Wachter v. Tobin Steel

Filed 4/12/07 Wachter v. Tobin Steel 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Abraham Kahn, Judge. Affirmed.

Holstein, Taylor, Unitt & Law and Brian C. Unitt for Plaintiffs and Appellants.

Acker, Kowalick & Whipple, Jerri Lynn Johnson and W. Frederick Kowalick for Defendant and Respondent.

* * * * * *

Appellant Keith Wachter (Wachter) fell from a roof that collapsed underneath him. He sued the manufacturer of the steel hangers that were used in the construction of the roof, respondent Tobin Steel Company, Inc. (Tobin), contending that the hangers were defectively designed and that Tobin failed to provide adequate warnings regarding installation. Summary judgment was granted in favor of Tobin. Because we agree that Wachter failed to establish a triable issue of material fact, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Evidence

The moving papers establish the following without material dispute: On March 29, 2004, Wachter was pushing a 300-pound generator across a flat finished roof to coworkers when the roof underneath him collapsed. He fell 35 to 40 feet to the ground and sustained serious injuries. The roof was being constructed by his employer, Panelized Structures, Inc. (Panelized), which had purchased TF-34 and TF-46 steel roof panel hangers from Tobin. The hangers are industry specific steel pieces engineered for the purpose of securing the wood panels of a panelized roof. Tobin designs, manufactures and sells the hangers.

Tobin and Panelized have been doing business together for 10 years, and Panelized is Tobins largest customer. Tobin has sold to Panelized hundreds of thousands of steel hangers that are the same as or substantially similar to the hangers that were used on the day of Wachters injuries. The installation instructions in Tobins catalog call for the hangers to be secured by two nails in the top flange or TF portion of the hangers, which then have a load bearing weight of 825 pounds. These same instructions are also provided in an evaluation report prepared by the International Conference of Building Officials (ICBO), which certified the hangers as acceptable for use. At the spot from which Wachter fell, no nails had been placed in the hanger.

The Lawsuit

Wachter sued Tobin for breach of warranty, strict products liability and negligent products liability. The gravamen of his claims was that Tobin defectively designed the hangers and failed to provide proper warnings regarding installation. His wife, Margie Wachter, alleged a derivative cause of action for loss of consortium.

The Summary Judgment Motion

After receiving Wachters responses to special and form interrogatories and document demands, Tobin filed a motion for summary judgment on the grounds that Wachter had no evidence that the hangers were defective or that Tobin breached any duty to warn, and that his wifes loss of consortium claim was also barred because it was derivative of Wachters claims. Tobin filed a supplemental motion for summary judgment on the failure to warn issue.

After obtaining a continuance, Wachter and his wife filed opposition to the original and supplemental motions and also filed evidentiary objections.^[1] The evidence to support Wachters claims primarily consisted of an expert witness declaration and the deposition testimony of Panelized employees. After sustaining the evidentiary objections, the trial court granted the motion. The court found that Wachters factually devoid discovery responses satisfied Tobins initial burden on the motion and Wachter failed to present competent evidence sufficient to create triable issues of material fact as to whether the hangers were defective or lacked adequate warnings. Following entry of judgment in favor of Tobin, this appeal was filed.

DISCUSSION

I. Standard of Review

We review de novo a trial courts ruling on a motion for summary judgment, considering all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612; Code Civ. Proc., 437c, subd. (c).) We review the trial courts ruling, not its rationale, and are not bound by the trial courts stated reasons for granting summary judgment. (Kids Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) [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. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

A defendant seeking summary judgment meets this burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., 437c, subd. (p)(2).) The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 854.) The defendant may do this through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing. (Id. at p. 855.) If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs factually devoid discovery responses. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107, fn. omitted.) Circumstantial evidence supporting a defendants summary judgment motion can consist of factually devoid discovery responses from which an absence of evidence can be inferred, but the burden should not shift without stringent review of the direct, circumstantial and inferential evidence. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Once the defendant makes the required showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Barton v. Elexsys Internat., Inc. (1998) 62 Cal.App.4th 1182, 1187.) A plaintiff cannot rely upon the mere allegations or denials of its pleadings, but shall set forth the specific facts based on admissible evidence showing a triable issue exists. (Code Civ. Proc.,  437c, subd. (p)(2); Borders Online v. State Bd. of Equalization (2005) 129 Cal.App.4th 1179, 1188.)

II. Summary Judgment Was Properly Granted

A. Warranty and Strict Liability Claims

Wachter lumps together his discussion of his two claims for breach of warranty and strict liability, asserting that the elements to be proved for each claim are the same. To recover for strict products liability, a plaintiff must establish either a design defect, a manufacturing defect or a failure to warn. (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 11101112.) Similarly, the implied warranty of merchantability is breached when the goods do not conform to the promises or affirmations contained on the container or label or are not fit for the ordinary purposes for which the goods are used. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 189.) The implied warranty of fitness is breached if the goods are not reasonably fit for the intended purpose and result in injury. (Ibid.) Wachters theory behind these claims is that Tobin defectively designed its steel hangers and failed to provide proper warnings regarding installation.

