Ochoa v. T.M Duche Nut Co. CA5 ( 2020 )

Filed 11/23/20 Ochoa v. T.M Duche Nut Co. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
SYLVIA OCHOA, Individually and as Personal
Representative, etc., et al., F074947
Plaintiffs and Appellants, (Super. Ct. No. VCU255716)
v.
OPINION
T.M. DUCHE NUT CO., INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Tulare County. Melinda
Myrle Reed, Judge.
The McMillan Law Firm, Scott A. McMillan and Lauren Hanley-Brady for
Plaintiffs and Appellants.
Lewis Brisbois Bisgaard & Smith, Julian J. Pardini, Jonathan D. Martin, Jeffry A.
Miller, Brittany B. Sutton, and W. Eric Blumhardt for Defendant and Respondent.
-ooOoo-
Plaintiffs Sylvia Ochoa and Angie Ruiz appeal from the Tulare County Superior
Court’s October 19, 2016 judgment entered on an order granting summary judgment in
favor of defendant T.M. Duche Nut Co., Inc. (TMD). For the reasons set forth below, we
affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY1
Decedent Fernando Santiesteban, Ochoa’s husband, was employed by Setton
Pistachio of Terra Bella, Inc. (Setton Pistachio) as a maintenance worker at its processing
facility in Terra Bella, California. On February 11, 2011, Santiesteban was charged with
servicing a 120-foot wet auger, which transported hull waste to a waste pond for
composting and disposal. However, while he was in the middle of extricating the auger’s
helical screw, a coworker activated the machine. Santiesteban was fatally wounded as a
result. (See Setton I, supra, F073844; Setton II, supra, F073978.)
On July 8, 2015, Ochoa and Ruiz, the guardian ad litem of Santiesteban and
Ochoa’s children, brought a wrongful death action against TMD, inter alios.2 In the
operative complaint, plaintiffs alleged Setton Pistachio purchased the Terra Bella facility
in 1995 “from . . . Dole [Food] through Dole Nut Company, successor by change of name
1 The instant case is related to Ochoa v. Setton Pistachio of Terra Bella, Inc.
(Apr. 16, 2019, F073844) (Setton I) and Ochoa v. Setton Pistachio of Terra Bella, Inc.
(Apr. 16, 2019, F073978) (Setton II). On our own motion, we take judicial notice of
these unpublished opinions and draw background facts from them. (See The Utility
Reform Network v. Public Utilities Commission (2014) 223 Cal.App.4th 945, 951, fn. 3
[“Citation of our prior unpublished opinion does not violate California Rules of Court,
rule 8.1115(a) because ‘[w]e . . . cite the decision to explain the factual background of the
case and not as legal authority.’ ”].)
2 Plaintiffs also sued Setton Pistachio and Dole Food Company (Dole Food). The
superior court granted summary judgment in favor of these defendants and we affirmed
the rulings. (See Setton I, supra, F073844 [Dole Food]; Setton II, supra, F073978
[Setton Pistachio].)
2.
to . . . T.M. Duch[e] Nut. Co., Inc.”3 and stated on information and belief that TMD “was
both a predecessor and successor in interest to Dole Nut Company.” Plaintiffs claimed
TMD was strictly liable for the Terra Bella wet auger’s manufacturing, design, and/or
warning defects. They further claimed TMD “created and/or made a part of the [Terra
Bella] [f]acility” “the death-causing condition of the [auger]”; negligently owned,
possessed, and/or controlled the Terra Bella facility and allowed the condition therein;
“actively concealed or failed to disclose . . . the condition to . . . successors in interest in
the land,” e.g., Setton Pistachio; and “knew or had reason to know of the condition, . . .
realized or should have realized the risk involved, and had reason to believe that
[successors in interest] would not discover the condition or realize the risk.”
In an answer dated November 3, 2015, TMD “generally denie[d] each and every
allegation.” It also raised 27 affirmative defenses, including the following:
“TWENTY-THIRD AFFIRMATIVE DEFENSE TO ALL
CAUSES OF ACTION [¶] [TMD] is informed and believes, and thereon
alleges, that the machinery was not in a defective condition at any time
when it was in [TMD]’s possession, custody or control.”
On May 17, 2016, plaintiffs served a set of requests for admission (RFA’s), form
and special interrogatories, and requests for production of documents. “[RFA] N[o]. 1”
(boldface & underscoring omitted) read:
“Admit that ‘T. M. Duch[e]’ has been . . . ‘A NAME IN NUTS SINCE
1857.’ ”
“[RFA] N[o]. 9” (boldface & underscoring omitted) read:
“Admit that you acquired the ‘good will’ of the business known as ‘T.M.
Duch[e]’, which is defined as the expectation of continued public patronage
. . .”
“[RFA] N[o]. 49” (boldface & underscoring omitted) read:
3 Setton Properties, Inc., purchased the Terra Bella facility from Dole Food in 1995;
Setton Pistachio was the guarantor. (See Setton II, supra, F073978.)
3.
“Admit that on July 13, 1995, Dole Dried Fruit and Nut Co., Inc., . . .
owned the rights to the name ‘T.M. Duch[e].’ ”
Plaintiffs also served a notice of deposition of Stuart Rosen, TMD’s chairman and a
shareholder. The deposition was scheduled for July 27, 2016.
On June 1, 2016, TMD moved for summary judgment. It contended “there [were]
no triable issues of fact regarding the following: (1) [TMD] has never had and does not
currently have any corporate relationship with any defendant in this action, (2) [TMD]
did not manufacture, design, or sell the subject [w]et [a]uger, and (3) [TMD] has never
owned, possessed, or had control over the [Terra Bella] [f]acility or the subject [w]et
[a]uger at any time.” In support of its motion, TMD submitted Rosen’s declaration, inter
alia.4 This declaration, which was executed on May 31, 2016, read:
“1. I am a shareholder and the chairman of [TMD]. The facts set
forth herein are of my own personal knowledge, and if sworn I could and
would competently testify thereto.
“2. [TMD] was founded and incorporated in California on June 1,
[ 5]
2000. . . . Before we incorporated in California we checked the records
of the California Secretary of State, and there was no active entity with the
name T.M. Duche Nut Co., Inc. For that reason, we were permitted to
incorporate this new entity with that name in California. The Secretary of
State records reflected that there has been a prior entity with the name T.M.
