Kelley v. AW Distributing, Inc. ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN KELLEY, et al., Case No. 20-cv-06942-JSW 8 Plaintiffs, ORDER GRANTING, IN PART, AND DENYING, IN PART, DAIHO 9 v. SANGYO, INC’S MOTION FOR SUMMARY JUDGMENT AND 10 AW DISTRIBUTING, INC., et al., SCHEDULING CASE MANAGEMENT CONFERENCE Defendants. 11 Re: Dkt. No. 225 12 13 This matter comes before the Court on consideration of the motion for summary judgment 14 filed by Defendant Daiho Sangyo, Inc. (“Daiho”). Plaintiffs oppose the motion. AW Distributing, 15 Inc. (“AW Distributing”), AW Product Sales & Marketing, Inc., Kennic Ho, and Alice Wong also 16 oppose Daiho’s motion.1 The Court has considered the parties’ papers, relevant legal authority, 17 and the record in this case and HEREBY GRANTS, IN PART, AND DENIES, IN PART, Daiho’s 18 motion. 19 BACKGROUND 20 Unless otherwise noted, the following facts are undisputed. Plaintiffs bring claims against 21 Daiho, the AW Defendants, and the Wal-Mart Defendants for wrongful death (claim 1), strict 22 product liability based on design defects, manufacturing defects, and failure to warn (claims 2 23 24 1 Plaintiffs, the AW Defendants, and Walmart Inc., Wal-Mart Stores, Inc., Wal-Mart Stores 25 East, LP, and Wal-Mart Stores East, LLC (collectively the “Wal-Mart Defendants”) asked the Court to defer ruling on the motion to allow discovery, pursuant to Federal Rule Civil Procedure 26 56(d). The parties later stipulated to withdraw those requests. (Dkt. Nos. 264-265.) The Wal- 27 Mart Defendants did not file a substantive opposition to Daiho’s motion. 1 through 4), negligence (claim 5), breach of express and implied warranties (claims 6 and 7), 2 violations of California’s Unfair Competition Law and California’s False Advertising Law (claims 3 8 and 9), public nuisance (claim 10), negligent infliction of emotional distress (claim 11), and a 4 survival claim (claim 12). The AW Defendants filed a cross-claim against Daiho seeking 5 indemnification and contribution. (Dkt. No. 82.) 6 The AW Defendants sell a dust removal product, Ultra Duster, which contains “a 7 pressurized volatile, fluorinated hydrocarbon gas called 1-1, difluoroethane [‘DFE’].” (First 8 Amended Complaint (“FAC”) ¶ 59.) According to Plaintiffs, DFE is a popular substance to abuse 9 by inhaling. (Id. ¶¶ 61-70.) Ultra Duster’s label includes a statement that “misuse by deliberately 10 concentrating and inhaling contents may be harmful or fatal.” Ultra Duster also purportedly 11 contains a “bittering agent” to discourage inhalant abuse, but Plaintiffs claim the bittering agent is 12 ineffective and may not even be present in Ultra Duster. (Id. ¶¶ 168, 183-184.) 13 On November 3, 2018, non-parties Colton Treu and John Stender purchased a can of Ultra 14 Duster at a Wal-Mart in Chippewa Falls, Wisconsin.2 Treu and Stender inhaled the contents while 15 Treu was driving, and Treu drove off the highway and struck and killed members of a group of 16 Girl Scouts and their parents. Plaintiffs’ relatives were among the individuals killed. 17 Daiho distributed Ultra Duster to AW Distributing from July 2008 until June 2018. (Dkt. 18 No. 225-1, Declaration of John Radmer (“Radmer Decl.”), ¶¶ 2-3; Dkt. No. 225-2 at EC pp. 2-6, 19 Radmer Decl., Ex. A, Declaration of Toru Hosoi (“Hosoi Decl.”), ¶¶ 2-3); Dkt. No. 225-2 at ECF 20 pp. 4-38, Radmer Decl., B, Daiho Response to Plaintiffs’ First Set of Interrogatories (“Daiho 21 Resp. to Rog.”) 4(b)); see also Dkt. No. 236, Declaration of Kennic Ho (“Ho Decl.”), ¶¶ 3, 12.)3 22 Daiho and the AW Defendants’ business relationship ended in litigation (the “Daiho-AW 23 2 The Court denied the AW Defendants’ motion to transfer this case to the United States 24 District Court for the Western District of Wisconsin. (Dkt. No. 71.) A year after Plaintiffs filed this case, their counsel filed a case in Circuit Court for Chippewa County Wisconsin that arises out 25 of the same fatal accident and asserts many of the same claims asserted in this case, albeit under Wisconsin law. Zwiefelhofer, et al., v. AW Distributing, Inc., et al., No. 21CV282. In addition to 26 the defendants named in this case, the Zwiefelhofer plaintiffs also sued Treu and various insurance companies. 27 1 Litigation”). 