Takkesh v. Payless Shoesource
Filed 4/7/06 Takkesh v. Payless Shoesource CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| LINA TAKKESH, Plaintiff and Appellant, v. PAYLESS SHOESOURCE, INC., Defendant and Respondent. | G035302 (Super. Ct. No. 03CC11319) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Request for judicial notice. Denied.
Rami Kayyali for Plaintiff and Appellant.
Kinkle, Rodiger and Spriggs, Scott B. Spriggs and Michael F. Moon for Defendant and Respondent.
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Introduction
One of the required elements of a claim for strict products liability is that the alleged defect in the product caused the injury to the plaintiff. The plaintiff bears the burden of proof on this element. In this case, after a three-day bench trial, the court filed a statement of decision finding that plaintiff Lina Takkesh had failed to prove the causal connection between the alleged defect in the sandals she purchased from defendant Payless Shoesource, Inc. (Payless), and the injuries she suffered. That finding was supported by substantial evidence.
Takkesh argues the trial court improperly disregarded expert testimony and an alleged stipulation by Payless that there was glue on the allegedly defective sandals. In its statement of decision, the trial court found there was glue on the sandals, and that finding was supported by the evidence. There is no issue in this regard on appeal.
At oral argument, Takkesh asserted the trial court erred by failing to grant her motion for a new trial. This issue was not raised in Takkesh's appellate briefs, and has therefore been waived. Even if we were to consider the issue, we would conclude the trial court did not abuse its discretion in denying the motion.
Finally, Takkesh argues the trial court abused its discretion in denying several of her discovery motions. Based on the appellate record, we conclude there was no abuse of discretion.
Therefore, we affirm the judgment.
Statement of Facts
Takkesh purchased a pair of sandals from Payless on August 24, 2002. Takkesh wore the sandals for about a week, beginning on September 15, 2002, and alleged she developed chronic contact dermatitis as a result.
On September 15, 2003, Takkesh sued Payless, alleging a manufacturing defect in that the inside of the leather straps on the sandals contained a harmful glue that was not part of the design or specifications of the sandals. Takkesh filed an amended complaint on December 15, 2003.[1] Following the bench trial, the court issued a minute order on November 24, 2004, finding in favor of Payless. Judgment was entered January 25, 2005. Takkesh's motion for a new trial was denied after a hearing on February 4, 2005.
Takkesh filed a request for a statement of decision, and both Takkesh and Payless submitted proposed statements of decision. On March 2, 2005, the trial court issued its own statement of decision reading, in relevant part: â€