Duche Nut Co., Inc. (‘Former Duche’), but it was no longer in existence
and was identified in the Secretary of State records as follows: Date filed:
10/27/1943, Status: Merged Out. [TMD] has no affiliation whatsoever
with the Former Duche. [TMD] is therefore a completely separate and
unrelated entity from the Former Duche.
“3. [TMD]’s principal place of business is 1502 Railroad Avenue
in Orland, California. [TMD] is in the business of processing walnuts and
4 TMD also asked the superior court to judicially notice the declarations of Stewart
Fellner and Richard Jacobs. Fellner was Setton Pistachio’s chief financial officer.
Jacobs was the senior counsel of Dole Fresh Vegetables, Inc., a subsidiary of Dole Food.
5 A “true and correct copy” of TMD’s articles of incorporation filed on June 1,
2000, was attached to the declaration.
4.
almonds and owns a processing plant and several receiving stations
throughout California.
“4. On August 7, 2000, [TMD] purchased from Dole Dried Fruit
and Nut Company . . . the processing facility located at 1502 Railroad
Avenue in Orland in Glenn County and three receiving stations in Butte,
Stanislaus and Tulare [C]ounties. . . .[6] The . . . Terra Bella [f]acility . . .
where the accident that gave rise to this action occurred, was not included
in this transaction. . . . Th[is] transaction was only for real property and
there was no continuing relationship between Dole [Dried Fruit and Nut
Company] and [TMD] after escrow closed. In addition, at no time during
or after its negotiations with respect to the August 2000 transaction did
Dole [Dried Fruit and Nut Company] claim a continuing interest in or right
to use the name T.M. Duche Nut Co., Inc. after escrow closed.
“5. [TMD] is not a predecessor or successor to any named
defendant in this action.
“6. [TMD] has never had and does not currently have an ongoing
corporate relationship with any named defendant in this action.
“7. [TMD] has never owned, possessed, or had control over the
[Terra Bella] [f]acility.
“8. [TMD] has never owned, possessed, or had control over the
wet auger that purportedly contributed to Mr. Santiesteban’s death . . . .
“9. [TMD] has never employed any person, including Mr.
Santiesteban, at the [Terra Bella] [f]acility at any time.
“10. [TMD] did not design, manufacture, or distribute the subject
[w]et [a]uger.
“11. [TMD] is unaware of the identity of the manufacturer and/or
designer of the subject [w]et [a]uger.
“12. [TMD] is not in the business of manufacturing wet augers of
the kind that purportedly killed Mr. Santiesteban.
6 A “true and correct copy” of a redacted “PURCHASE AND SALE
AGREEMENT AND JOINT ESCROW INSTRUCTIONS” dated August 7, 2000,
was attached to the declaration.
5.
“13. [TMD] is not in the business of distributing wet augers of the
kind that purportedly killed Mr. Santiesteban.
“14. [TMD] is not in the business of retailing wet augers of the
kind that purportedly killed Mr. Santiesteban.
“15. Because [TMD] has never owned or had control of the [Terra
Bella] [f]acility, [TMD] has never had the ability to warn persons entering
[said] [f]acility about the subject [w]et [a]uger.
“16. [TMD] has never had access to the [Terra Bella] [f]acility for
purposes of inspection, maintenance, and/or repair of any equipment at
[said] [f]acility.
“I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct . . . .”7
A hearing on the motion was scheduled for September 26, 2016.
On June 20, 2016, TMD served its responses to plaintiffs’ written discovery
requests. Each response to an RFA contained the text and identifying number of the
particular request as well as TMD’s answer and/or objections to the request. The answer
to RFA No. 1 read:
“Responding Party objects that this request is vague and ambiguous
as to the phrase ‘A NAME IN NUTS SINCE 1857.’ Responding Party
objects [to] this request as it does not properly define the term ‘T.M.
Duche.’ Subject to and without waiving the foregoing objections,
Responding Party responds as follows: Responding Party was founded and
incorporated in 2000 and is without information or knowledge sufficient to
respond to any details relating to any time period prior to the year 2000.”
The answer to RFA No. 9 read:
“Responding Party objects that the term[s] ‘acquired’ and ‘good
will’ [are] vague, ambiguous, and undefined. Responding Party further
objects that this request is compound, and vague and ambiguous as to time
and scope. Responding Party was allowed by the California Secretary of
State to incorporate in California in 2000 using the name T.M. Duche Nut
Co., Inc. and therefore did not ‘acquire’ anything by way of incorporation
7 Hereafter, to avoid confusion, we use the designation “former Duche” to refer to
the business that incorporated in 1943.
6.
f[ro]m any person or entity. Responding Party further objects that this
request calls for a legal conclusion. Subject to and without waiving the
foregoing objections, Responding Party responds as follows: Responding
Party cannot respond to this request as phrased and on that basis denies this
request in its entirety.”
The answer to RFA No. 49 read:
“Subject to and without waiving the foregoing objections,
Responding Party responds as follows: Responding Party is without
sufficient personal knowledge to respond to this request as Responding
Party was not founded or incorporated until the year 2000. Responding
Party has been made aware of certain evidence that may be probative to this
request during discovery in this action. This information is equally
available to plaintiffs.”
While TMD answered and/or objected to RFA Nos. 76 through 113, the identifying
numbers were off by one. For instance, RFA No. 77 and the corresponding answer were
labeled “76,” RFA No. 78 and the corresponding answer were labeled “77,” and so on. 8
(Boldface & underscoring omitted.)
On July 27, 2016, plaintiffs filed an “EX PARTE APPLICATION TO
CONTINUE THE SEPTEMBER 26, 2016 HEARING ON [TMD’s] MOTION FOR
SUMMARY JUDGMENT . . . .” They requested a continuance pursuant to Code of
Civil Procedure section 437c, subdivision (h)9 “to allow [them] to conduct discovery,
including the deposition of . . . Rosen . . . and compel responses to written discovery
. . . .” Plaintiffs claimed TMD “ha[d] not made Mr. Rosen available for deposition” and
“failed to respond to many of [their] discovery requests.” Following a hearing, the
superior court denied the application “due to no good cause having been shown.”10
8 TMD correctly identified RFA No. 76, but the corresponding answer was labeled
“75.” (Boldface & underscoring omitted.)