As we discuss, we find that Tobin met its initial burden of showing that Wachter had no evidence to support his claims and that once the burden shifted to Wachter, he failed to present sufficient evidence to create a triable issue of material fact.

1. Tobin Met Its Initial Burden of Production

Tobins motion for summary judgment was brought on the ground that Wachters factually devoid discovery responses showed that he had no evidence to support his claims for breach of warranty or products liability. Wachter argues that the use of these discovery responses did not satisfy Tobins burden as the moving party. Tobin argues that Wachter is precluded from raising this issue on appeal because he failed to raise it below. Although the substantive opposition to the summary judgment motion summarily raised the issue without providing any arguments or authority, Wachters counsel addressed the issue in the request for a continuance and also at the hearing on the summary judgment motion. Accordingly, we will address it here.

Tobin served Wachter with 45 special interrogatories. Among other things, the interrogatories asked him to state each fact upon which he based his claim that Tobin caused or contributed to his injuries (No. 12). Wachters only response was: The defective fasteners and hangers were manufactured by Tobin Steel Company, Inc. When asked to identify all individuals with knowledge of the facts to support this claim (No. 13) and all documents reflecting this claim (No. 14), he identified only the Cal/OSHA investigator and the Cal/OSHA report. When asked to state all facts supporting his contention that the hangers sold by Tobin to his employer lacked adequate strength and were therefore unsafe and unfit for use (No. 31), he responded: The hangers and fasteners failed under foreseeable use. Investigation and discovery continue. He identified only the Cal/OSHA investigator as a person with knowledge of the facts supporting this contention and did not identify any documents reflecting this contention. In response to interrogatories asking him to state all facts supporting his contention that Tobin failed to provide adequate and sufficient instructions on the proper method for installing the hangers (No. 34) or adequate and sufficient warnings regarding the load bearing strength of the hangers (No. 37), he responded that investigation and discovery continue. He also provided this same response to interrogatories asking for the names of individuals with knowledge of the facts supporting these contentions and he failed to identify any documents reflecting these contentions. When asked to state all instructions that should have been provided on the proper installation of the hangers (No. 43), he responded: Plaintiff did not install the fastener and hanger.

Tobin also served Wachter with requests for production of documents. In response to requests seeking all documents supporting his contentions that the hangers were not of merchantable quality (No. 9) and that they were unsafe for use (No. 10), he merely responded that there were [n]o responsive documents at this time.

Wachter asserts on appeal that the limited facts in his responses were the result of the unavailability of the key evidence, the hangers and other components of the collapsed section of the roof, because they were in the possession of Cal/OSHA. He therefore argues that there was no basis from which to infer that he could not reasonably obtain evidence needed to support his claims. But the discovery responses did not state that he had not yet inspected the hangers or that he needed to inspect them to fully respond to the discovery.

Parties have a duty to respond to discovery requests as completely and straightforwardly as possible given the information available to them. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580, fn. 3.) When defendants conduct comprehensive discovery, plaintiffs cannot play hide the ball. (Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at p. 106.) We agree with Tobin that if a plaintiff opposing a summary judgment motion could successfully argue that his factually devoid discovery responses did not shift the burden to him because at the time he made them he was not in possession of facts to prove his case, a defendant would have a difficult, if not impossible, task of ever using a plaintiffs discovery responses to support a motion for summary judgment. Such gamesmanship would also undermine the purposes of our modern discovery rules. (See Andrews v. Foster Wheeler LLC, supra, at p. 107, fn. 3, citing Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal.App.4th 1279, 1288 [It is undeniable the Discovery Act was intended to bring a new form of order to civil discovery and to eliminate some of the more undesirable elements of the adversarial system, including the sporting theory of litigationnamely surprise at trial]; and McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210 [One of the principal purposes of the Discovery Act . . . is to enable a party to obtain evidence in the control of his adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits].)

We conclude that Tobins discovery was sufficiently comprehensive, and [Wachters] responses so devoid of facts, as to lead to the inference that plaintiffs could not prove [their claims] upon a stringent review of the direct, circumstantial and inferential evidence contained in the responses. (Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at p. 107.) Tobin therefore met its initial burden of presenting evidence sufficient to make a prima facie showing that triable issues of material fact did not exist regarding Wachters claims. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) The burden of production then shifted to Wachter to establish triable issues of material fact.

2. Defective Design

Wachter contends that he met his burden by producing competent evidence creating a triable issue of material fact as to whether Tobins hangers were defectively designed. We disagree.

