend the pleadings while the motion for summary judgment was still pending. Thereafter, the court denied plaintiffs motion for a new trial.

This appeal ensued.

DISCUSSION

I. Appeal and Review.

The judgment for defendant is final and appealable. (Code Civ. Proc., 437c, subd. (m)(1).) A motion for summary judgment is granted and the moving party is entitled to judgment as a matter of law when no triable issue exists as to any material fact. (Code Civ. Proc., 437c, subd. (c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.)

The defendant moving for summary judgment bears the burden of establishing, by declarations and evidence, a complete defense to plaintiffs action or the absence of an essential element of plaintiffs case. (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858; Code Civ. Proc., 437c, subd. (o).) An appellate court reviews a grant of summary judgment de novo. (Kahn v. East SideUnionHigh School Dist. (2003) 31 Cal.4th 990, 1003.)

Because a summary judgment motion raises only questions of law regarding the construction and effect of supporting and opposing papers, we independently apply the same three-step analysis required of the trial court. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548; see Code Civ. Proc., 437c, subd. (o).) First, we identify issues framed by the pleadings. Second, we determine whether the moving partys showing established facts that negate the opponents claim and justify a judgment in the moving partys favor. Third, if the moving party makes such a showing, we finally determine whether the opposition demonstrates the existence of a triable, material factual issue. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252.)

The burden of a defendant moving for summary judgment only requires that the party negate plaintiffs theories of liability as alleged in the complaint. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) The moving party need not . . . refute liability on some theoretical possibility not included in the pleadings. (Cochran v. Linn (1984) 159 Cal.App.3d 245, 250.) Nonetheless, in deference to the strong public policy favoring a trial on the merits, we strictly scrutinize the defendants summary judgment papers and liberally construe those of the plaintiff, resolving all doubts as to material, triable issues of fact in favor of the plaintiff and the denial of summary judgment. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)

II. The language used in plaintiffs complaint was sufficiently broad to encompass independent service-related conduct and warranty issues made directly to plaintiff.

When, as here, a plaintiff pleads a myriad of facts giving rise to several theories of liability, plaintiff will prevail on summary judgment even if only one theory applies. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713-714.) Thus, a defendant moving for summary judgment must bear the burden to define all of the theories alleged in the complaint and challenge each factually. (Id. at p. 714.)

In the present case, although the gravamen of plaintiffs complaint alleged the faulty manufacture, design, or sale of the slitter (which was conduct attributable, if at all, to defendants predecessor), plaintiff also broadly pled allegations about defendants own conduct that gave rise to liability. For example, plaintiffs complaint alleged that as to its causes of action for strict liability and negligence, defendant had inspected, tested, installed . . . maintained, repaired and supplied the slitter and its appurtenant parts and provided instructions, and warnings, and thereafter monitored for service and did service the slitter. Plaintiff alleged that defendants own conduct caused plaintiffs injury because of the unsafe manner in which defendant warned about, inspected, maintained, and repaired the slitter. Also, on the date of the accident (as well as when it was originally designed and manufactured), the slitter lacked a guard and failed to protect an operator, such as the plaintiff herein, who would foreseeably be required to make certain adjustments to the machine while in operation. Additionally, the machine was not only defectively designed and manufactured, but was unsafe for lack of warning, inspection, maintenance, and repair.

Furthermore, plaintiff broadly alleged legal and proximate causation of his injury as a result of the negligence and breaches of duties and responsibilities by defendant. Specifically, plaintiff asserted that at all times relevant herein, defendant breached its duty of due care to properly, carefully, and safely . . . inspect, test, . . .  maintain [and] repair the slitter. Similarly, defendant tortiously, carelessly, wrongfully and negligently failed to exercise reasonable care, including in the inspecting, testing, maintaining, and repairing of the slitter causing the machine to be in an unsafe condition at the time of the accident.

As to plaintiffs cause of action for breach of express and implied warranties, he similarly alleged conduct in addition to the design, manufacture or sale of the product. Plaintiff incorporated prior allegations in the complaint and reiterated defendants failure at the time of the accident regarding warning, inspecting, testing, installing, supplying, maintaining, and repairing the slitter and its appurtenant parts, which could reasonably include the subsequently installed part known as the safety guard. Plaintiff specifically alleged that at all times herein mentioned defendant impliedly warranted that the machine and its parts were fit for the purposes for which they were intended, that defendant breached express[] warranties that the slitter and its appurtenant parts would be reasonably safe when used in a reasonable manner as plaintiff used the machine on the date of the accident, and that such breach of warranties caused plaintiffs injury.