9 Subsequent statutory citations refer to the Code of Civil Procedure.
10 The court reasoned:
“It appears as though [TMD] is more than willing to present the
deposition of Mr. [Rosen]. It was canceled due to weather. That’s clear
from the papers. And parties are doing their best to reschedule. [¶]
7.
On August 18, 2016, plaintiffs moved to compel further responses to their
discovery requests on the grounds TMD’s answers and/or objections were “evasive,”
“incomplete,” “without merit,” and/or “too general.”
Rosen was deposed on August 25, 2016.
On August 18, 2016, plaintiffs filed a “MOTION FOR AN ORDER DEEMING
ADMITTED TRUTH OF FACTS,” namely, the matters specified in RFA Nos. 79
through 113, pursuant to section 2033.280, subdivision (b).
On September 12, 2016, plaintiffs filed “OBJECTIONS TO DECLARATION
OF STUART ROSEN,” citing relevance, hearsay, and lack of foundation, inter alia.
In their opposition to the summary judgment motion dated September 12, 2016,
plaintiffs asserted TMD’s answer to their complaint contained a judicial admission,
namely, TMD possessed or controlled the Terra Bella wet auger. Additionally, they
argued TMD was liable “as a successor entity” “for defective equipment sold by former
. . . Duche.” (Boldface omitted.)11 Plaintiffs specified former Duche “designed,”
[Plaintiffs’ counsel] indicated [he’s] open for the August 31, 2016 date. I
direct parties to move forward with the deposition on that date or as
otherwise agreed.”
11 Elsewhere in the opposition, plaintiffs described TMD as “a successor entity of . . .
former . . . Duche . . . and Dole Dried Fruit & Nut Co., Inc., which is dissolved.” (Italics
added.) Plaintiffs alleged the following:
“Former . . . Duche was incorporated on October 27, 1943. . . . By
1987, it was a wholly owned subsidiary of S & J Ranch, Inc. . . . S & J
Ranch, Inc. was entirely owned by the Apache Corporation. . . . [¶] . . . [¶]
“On September 29, 1987, . . . the predecessor to Dole Food
Company . . . entered into a purchase agreement with Apache
Corporation. . . . As part of the transaction, Apache sold the stock of S & J
Ranch, and thereby that of [former] Duch[e] . . . to Dole Food
Company. . . . [¶] . . . [¶]
“In 1988, former . . . Duche changed its name to Dole Nut
Company. . . . In 1989, [a separate] subsidiary of Dole Food Company . . .
changed its name to Dole Dried Fruit and Nut Company . . . . [¶] . . . [¶]
8.
“manufactured,” and “sold screw conveyors by way of its . . . sales of [nut processing]
plants . . . .” (Boldface omitted.) To support this proposition, they submitted Dole
Food’s 1994, 1995, and 2000 annual reports filed with the United States Securities and
Exchange Commission. The 1994 report stated Dole Food “and its consolidated
subsidiaries” “engaged in three principal businesses: food production and distribution,
real estate development and resorts.” (Underscoring omitted.) The 1995 report indicated
the company was no longer involved in real estate development and resorts as of
December 28, 1995. Each report contained a section titled “Research and Development,”
which read in part:
“Specialized machinery is also developed for various phases of agricultural
production and packaging which reduces labor, improves productivity and
efficiency and increases product quality. Agricultural research is conducted
at field facilities primarily in California, Hawaii, Latin America and Asia.”
(Underscoring omitted.)
Plaintiffs also submitted (1) an August 15, 1995 “DEED OF ASSIGNMENT OF
UNITED STATES PATENTS,” under which Dole Dried Fruit and Nut Company
transferred to Setton Properties, Inc. its “entire right, title and interest in and to” four
particular patents, two for “Apparatus[es] for Splitting Closed Shell Pistachio Nuts” and
two for “Method[s] for Splitting Closed Shell Pistachio Nuts”; and (2) an August 15,
“Setton Properties, Inc. purchased the Terra Bella facility from Dole
Dried Fruit and Nut [Company] and Dole Nut Company on July 13, 1995
....
“On October 15, 1995, Dole Nut Company and Dole Dried Fruit and
Nut [Company] created a partnership . . . . On December 7, 1995, Dole
Dried Fruit and Nut [Company] dissolved. . . .
“On January 30, 1998, Dole Nut Company changed its name to Dole
Orland, Inc. . . . In or around 1998, [the] partnership filed a fictitious
business name statement reflecting use of the name ‘Dole Nut
Company.’. . . [¶] . . . [¶]
“[The] partnership transferred property in Glenn, Butte, Tulare, and
Stanislaus [C]ount[ies] to [TMD] on or around August 23, 2000. . . .”
9.
1995 “SECURITY AGREEMENT” between Setton Properties, Inc., and Dole Dried
Fruit and Nut Company. The security agreement’s “Tangible Personal Property”
schedule showed a November 1, 1987 “ACQUISITION [¶] DATE” for almost 300
pieces of machinery equipment, including a “18inX120ft SECT TRENCH & COVER”
matching the description of the Terra Bella wet auger.
Next, plaintiffs argued TMD “can be held liable for negligence” (boldface
omitted) because its “predecessor” “concealed or failed to disclose a condition [at the
Terra Bella facility] which it knows or has reason to know about,” “the condition
involves an unreasonable risk that the [predecessor] understands or should realize,” “the
condition/risk was unknown to the vendee (Setton [Pistachio]),” and “the [predecessor]
had reason to believe the vendee . . . will not discover the condition/risk.”
In paragraph 20 of an accompanying declaration, plaintiffs’ counsel claimed (1) he
“issued subpoenas for the production of documents” in June 2016 to various title
companies that “handled some portion of the escrow with [TMD] and its transaction with
the Dole [entities]”; (2) only one title company “was able to provide responsive
documents”; (3) “[t]he other title companies . . . destroyed their records”; and (4) TMD
“is the only source for the documents reflecting the purchase of assets from the Dole
entities.”