Wachter primarily relied on the declaration of his expert witness, Bruce Agle, a professional engineer with extensive experience in metallurgical and materials engineering failure analysis. Agle stated that he performed a visual examination of the subject hangers with digital and dimensional documentation. He further stated: It is my opinion based on an inspection of the failed hangers and sub-purlins that the failure originated at a hanger that had not been nailed to the header. Adjacent hangers were nailed in one corner to the header allowing rotation and reduction in load carrying capacity. Having the single nails placed in the center of the hangers would have provided a substantial increase in load bearing capacity based on tests performed by Twinning Laboratories for Tobin Steel. The single nail in the center of the hangers would have likely prevented hanger rotation and [the] subject accident. Agle also offered the following numerous opinions based on his review of unidentified depositions and documents: Tobin literature does not adequately describe the hanger maximum gap widths or locations for single fasteners in the header as found in other vendor literature; Tobin did not perform routine quality control tests to evaluate the hangers strength; one of Tobins competitors was aware that many hanger end users would only use one nail in the header and Tobin should have been aware of such installation practices and modified its installation instructions to advise the customer that if one nail is used it must be in the center of the hanger; compliance with such an instruction would likely have prevented the subject accident; the new hanger design with the increased top flange length would have increased the load carrying capacity of the hangers in the as rotated position and potentially prevented the subject accident; and Tobin gives a higher maximum working strength and lower safety factor for the TF series hangers relative to industry standards.

The trial court found that Agles declaration was insufficient to raise a triable issue of material fact because, among other things, it was conclusory and failed to show the facts upon which he relied in forming his opinions. We agree. Though the declaration states that Agle performed a visual inspection of the hangers, it does not state that he performed any tests on the steel hangers or the wood components. The declaration also does not state what tests were performed by Twining Laboratories upon which he relied or show that these tests were performed on the specific hangers at issue in this case. There is no explanation of how Agle reached the conclusion that the hangers rotated or what he means by rotation. Nor is there any explanation of how the use of a single nail in the center of the hanger would have provided an increase in load bearing capacity over the two nails recommended by Tobin. While the declaration states that Agles opinions are based on a review of depositions and documents, he does not identify whose depositions were reviewed or what documents were considered or how either of these led him to his conclusions. The declaration does not identify what Tobin literature Agle consulted or why the literature does not adequately describe the hanger maximum gap widths or locations, or even explain maximum gap widths or their relevance to this case. The declaration also fails to state any facts to support Agles conclusion that Tobin should have been aware of what was known by its competitor. Interestingly, the only opinion expressed by Agle that has any factual support is his opinion that the failure of the roof originated at a hanger that had not been nailed.

We agree with Tobin that the declaration is replete with assertions which have no basis in fact. An expert declaration that does not set forth the factual basis for the opinions expressed does not create a triable issue of material fact. Plaintiffs cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation, or reasoning. (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1106.) Moreover, an experts opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) Accordingly, the trial court was correct in finding that Agles declaration was insufficient to create a triable issue of material fact as to whether the hangers were defectively designed.

Other than Agles declaration, none of Wachters other evidencewhich consisted largely of the deposition testimony of Panelized employeesaddressed the issue of a design defect. To the contrary, most of this testimony attributed the cause of the accident to a lack of adequate nailing. Indeed, the area manager for Panelized felt that the roof would not have collapsed if the nail had not been missed. Thus, Wachter did not meet his burden of creating a triable issue of material fact as to whether the hangers were defectively designed.

3. Failure to Warn

Wachter cites to a string of cases for the proposition that even if a product is flawlessly designed and manufactured, it may still be defective if a reasonably foreseeable use involves a substantial danger not readily recognizable by the ordinary consumer and the manufacturer fails to provide an adequate warning. He contends that Tobins motion failed to show that it had no liability for failure to provide adequate warnings on the safe installation of its hangers. This contention is without merit.

It is undisputed that Tobin does not provide installation instructions on the box in which the hangers are supplied. But Tobin presented the declaration of Steve Tobin, its vice president of sales and operations, who stated that during the 10 years Tobin has been supplying TF-34 and TF-46 hangers to Panelized, Tobin has repeatedly provided its instructions and the ICBO report to Panelized. Both of these documents state that two nails are to be used in the TF or horizontal portion of the hanger during installation. Wachter also relied on Steve Tobins deposition testimony, which stated that Panelized requested Tobin to mail the ICBO information to it all the time and that Tobin did so.