It is obvious from the above quoted portions of the complaint that plaintiff asserted causes of action in addition to claims related to the alleged unsafe design, manufacture, and sale of the productclaims which usually would only apply to defendants predecessor in bankruptcy. (Ray v. Alad Corp. (1977) 19 Cal.3d 22, 24-31.) However, on the face of the complaint, plaintiff also charged defendant with its own independent conduct, as a separate entity, and asserted defendants negligent and unsafe service and maintenance of the slitter during the time frame that included plaintiffs injury, giving rise to liability under negligence and breach of warranty theories.

Defendants motion for summary judgment was premised on two arguments, both of which countered only allegations of unsafe design, manufacture, and sale. First, defendant argued that it was entitled to summary judgment because it was assigned certain assets that its parent company had purchased from debtors through a court-approved bankruptcy sale, and that under the asset purchase agreement and the bankruptcy court sale order the assets were free of all debts and liabilities associated with claims related to the slitter. Second, defendant argued in its motion for summary judgment that it was not liable under any theory of successor liability for the slitter, which was designed, manufactured, and sold by its predecessor company, because none of the exceptions to the general rule against successor liability applied.

However, those two arguments support the absence of liability only for conduct attributable to the original, predecessor company. Those two arguments do not defeat defendants liability for any independent negligent acts or breach of warranty, engaged in as a separate entity and occurring long after the bankruptcy sale, such as defendants alleged unsafe service and maintenance of the slitter and its alleged negligent instruction and warning as to use of the slitter. Significantly, defendant was aware of the latter allegations by plaintiff, as indicated by its answer to the complaint, which asserted that plaintiff had not objected to and had purportedly waived any defects or inadequacies in the services or work performed by defendant itself. Defendant was thus aware that it was being sued for its own independent conduct, and not merely for the conduct of its predecessor, further revealing the broad scope of plaintiffs complaint. (See AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065; Jackson v. Hardy (1945) 70 Cal.App.2d 6, 14.)

However, the trial court focused on only the allegations in plaintiffs complaint pertaining to the conduct of defendants predecessor, not on defendants own independent conduct. For example, the trial court concluded as follows: It is undisputed that defendant did not design, manufacture or sell the metal slitting equipment. . . . Defendants liability hinges on whether it assumed liability for the products defects in connection with the sale of certain assets under an Asset Purchase Agreement and Sale Order through a court approved section 363 bankruptcy sale, or whether it is liable under a theory of successor liability such as the product line exception . . . .

Thus, the trial court apparently did not appreciate the broad scope of plaintiffs complaint, which went beyond merely the design, manufacture and sale of the slitter, and it erred in granting summary judgment.

III. The complaint did not require an amendment to include the word training; in any event, the trial court abused its discretion in denying plaintiffs request to amend.

The trial court found that plaintiffs theory of an independent negligent act occurring during a training session is completely missing from the pleadings. Defendant successfully argued to the trial court that the absence of the word training in the complaint was a fatal flaw in plaintiffs case. The trial court did not permit amendment of the complaint, because it found plaintiff purportedly did not move to amend while the motion for summary judgment was still pending.

However, plaintiffs response to defendants reply to plaintiffs opposition to the motion for summary judgment did, in fact, request a continuance to amend the complaint. Also, several days later at the hearing on the motion, plaintiff made a verbal request for a continuance which was obviously while the motion was still pending because the court took the motion under submission. Thereafter, the court implicitly denied plaintiffs request for a continuance of the summary judgment motion to afford plaintiff the opportunity to amend the complaint to conform to proof.

We find that that the scope of the complaint broadly included the concept of negligent training when, for example, the complaint alleged in pertinent part that defendant negligently failed to provide proper warnings at all times relevant, which would include during the time of the training session two months before plaintiffs injury. The concept of negligent training was sufficiently encompassed by the allegation that defendant was engaged in conduct related to warning and properly maintaining the slitter so it could safely operate in its intended manner. An amendment of the complaint would have been appropriate for the sake of enhanced clarity, but an amendment was not necessary to adequately advise defendant of plaintiffs claims.

In any event, the trial court was mistaken in believing the requested continuance was untimely. It apparently misperceived the procedural posture of the case because the motion for summary judgment was still pending during plaintiffs written and verbal requests for a continuance. As a result of the trial courts misperception, it failed to properly exercise its discretion, and it should have granted a continuance to permit an amended complaint. (See Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 264 [verbal request for a continuance is sufficient]; Honigv. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965 [in the interest of justice, amendments may be granted even during trial]; Code Civ. Proc.,  437c, subd. (h) [continuance required only when affidavit and appropriate showing].) Nor would the statute of limitations bar such an amendment, which relates back to the same general set of facts. (Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600-603.)

Accordingly, no amendment of the complaint was required. Nonetheless, the trial court abused its discretion in denying the requested continuance to permit an amendment, which could have provided the enhanced clarity defendant argued was lacking.

IV. Neither the asset purchase agreement nor the bankruptcy courts sale order can insulate defendant from liability for a subsequent independent act that has no factual basis in events occurring prior to the agreement or order.