Plaintiffs again requested a continuance pursuant to section 437c, subdivision (h)
“because [TMD] withheld substantive responses to [their written discovery] requests and
the responses provided were wholly inadequate under the Civil Discovery Act.” They
maintained “additional discovery . . . may provide facts to justify the opposition of
[TMD]’s [m]otion for [s]ummary [j]udgment,” such as TMD’s admission that it
“inherited the goodwill of [former Duche]” and “escrow documents and unredacted
10.
copies of the transaction” evincing TMD’s “successor interest.” Plaintiffs also asked the
superior court to judicially notice various chain-of-title documents.12
Following hearings on September 12 and 19, 2016, the superior court (1) granted
plaintiffs’ motion to compel further responses as to RFA No. 9 and—“to the extent any
documents are in [TMD]’s possession and control”—RFA No. 49; and (2) denied
plaintiffs’ motion for a “deem[ed] admitted” order but instructed TMD “to provide a
corrected response to [RFA Nos.] 76 through 113 with the appropriate numbers
assigned.”
On September 21, 2016, TMD objected to plaintiffs’ counsel’s declaration.
Among other things, TMD argued paragraph 20 lacked relevance and foundation and was
speculative.
On September 23, 2016, the superior court overruled plaintiffs’ objections to
Rosen’s declaration. The court sustained TMD’s objection to plaintiffs’ counsel’s
declaration as to the portion of paragraph 20 referring to “other title companies . . .
destroy[ing] their records” and TMD being “the only source for the documents reflecting
the purchase of the assets from the Dole entities.”
On September 26, 2016, the superior court granted TMD’s summary judgment
motion. The court also denied plaintiffs’ motion to continue the summary judgment
hearing; granted plaintiffs’ request for judicial notice “as to the existence of the
documents only, and not for the truth of the facts asserted in the documents”; and
determined TMD’s 23d affirmative defense in its answer to the complaint did not
constitute a judicial admission.
12 TMD filed a reply to plaintiffs’ opposition.
11.
DISCUSSION
I. Overview of summary judgment law
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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 843 (Aguilar); see Lee v. Marchetti (1970) 4 Cal.App.3d 97, 99 [“ ‘The salient
philosophy behind this procedural device is to provide a method for the prompt
disposition of actions and proceedings which have no merit and in which there is no
triable material issue of fact . . . .’ ” (italics omitted)].) 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. In
determining if the papers show that there is no triable issue as to any material fact, the
court shall consider all of the evidence set forth in the papers, except the evidence to
which objections have been made and sustained by the court, and all inferences
reasonably deducible from the evidence, except summary judgment shall not be granted
by the court based on inferences reasonably deducible from the evidence if contradicted
by other inferences or evidence that raise a triable issue as to any material fact.” (§ 437c,
subd. (c).)
A defendant seeking summary judgment bears an initial burden to produce
evidence demonstrating either one or more elements of the cause of action cannot be
established or there is a complete defense to that cause of action. (§ 437c, subd. (p)(2);
Aguilar, supra, 25 Cal.4th at pp. 849-850, 854-855.) If the motion is made against a
plaintiff who would bear the burden of proof by a preponderance of evidence at trial, the
defendant “must present evidence that would require a reasonable trier of fact not to find
any underlying material fact more likely than not—otherwise, he would not be entitled to
judgment as a matter of law, but would have to present his evidence to a trier of fact.”
(Aguilar, supra, at p. 851, italics & fn. omitted.) If the defendant makes a prima facie
12.
showing, then the burden of production “shifts to the plaintiff . . . to show that a triable
issue of one or more material facts exists as to the cause of action or a defense thereto.”
(§ 437c, subd. (p)(2).) “The plaintiff . . . shall not rely upon the allegations or denials of
its pleadings to show that a triable issue of material fact exists but, instead, shall set forth
the specific facts showing that a triable issue of material fact exists as to the cause of
action or a defense thereto.” (Ibid.) “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.”
(Aguilar, supra, at p. 850, fn. omitted.)
“[F]rom commencement to conclusion, the party moving for summary judgment
bears the burden of persuasion[13] that there is no triable issue of material fact and that he
is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at p. 850, fn.
omitted.)
II. Overview of pertinent substantive law
a. Products liability
i. Strict products liability
“Where a defective or dangerous product causes personal injury, death or property
damage to a foreseeable user or consumer, one who is engaged in the business of
manufacturing or selling products for use or consumption and who placed the defective
or dangerous product on the market, knowing it was to be used without inspection for
defects, will be held strictly liable in tort.” (Pierson v. Sharp Memorial Hospital, Inc.
(1989) 216 Cal.App.3d 340, 343.) “[S]trict liability does not apply to isolated
transactions, but rather to sellers ‘found to be in the business of manufacturing or
retailing.’ ” (Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178, 187 (Ortiz), quoting Price
13 Whereas a burden of production entails only the presentation of evidence, a
burden of persuasion entails the establishment of a requisite degree of belief by way of
such evidence. (Aguilar, supra, 25 Cal.4th at p. 850.)
13.
v. Shell Oil Co. (1970) 2 Cal.3d 245, 254; see Hyman v. Gordon (1973) 35 Cal.App.3d
769, 773-774 (Hyman) [“[T]he strict liability doctrine applies to a ‘seller . . . engaged in
the business of selling such a product’ rather than to the occasional seller who is not
engaged in that activity as part of his business . . . .”].)
ii. Negligence-based products liability
“ ‘For the cause of action for strict products liability there is no necessity to show
duty or breach of duty but only that the product was defective and that the injury to the
plaintiff was caused by that defective condition.’ [Citation.] In contrast, to prevail on a
negligence claim, [the plaintiff] must show that [the defendant] owed her a legal duty,
breached the duty, and that the breach was a proximate or legal cause of her injury.
[Citation.] In the context of a products liability lawsuit, ‘[u]nder a negligence theory, a
plaintiff must also prove “an additional element, namely, that the defect in the product
was due to negligence of the defendant.” ’ [Citation.]” (Gonzalez v. Autoliv ASP, Inc.
(2007) 154 Cal.App.4th 780, 793.)
b. Premises liability
“The elements of a negligence claim and a premises liability claim are the same: a
legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner
v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “[T]he duty to take affirmative action
for the protection of individuals coming upon the land is grounded in the possession of
the premises and the attendant right to control and manage the premises.” (Sprecher v.