Wachter nevertheless argues that Tobin offered no evidence establishing that any of the individual workers involved in the assembly of the roof in question had received or was aware of Tobins instructions. He cites no authority to support the novel proposition that once a manufacturer supplies installation instructions to its customer, it must also ensure that each of the customers individual employees receives the instructions. Such a requirement would be wholly impractical. In Cook v. Branick Mfg., Inc. (11th Cir. 1984) 736 F.2d 1442, 1446, the court held that a franchisors duty to warn of a dangerous condition in the workplace is discharged by informing the employer of the dangerous condition and warning to each of the employers individual employees who may be threatened by the dangerous condition then becomes the responsibility of the employer. (Ibid.) To require the defendant to attempt to learn the identity of each and every employee [of the employer], who was and would be involved on this job, would not only be wholly unreasonable, but it would in all probability prove both futile and impossible since the [employers] supervisory officials . . . might shift at any time, or be compelled to shift, the employees assigned to this work. (Ibid.) Similarly, in Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444, 449, the court held that a manufacturer of lantern fuel sold in bulk to a distributor who subsequently packaged, labeled and marketed the product had no duty to warn the ultimate consumer when it provided adequate warnings to the distributor. The court stated that to impose a duty to warn the ultimate consumer would impose an onerous burden on the bulk sales manufacturer to inspect the subsequent labeling of the packaged product. (Ibid.)

Because Tobins evidence shows that it provided instructions to Panelized on the proper procedure for installing the hangers, the burden shifted to Wachter to create a triable issue of material fact as to whether Tobin was liable for failure to provide an adequate warning. Once again, he failed to meet this burden.

Wachter contends that the use of only one nail to install a hanger was reasonably foreseeable to Tobin, which should have provided a warning that if only one nail was used it should be placed in the center of the hanger. He cites to the deposition testimony of several Panelized employees for the proposition that it was the standard practice for Panelized to use only one nail per hanger. But only one Panelized employee, Sean Koryta, testified that it was Panelizeds standard practice to use at least one nail in every hanger, and he never testified that he only used one nail per hanger. He stated that he put one nail in every corner through the back edge through the hanger, and that he would have expected there to be two nails on the back edge of the hanger. None of the other Panelized employees testified that they used only one nail per hanger. Nor was there any testimony that Tobin was ever made aware of how Panelized employees may have been installing hangers. Wachter relies on the opinion of his expert witness that because one of Tobins competitors was aware that many installers used only one nail, Tobin also should have been aware of such installation practices. But we have already concluded that this opinion is meaningless in the absence of any factual basis to support it.

We therefore find that Wachter failed to present sufficient evidence to create a triable issue of material fact as to whether Tobin was liable for failure to warn.

B. Negligence Claim

As Wachter notes, one who designs a product has a duty to exercise reasonable care in the design and testing of the product. (See, e.g., Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 10771078.) He claims he created triable issues of material fact as to whether Tobin is liable for negligence by showing that the hangers were defectively designed and tested. We disagree.

Relying on the declaration of his expert witness and the deposition testimony of Steve Tobin, Wachter claims he showed the hangers were defectively designed because the top flange was too short to provide adequate load bearing and that [a] reasonable manufacturer would have provided a longer flange to make it less likely that the hanger would be missed during the nailing process. But the expert declaration is of no assistance to him. The declaration merely concludes, based on unidentified depositions and documents, that the new hanger design with the increased top flange length would have increased the load carrying capacity of the hangers in the as rotated position and potentially prevented the subject accident. As previously noted, because there is no basis, explanation or reasoning for this ultimate conclusion, it has no evidentiary value. Nor is Steve Tobins deposition testimony of any assistance to Wachter. The portion of his deposition testimony addressing the top flange indicates that at some point in time Tobin lengthened the top flange of the hangers to five inches, which is not even noticeable to most people, didnt do anything to the hanger, and did not change the load bearing capacity. None of this evidence creates a triable issue of material fact as to whether the hangers were defectively designed.

Likewise, Wachter failed to provide any evidence creating a triable issue of material fact as to whether the hangers were negligently tested. The opening brief on appeal merely asserts that Tobin never tested its hangers in real-world conditions where nailing crews would use one nail, and would miss nailing individual hangers since they were hidden under the plywood sheeting. But there is no citation to the record to support this assertion. We can only assume that once again Wachter is relying on the declaration of his expert witness. The declaration merely concludes that based on unidentified depositions and documents routine quality control tests were not performed to evaluate[] the hangers strength. This unsupported opinion is meaningless.

The trial court properly granted Tobins motion for summary judgment.^[2]

DISPOSITION

The summary judgment is affirmed. Tobin is entitled to its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

DOI TODD

We concur:

____________________________, P. J.

BOREN

____________________________, J.

ASHMANN-GERST

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^[1] The objections were directed to certain of Tobins references to an investigative report by the California Division of Occupational Safety and Health (Cal/OSHA), which Wachter himself had relied on in his discovery responses.

^[2] The opening brief acknowledges that it does not discuss Margie Wachters cause of action for loss of consortium, since it is derivative of her husbands causes of action. (Jablonski v. Royal Globe Ins. Co. (1988) 204 Cal.App.3d 379, 388.) Accordingly, we need not address this claim.