We acknowledge that federal law authorizes a bankruptcy trustee to sell property of the bankrupt estate free and clear of any interest in such property. (11 U.S.C.  363(f).) Also, the bankruptcy courts sale order and the terms of the asset purchase agreement herein specifically directed that title to the debtors purchased assets be transferred to the parent company free and clear of all present and future claims and liabilities. The sale order specifically stated that the parent company and its assigns shall not be liable for any of the debtors liabilities whether known or unknown as of the Closing, now existing or hereafter arising.

Nonetheless, the bankruptcy of defendants predecessor can only be a potential defense to the conduct of that predecessor company. (See, e.g., Myers v. U.S. (S.D.Cal. 2003) 297 B.R. 774 [dismissal of an environmental tort claim in bankruptcy against a purchasing corporation where plaintiffs injury occurred prior to bankruptcy].) In the present case, the sale orders exemption from liabilities whether known or unknown as of the Closing, now existing or hereafter arising, encompassed liabilities arising later, but only when based on underlying facts occurring prior to the sale order.

Any other interpretation of the sale order would lead to an absurd result and would go way beyond the free and clear (11 U.S.C.  363(f)) languages intent of maximizing the value of the bankruptcy estate. (See Toibb v. Radloff (1991) 501 U.S. 157, 163; In re WBQ Partnership (Bankr. E.D.Va. 1995) 189 B.R. 97, 108.) The sale order can only pertain to claims which have the potential to affect the bankruptcy estate. A claim based on facts occurring after the sale order could not affect the assets available to the bankruptcy estate, and the reasons for precluding successor liability do not apply.

Moreover, to hold otherwise would result in the absurd possibility of a bankruptcy sale forever insulating a successor company from any and all liability for any of its own future misconduct. The bankruptcy and ensuing sale did not give defendant a free pass, for example, to escape liability for its own failure to warn plaintiff about the consequences of operating the slitter without a guard, or for defendants own negligent undertaking of its equipment service-related duties during the full-day seminar that plaintiff attended. There simply is no authority for the proposition that the bankruptcy of a predecessor company can be a defense to a successor companys subsequent and independent negligent conduct occurring long after the bankruptcy courts sale order.

Because defendant herein has failed to show a complete defense to all of plaintiffs causes of action, it is of no consequence to the present appeal whether plaintiff also can establish an exception to the general rule that no strict tort liability can be imposed on a successor corporation that purchases the assets of a predecessor in an arms length transaction. (Ray v. Alad Corp., supra, 19 Cal.3d at pp. 24-31 [discussing factual circumstances resulting in the purchaser assuming the sellers liabilities].) It is thus unnecessary to discuss whether plaintiff can also prevail on a theory of successor liability with a product line or other exception. (Ibid.)

However, it is appropriate to note that California has a strong state policy of protecting its citizens from injuries due to defective products and has expanded successor liability in certain circumstances (Nelson v. Tiffany Industries, Inc. (9th Cir. 1985) 778 F.2d 533, 534, citing Ray v. Alad Corp., supra, 19 Cal.3d 22), and that in the context of the present case there is no federal preemption. In the present tort case, state law exceptions permitting successor liability may be litigated and are not preempted by federal bankruptcy law. Federal bankruptcy law specifically limits the free and clear bankruptcy sale language only to where applicable nonbankruptcy law permits such a sale (11 U.S.C.  363(f)(1)), and California state law expanding successor liability is thus not preempted. (Compare Myers v. U.S., supra, 297 B.R. at p. 784 [with no discussion of subdivision (f)(1), court found preemption [u]nder the facts of this case, which involved an injury to plaintiff prior to bankruptcy] with Douglas v. Stamco (2d Cir. Feb. 1, 2001, No. 09-1390-CV) [2010 WL 337043] [applying New York state law in rejecting a successor liability claim, implicitly finding no preemption].)

We decline to further address successor liability because the issue involves substantial questions of fact, and the trial court cited but avoided application of the successor liability factors discussed in Ray v. Alad Corp., supra, 19 Cal.3d 22. The trial court stated, for example, that [e]ven if plaintiff could convince a trier of fact that factors weighed in favor of finding successor liability, plaintiff could not prevail because of preemption (which is an erroneous legal conclusion), and the trial court thus did not assess the relevant factors. It is most appropriate for an appellate court to leave to the trier of fact in the first instance the determination of whether there is a factual basis for finding successor liability.

Accordingly, because neither the asset purchase agreement nor the bankruptcy courts sale order can insulate defendant from liability for a subsequent independent act occurring long after the agreement or order, the trial court erred in granting summary judgment.

DISPOSITION

The judgment is reversed. Plaintiff is entitled to costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J.

CHAVEZ, J.

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