Adamson Companies (1981) 30 Cal.3d 358, 368.)
A predecessor landowner’s liability terminates “upon transfer of control, i.e., the
doctrine of caveat emptor is generally followed, except under specified circumstances.
[Citation.] One of the exceptions ‘ “is that the vendor is under a duty to disclose to the
vendee any hidden defects which he knows or should know may present an unreasonable
risk of harm to persons on the premises, and which he may anticipate that the vendee will
14.
not discover.” ’ [Citation.]” (Newhall Land & Farming Co. v. Superior Court (1993) 19
Cal.App.4th 334, 349.)
c. Successor liability
“The general rule of successor nonliability provides that where a corporation
purchases, or otherwise acquires by transfer, the assets of another corporation, the
acquiring corporation does not assume the selling corporation’s debts and liabilities.”
(Fisher v. Allis-Chalmers Corp. Product Liability Trust (2002) 95 Cal.App.4th 1182,
1188 (Fisher), citing Ray v. Alad Corp. (1977) 19 Cal.3d 22, 28 (Ray).) “This general
rule does not apply if ‘(1) there is an express or implied agreement of assumption, (2) the
transaction amounts to a consolidation or merger of the two corporations, (3) the
purchasing corporation is a mere continuation of the seller, or (4) the transfer of assets to
the purchaser is for the fraudulent purpose of escaping liability for the seller’s debts.’ ”
(Fisher, supra, at p. 1188, quoting Ray, supra, at p. 28.)
“A fifth exception to the general rule of successor nonliability was created by the
Supreme Court in Ray . . . .” (Fisher, supra, 95 Cal.App.4th at p. 1188.) In Ray, the high
court concluded “that a party which acquires a manufacturing business and continues the
output of its line of products . . . assumes strict tort liability for defects in units of the
same product line previously manufactured and distributed by the entity from which the
business was acquired.” (Ray, supra, 19 Cal.3d at p. 34; see ibid. [“By taking over and
continuing the established business of producing and distributing [products], [the
purchasing entity] bec[o]me[s] ‘an integral part of the overall producing and marketing
enterprise that should bear the cost of injuries resulting from defective products.’ ”].)
“Justification for imposing strict liability upon a successor to a manufacturer . . . rests
upon (1) the virtual destruction of the plaintiff’s remedies against the original
manufacturer caused by the successor’s acquisition of the business, (2) the successor’s
ability to assume the original manufacturer’s risk-spreading role, and (3) the fairness of
requiring the successor to assume a responsibility for defective products that was a
15.
burden necessarily attached to the original manufacturer’s good will being enjoyed by the
successor in the continued operation of the business.” (Id. at p. 31, italics omitted.) This
exception, known as the “ ‘product line successor’ rule” (Fisher, supra, at p. 1188),
applies only to strict products liability claims. (Franklin v. USX Corp. (2001) 87
Cal.App.4th 615, 628-629; Monarch Bay II v. Professional Service Industries, Inc.
(1999) 75 Cal.App.4th 1213, 1217-1219; Maloney v. American Pharmaceutical Co.
(1988) 207 Cal.App.3d 282, 289-290.)
III. Analysis
a. TMD’s answer to plaintiffs’ complaint
“The pleadings are the formal allegations by the parties of their respective claims
and defenses, for the judgment of the court.” (§ 420.) “The pleadings allowed in civil
actions are complaints, demurrers, answers, and cross-complaints.” (§ 422.10.) “A civil
action is commenced by filing a complaint with the court.” (§ 411.10.) “Every material
allegation of the complaint . . . , not controverted by the answer, shall, for the purposes of
the action, be taken as true.” (§ 431.20, subd. (a); see § 431.10, subd. (a) [“A material
allegation in a pleading is one essential to the claim or defense and which could not be
stricken from the pleading without leaving it insufficient as to that claim or defense.”].)
“An answer may contain a ‘general . . . denial of the material allegations of the complaint
controverted by the defendant.’ [Citation.] The effect of a general denial is to ‘put in
issue the material allegations of the complaint.’ [Citation.]” (Advantec Group, Inc. v.
Edwin’s Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 627, fn. omitted.)
On appeal, plaintiffs contend (1) in its answer, TMD conceded the Terra Bella wet
auger was in its “possession, custody or control”; and (2) the superior court should have
treated this response as a judicial admission. We disagree. First, at the outset of its
answer, TMD “generally denie[d] each and every allegation” of plaintiffs’ complaint.
This “was sufficient to place [these allegations] in issue.” (Park City Services, Inc. v.
16.
Ford Motor Co., Inc. (2006) 144 Cal.App.4th 295, 309.)14 Second, the purported
admission was part of the answer’s 23d affirmative defense. “ ‘ “[I]t is well settled in
California that a defendant may plead as many inconsistent defenses in an answer as she
may desire and that such defenses may not be considered as admissions against interest in
the action in which the answer was filed. [Citations.]” [Citations.]’ [Citations.]” (Park
City Services, Inc. v. Ford Motor Co., Inc., supra, at p. 309.) “[T]he fact that defendant
in the instant case denied certain material allegations of the complaint in his answer and
subsequently in an affirmative defense alleged the same material allegations of the
complaint as true, did not constitute an admission of the truth of the allegations in the
complaint. He was merely pleading inconsistent defenses.” (Edger v. Foster (1941) 48
Cal.App.2d 580, 583; see Southern Glass Co. v. Beverly Dairies, Ltd. (1935) 7
Cal.App.2d 451, 454 [“[W]here one separate answer denies all of the allegations of
plaintiff’s complaint, plaintiff is not excused from making proof of the material facts
because of admissions of some or all of them found in other and separate answers of the
defendant.”].)
b. Rosen’s declaration in support of TMD’s summary judgment motion
“Summary judgment law . . . require[s] a defendant moving for summary
judgment to present evidence, and not simply point out that the plaintiff does not possess,
and cannot reasonably obtain, needed evidence. . . . [T]he defendant must ‘support[]’ the
‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to
interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’
[Citation.] The defendant may, but need not, present evidence that conclusively negates
an element of the plaintiff’s cause of action. The defendant may also present evidence
14 Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, which
was cited by plaintiffs in their brief, is factually inapposite. In that case, the respondent’s
answer to a cross-complaint did not contain a general denial or otherwise refute the
material allegation in question. (See id. at pp. 1267-1268.)
