Walkowiak v. MP Associates





Filed 3/9/11 Walkowiak v. MP Associates CA2/7




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

CHRISTOPHER WALKOWIAK et al., Plaintiffs and Appellants, v. MP ASSOCIATES et al., Defendants and Respondents.

B220494 (Los Angeles County Super. Ct. No. VC051140)

APPEALS from judgments of the Superior Court of Los Angeles County, Raul A. Sahagun and Brian F. Gasdia, Judges. Affirmed in part and reversed in part with directions.
Girardi | Keese, Amanda McClintock; Niddrie, Fish & Buchanan, Martin N. Buchanan; Law Offices of Martin N. Buchanan and Martin N. Buchanan for Plaintiffs and Appellants.
Waters, McCluskey & Boehle and Gregg W. Brugger for Defendant and Respondent MP Associates.
Bragg & Kuluva and Sherry L. Grguric for Defendant and Respondent Roger George Rentals.
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INTRODUCTION

Plaintiffs Christopher and Katherine Walkowiak appeal from summary judgments entered in favor of defendants MP Associates and Roger George Rentals. Plaintiffs contend the trial court erred in granting summary judgment based on the sophisticated user defense. They also claim evidentiary error. While we agree with the trial court that the sophisticated user defense applies here to bar liability based on the failure to warn, we nonetheless conclude the trial court erred in granting summary judgment as to all causes of action. For that reason, we reverse the summary judgment in favor of MP Associates. As to Roger George Rentals, we affirm.

FACTS

A. Defendants' Manufacture and Sale of Pyrotechnic Devices
Defendant MP Associates (MP) manufactures pyrotechnic devices. Defendant Roger George Rentals (RGR) rents and sells special effects supplies, including pyrotechnic devices manufactured by MP. Its primary clientele is the entertainment industry.
Thaine Morris (Morris) is a 50 percent owner of MP and the owner of Skeeter Special Effects, Inc., which does business as RGR. Morris holds a Class 1 Pyrotechnic Operator license from the State of California and a federal license enabling him to handle any type of pyrotechnic or explosive material used in the entertainment industry.
In the early 1990's, Morris developed a 44mm simulated stinger missile (SSM) for use in military training. The SSM consists of a cardboard tube with a red plastic cap on one end and a white plastic cap on the other end. The tube contains pyrotechnic materials near the end with the red plastic cap. Prior to ignition, the white plastic cap is to be removed. Upon ignition, a pellet of pyrotechnic material is propelled out of the end of the tube by gunpowder. It produces bright white light and smoke, and it travels about 200 feet. It simulates the appearance of a missile.
MP manufactured the SSM and initially sold it to the military. Morris demonstrated how to use the SSM. Later, MP began marketing the SSM to the entertainment industry for special effects use. MP did not change or add to the labeling or packaging of the SSM for sale to the entertainment industry.
The SSM can be used with a launcher or by any means which would fix the direction in which it is launched. Morris had demonstrated the SSM to the military without using a launcher. However, he was aware that launchers were made for use with the SSM. MP did not manufacture such launchers.
The SSM had a sticker on the side of the cardboard tube which read, â€