17.
that the plaintiff does not possess, and cannot reasonably obtain, needed evidence . . . .
But . . . the defendant must indeed present evidence . . . .” (Aguilar, supra, 25 Cal.4th at
pp. 854-855, fns. omitted.) “The same rules of evidence that apply at trial also apply to
the declarations submitted in support of and in opposition to motions for summary
judgment. Declarations must show the declarant’s personal knowledge and competency
to testify, state facts and not just conclusions, and not include inadmissible hearsay or
opinion.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761; accord, § 437c,
subd. (d).)
On appeal, plaintiffs contend Rosen’s declaration “failed to affirmatively establish
personal knowledge of the facts attested to as required by section 437c[, subdivision
](d).” In general, “we review the trial court’s final rulings on evidentiary objections by
applying an abuse of discretion standard.” (Powell v. Kleinman (2007) 151 Cal.App.4th
112, 122; see Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th
206, 226 [weight of authority holds appellate court reviews trial court’s rulings on
evidentiary objections made in connection with summary judgment motion for abuse of
discretion]; Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1122-
1123 (conc. opn. of Turner, P.J.) [same].) “[E]videntiary objections based on lack of
foundation . . . are traditionally left to the sound discretion of the trial court.” (Alexander
v. Scripps Memorial Hospital La Jolla, supra, at p. 226.) “As the parties challenging the
court’s decision, it is plaintiffs’ burden to establish such an abuse, which we will find
only if the trial court’s order exceeds the bounds of reason.” (DiCola v. White Brothers
Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.) Here, we find no abuse
of discretion. Under penalty of perjury, Rosen—in his position as TMD’s chairman and a
shareholder—averred the facts stated in his declaration were true and correct, based on
personal knowledge of the company’s operations and/or review of relevant records. (See
Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1169; People ex rel. Owen v. Media One
Direct, LLC (2013) 213 Cal.App.4th 1480, 1484.) “The trial court was entitled to accept
18.
these assertions of personal knowledge.” (Butte Fire Cases, supra, at p. 1169, fn.
omitted.)15
c. TMD’s motion for an order deeming admitted truth of facts
“If a party to whom [RFA’s] are directed fails to serve a timely response, . . .
[¶] . . . [¶] . . . [t]he requesting party may move for an order that the genuineness of any
documents and the truth of any matters specified in the requests be deemed admitted
. . . .” (§ 2033.280, subd. (b).) “The court shall make this order, unless it finds that the
party to whom the [RFA’s] have been directed has served, before the hearing on the
motion, a proposed response to the [RFA’s] that is in substantial compliance with
[s]ection 2033.220.[16]” (§ 2033.280, subd. (c).) “ ‘ “Substantial compliance . . . means
actual compliance in respect to the substance essential to every reasonable objective of
the statute.” [Citation.] Where there is compliance as to all matters of substance[,]
technical deviations are not to be given the stature of noncompliance. [Citation.]
15 Plaintiffs also argue the superior court erroneously considered the declarations of
Fellner and Jacobs. We conducted a de novo review of TMD’s summary judgment
motion and reached our holding without taking these challenged declarations into
account. (See at pp. 21-24, post.)
16 Section 2033.220 provides:
“(a) Each answer in a response to [RFA’s] shall be as complete and
straightforward as the information reasonably available to the responding
party permits.
“(b) Each answer shall: [¶] (1) Admit so much of the matter involved in
the request is true, either as expressed in the request itself or as reasonably
and clearly qualified by the responding party. [¶] (2) Deny so much of the
matter involved in the request is untrue. [¶] (3) Specify so much of the
matter involved in the request as to the truth of which the responding party
lacks sufficient information or knowledge.
“(c) If a responding party gives lack of information or knowledge as a
reason for a failure to admit all or part of a [RFA], that party shall state in
the answer that a reasonable inquiry concerning the matter in the particular
request has been made, and that the information known or readily
obtainable is insufficient to enable that party to admit the matter.”
19.
Substance prevails over form.’ [Citations.]” (St. Mary v. Superior Court (2014) 223
Cal.App.4th 762, 779 (St. Mary).) The language of section 2033.280, subdivision (c)
“suggests that the court evaluate qualitatively the proposed response to RFA[’]s in toto to
determine whether it substantially complies with the code. It does not permit the court to
segregate each individual RFA response for the purpose of finding that portions of the
document are code compliant (and will therefore be accepted), while concluding that
other portions are noncompliant (and will thus be rejected).” (St. Mary, supra, 223
Cal.App.4th at pp. 779-780.)
On appeal, plaintiffs contend the superior court should have granted their motion
for an order deeming admitted the truth of the matters specified in RFA Nos. 76 through
113 because TMD’s answers thereto were “offset,” i.e., improperly numbered.
“Discovery orders are generally reviewed for abuse of discretion.” (St. Mary, supra, 223
Cal.App.4th at p. 772; see Denham v. Superior Court (1970) 2 Cal.3d 557, 566
[“ ‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason,
all of the circumstances before it being considered.’ ”].) “Moreover, . . . we review the
trial court’s actual ruling, not its reasons. We therefore will affirm an order correct in
theory, even where the court’s reasoning is erroneous.” (RiverWatch v. County of San
Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 776; accord, Davey v.
Southern Pacific Co. (1897) 116 Cal. 325, 329.)
The statute in question permits the party propounding the RFA’s to move for a
deemed admitted order when the party responding to said RFA’s “fails to serve a timely
response.” (§ 2033.280, subd. (b), italics added.) “ ‘If there is no ambiguity in the
language, we presume the Legislature meant what it said and the plain meaning of the
statute governs.’ [Citation.]” (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th
524, 530.) In their briefs, plaintiffs never claim TMD’s responses were untimely. The
record demonstrates these responses were served on June 20, 2016, approximately two
months before plaintiffs filed their motion and nearly three months before the motion
20.
hearing. (Cf. People v. $2,709 United States Currency (2014) 231 Cal.App.4th 1278,
1281 [motion filed after defendant failed to respond to RFA’s for six months].) Thus, the
motion was properly denied.17
d. Summary judgment motion
“[A]s the reviewing court, we determine de novo whether an issue of material fact
exists and whether the moving party was entitled to summary judgment as a matter of
law. [Citation.] In other words, we must assume the role of the trial court and reassess
the merits of the motion. [Citation.] In doing so, we will consider only the facts properly
before the trial court at the time it ruled on the motion. [Citation.]” (Brantley v. Pisaro
(1996) 42 Cal.App.4th 1591, 1601.) “We apply the same three-step analysis required of
the trial court. First, we identify the issues framed by the pleadings since it is these
allegations to which the motion must respond. Second, we determine whether the
moving party’s showing has established facts which negate the opponent’s claim and
justify a judgment in the moving party’s favor. When a summary judgment motion prima
facie justifies a judgment, the third and final step is to determine whether the opposition
demonstrates the existence of a triable issue of material fact.” (Hutton v. Fidelity
National Title Co. (2013) 213 Cal.App.4th 486, 493-494.)
In his declaration, Rosen attested TMD (1) was founded and incorporated on
June 1, 2000, and “completely separate and unrelated” to former Duche; (2) in 2000,
purchased from Dole Dried Fruit and Nut Company only real property in Glenn, Butte,
Stanislaus, and Tulare Counties; (3) never acquired the Terra Bella facility; (4) was in the
business of processing walnuts and almonds; (5) was not in the business of
manufacturing, retailing, or distributing wet augers; (6) did not manufacture, design,
17 We point out TMD answered the RFA’s in chronological order and each response
contained the text of the particular request, rendering innocuous the numbering errors in
its responses to RFA Nos. 76 through 113. In addition, the responses as a whole
substantially complied with section 2033.220.
21.
distribute, own, possess, or have control over the Terra Bella wet auger; (7) did not know
the identity of the Terra Bella auger’s manufacturer and/or designer; (8) did not own,
possess, have control over, have access to, or employ anyone at the Terra Bella facility;
and (9) was “not a predecessor or successor to” and “never had . . . an ongoing corporate
relationship with” “any named defendant in this action,” e.g., Dole Food and Dole Nut
Company. Hence, TMD satisfied its initial burden of production and established a prima
facie case that it (1) was not engaged in the business of manufacturing, designing, or
distributing wet augers; (2) neither manufactured, designed, nor otherwise controlled the
Terra Bella wet auger, (3) neither owned, possessed, nor otherwise controlled the Terra
Bella facility itself; and (4) was neither a predecessor or successor in interest to former
Duche, Dole Food, Dole Nut Company, or a related entity. We must now decide whether
plaintiffs produced evidence demonstrating the existence of a triable issue of material
fact. We conclude they did not.
i. No triable issue as to whether TMD assumed the liability of a
company engaged in the business of manufacturing, designing, or
selling wet augers
Plaintiffs did not provide evidence showing TMD itself manufactured, designed,
or sold the Terra Bella wet auger or wet augers in general. However, they alleged TMD
was liable as the “successor entity” of former Duche and/or Dole Food, whose
predecessor had purchased former Duche in 1987. Even assuming, arguendo, TMD
constituted such an entity, plaintiffs must nonetheless produce evidence demonstrating
former Duche and/or Dole Food were engaged in the business of manufacturing,
designing, and/or selling wet augers. Here, there was evidence that Dole Food (1)
engaged in real estate development until December 28, 1995; (2) developed specialized
machinery “for various phases of agricultural production and packaging which reduces
labor, improves productivity and efficiency and increases product quality”; (3) patented
apparatuses and methods for splitting closed shell pistachio nuts; and (4) in 1987,
22.
acquired almost 300 pieces of machinery, including the Terra Bella wet auger. None of
these, however, showed either former Duche or Dole Food was “engaged in the business
of manufacturing or selling [wet augers] for use or consumption and . . . placed the [Terra
Bella wet auger] on the market . . . .” (Pierson v. Sharp Memorial Hospital, Inc., supra,216 Cal.App.3d at p. 343; see Stein v. Southern Cal. Edison Co. (1992) 7 Cal.App.4th
565, 569 [“[A] product must be . . . placed in the stream of commerce . . . for imposition
of strict liability . . . .”].)18
Since there is no triable issue as to whether former Duche or Dole Food
manufactured and/or designed the Terra Bella wet auger or was engaged in the business
of manufacturing, designing, and/or selling wet augers,19 plaintiffs cannot prevail on their
causes of action for strict products liability (see Ortiz, supra, 234 Cal.App.3d at p. 187;
Hyman, supra, 35 Cal.App.3d at pp. 773-774) or negligence-based products liability (see
Gonzalez v. Autoliv ASP, Inc., supra, 154 Cal.App.4th at p. 793 [negligence theory of
products liability subsumes elements for strict products liability]).
ii. No triable issue as to whether TMD owned, possessed, or
otherwise controlled the Terra Bella facility
“ ‘[A] defendant cannot be held liable for the [allegedly] defective or dangerous
condition of property which it did not own, possess, or control. Where the absence of
ownership, possession, or control has been unequivocally established, summary judgment
is proper. [Citations.]’ [Citation.]” (Preston v. Goldman (1986) 42 Cal.3d 108, 119.)
The record before us demonstrates Setton Properties, Inc., purchased the Terra Bella
facility from a subsidiary of Dole Food in 1995, five years before TMD filed its articles
18 While there does not appear to be a dispute that Dole Food—through a
subsidiary—sold the Terra Bella facility and the accompanying wet auger to Setton
Properties, Inc. in 1995, strict liability does not apply to a seller unless the seller is
engaged in the business of selling the purportedly defective product. (See Ortiz, supra,
234 Cal.App.3d at p. 187; Hyman, supra, 35 Cal.App.3d at pp. 773-774.)
19 We reached this conclusion with respect to Dole Food in Setton I, supra, F073844.
23.
of incorporation. Plaintiffs did not provide evidence showing TMD ever owned,
possessed, or otherwise controlled the Terra Bella facility following that sale. Instead,
they argued TMD was liable because its “predecessor” concealed or failed to disclose a
dangerous condition, i.e., the Terra Bella wet auger. In their opening brief, plaintiffs
contend TMD “inherited Dole[ Food]’s negligence liability upon purchase of . . . former
. . . Duch[e]’s goodwill from Dole [Foods]” (some capitalization omitted) and cite Ray,
supra, 19 Cal.3d 22 as supporting authority. As noted, however, Ray’s product line
successor rule applies only to strict products liability claims. (Franklin v. USX Corp.,
supra, 87 Cal.App.4th at pp. 628-629; Monarch Bay II v. Professional Service Industries,
Inc., supra, 75 Cal.App.4th at pp. 1217-1219; Maloney v. American Pharmaceutical Co.,
supra, 207 Cal.App.3d at pp. 289-290.)20 Plaintiffs cannot prevail on their cause of
action for premises liability. 21
e. Plaintiffs’ other claims of evidentiary error
On appeal, plaintiffs contend the superior court “erroneously excluded”
(1) “plaintiff[s’] counsel’s statement in declaration that [TMD] had critical documents,”
i.e., documents related to TMD’s “ ‘purchase of the assets from the Dole entities’ ”; and
(2) “chain of title documents though [plaintiffs] properly requested judicial notice of
recorded documents.” (Some capitalization omitted.)
“ ‘A trial court’s exercise of discretion in admitting or excluding evidence is
reviewable for abuse [citation] and will not be disturbed except on a showing the trial
20 Even assuming, arguendo, TMD was subject to another exception to successor
nonliability (see ante, at pp. 15-16), in Setton I, supra, F073844, we found no triable
issue as to whether Dole Food owned, possessed, or otherwise controlled the Terra Bella
facility.
21 On appeal, plaintiffs complain the superior court “improperly considered . . .
TMD’s new, improper evidence and arguments on reply regarding the motion for
summary judgment.” (Some capitalization omitted.) As shown above, we conducted a
de novo review of TMD’s summary judgment motion and reached our holding without
taking this challenged evidence into account.
24.
court exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.’ [Citation.]” (Christ v. Schwartz (2016) 2
Cal.App.5th 440, 446-447.) “Claims of evidentiary error under California law are
reviewed for prejudice applying the ‘miscarriage of justice’ or ‘reasonably probable’
harmless error standard . . . . Under [this] standard, it is the burden of appellants to show
that it is reasonably probable that they would have received a more favorable result . . .
had the error not occurred. [Citations.]” (Id. at p. 447.)
Even assuming, arguendo, the court erred, we cannot conclude there was a
reasonable probability TMD’s summary judgment motion would have been defeated:
plaintiffs still failed to produce evidence demonstrating former Duche and/or Dole Food
were engaged in the business of manufacturing, designing, and/or selling wet augers.
f. Plaintiffs’ other claims of errors relating to discovery
On appeal, plaintiffs assert the superior court “fail[ed] to enforce the Discovery
Act with respect to [their] written discovery . . . .” (Some capitalization omitted.)
Specifically, the court (1) did not grant their motion to compel further responses as to
RFA No. 1, which allegedly concerned whether TMD acquired former Duche’s goodwill;
(2) granted said motion as to RFA No. 49 with the qualifying language “to the ‘. . . extent
any documents are in [TMD]’s possession and control’ ”; and (3) did not continue the
summary judgment hearing after it granted said motion in part “despite the fact that the
additional discovery had not been produced prior to [this] hearing.” Plaintiffs reiterate
their “theory of the case is that . . . TMD was—if not the entity that designed the [Terra
Bella facility] and caused the dangerous condition which killed Fernando Santiesteban—
the successor-in-interest to the defunct Dole sub-entities that sold the goodwill of . . .
[f]ormer . . . Duch[e] . . . .”
Plaintiffs also assert the court erroneously and prejudicially denied multiple
requests to continue the summary judgment hearing because they “demonstrated an
inability to obtain essential evidence directly proving . . . TMD was a successor in
25.
interest to the assets and liabilities of . . . [f]ormer . . . Duch[e],” including unredacted
escrow documents that “could show the holding, sale, or intent to transfer interest in the
residual goodwill of . . . [f]ormer . . . Duch[e] . . . to . . . TMD,” and were “essentially
penalized” “for failing to provide the very evidence they were denied time to seek in
discovery.”
“Management of discovery generally lies within the sound discretion of the trial
court.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612.) Furthermore,
“when a plaintiff appeals from a judgment to obtain review of a trial court’s discovery
orders, the plaintiff ‘must “show not only that the trial court erred, but also that the error
was prejudicial”; i.e., the plaintiff must show that it is reasonably probable the ultimate
outcome would have been more favorable to the plaintiff had the trial court not erred in
the discovery rulings. [Citation.]’ [Citation.] An appellant must ‘show that the error was
prejudicial [citation] and resulted in a “miscarriage of justice” [citation].’ [Citation.]”
(Property Reserve, Inc. v. Superior Court (2016) 6 Cal.App.5th 1007, 1020.)
“The decision whether to grant a continuance under . . . section 437c, subdivision
(h), is reviewed for an abuse of discretion.” (Jade Fashion & Co., Inc. v. Harkham
Industries, Inc. (2014) 229 Cal.App.4th 635, 643.) Nonetheless, any error in failing to
grant a request for a continuance “is reversible only if [said] error . . . was prejudicial.”
(Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527; see § 475 [“No judgment,
decision, or decree shall be reversed or affected by reason of any error . . . , unless it shall
appear from the record that such error . . . was prejudicial, and also that by reason of such
error . . . , the said party complaining or appealing sustained and suffered substantial
injury, and that a different result would have been probable if such error . . . had not
occurred or existed. There shall be no presumption that error is prejudicial, or that injury
was done if error is shown.”].)
Even assuming, arguendo, the court erred, we cannot conclude there was a
reasonable probability TMD’s summary judgment motion would have been defeated:
26.
plaintiffs failed to produce evidence demonstrating former Duche and/or Dole Food were
engaged in the business of manufacturing, designing, and/or selling wet augers.
DISPOSITION
The judgment of the superior court entered on an order granting summary
judgment is affirmed. Costs on appeal are awarded to defendant T.M. Duche Nut Co.,
Inc.
DETJEN, Acting P.J.
WE CONCUR:
MEEHAN, J.
DE SANTOS, J.
27.