2 Daiho does not dispute that “during the time [it] sold Ultra Duster to … AW Distributing, 3 [it] was involved in the design of Ultra Duster[.]” (Stipulation to Withdraw Rule 56(d) Requests 4 at 2:12-14.) Daiho argues it is entitled to summary judgment because it did not manufacture, sell, 5 or otherwise distribute Ultra Duster after June 2018 and argues that it did not manufacture, 6 distribute, or sell the can found in Treu’s vehicle (the “can at issue”). (See Hosoi Decl., ¶¶ 2-8; 7 Daiho Resp. to Rogs. 4, 15.) 8 The Court will address additional facts as necessary in the analysis. 9 ANALYSIS 10 A. Applicable Legal Standards. 11 “A party may move for summary judgment, identifying each claim or defense . . . on 12 which summary judgment is sought.” Fed. R. Civ. P. 56(a). A principal purpose of the summary 13 judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. 14 Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment, or partial summary judgment, is 15 proper “if the movant shows that there is no genuine dispute as to any material fact and the movant 16 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may not weigh 17 evidence or make determinations of credibility. Rather, “[t]he evidence of the non-movant is to be 18 believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, 19 477 U.S. 242, 255 (1986). 20 The party moving for summary judgment bears the initial burden of identifying those 21 portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue 22 of material fact. Celotex, 477 U.S. at 323; see also Fed. R. Civ. P. 56(c). An issue of fact is 23 “genuine” only if there is sufficient evidence for a reasonable fact finder to find for the non- 24 moving party. Anderson, 477 U.S. at 248-49. A fact is “material” if it may affect the outcome of 25 the case. Id. at 248. If the party moving for summary judgment does not have the ultimate burden 26 of persuasion at trial, the party must produce evidence which either negates an essential element of 27 the non-moving party’s claims or show that the non-moving party does not have enough evidence 1 Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). 2 Once the moving party meets its initial burden, the non-moving party must “identify with 3 reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 4 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th 5 Cir. 1995)). It is not the Court’s task “to scour the record in search of a genuine issue of triable 6 fact.” Id. (quoting Richards, 55 F.3d at 251); see also Fed. R. Civ. P. 56(c)(3) (“The court need 7 consider only the cited materials, but it may consider other materials in the record.”). “A mere 8 scintilla of evidence will not be sufficient to defeat a properly supported motion for summary 9 judgment; rather, the nonmoving party must introduce some significant probative evidence 10 tending to support the complaint.” Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th 11 Cir. 1997) (cleaned up). If the non-moving party fails to point to evidence precluding summary 12 judgment, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. 13 B. Evidentiary Issues. 14 Plaintiffs filed a request for judicial notice and ask the Court to take notice of over 80 15 media reports documenting injuries caused by the abuse of dust removal sprays. These reports 16 were most relevant to the analysis of the public nuisance claim. Although the Court GRANTS 17 Plaintiffs’ request, it addresses their failure to rely on particular exhibits in its analysis of that 18 claim. 19 The AW Defendants object to Daiho Exhibits F, G, I, J, K, O and Q on the basis that Daiho 20 failed to establish an adequate foundation and failed to authenticate the exhibits. The AW 21 Defendants also argue the exhibits contain inadmissible hearsay. (Dkt. No. 244, Objections.) 22 With the exception of Exhibit K, the Court did not rely on any of these exhibits to resolve the 23 motion. Accordingly, the Court OVERRULES AS MOOT the AW Defendants’ objections to 24 Exhibits F, G, I, J, O, and Q. Exhibit K is a police report, and Mr. Radmer establishes that the 25 document is what it purports to be. Daiho also submits deposition testimony regarding the 26 contents of the report. Accordingly, the Court OVERRULES the AW Defendants’ objections to 27 Exhibit K. 1 C. Daiho Is Entitled to Summary Judgment on the Strict Liability Claims. 2 The Court has determined that Plaintiffs’ strict liability claims are governed by Wisconsin 3 law. (Dkt. No. 216, Order Granting, in Part, and Denying, in Part, Motion to Apply Wisconsin 4 Law at 7:4-6.) The essential elements of a strict liability claim against a manufacturer are set forth 5 in Wisconsin Statute section 895.047(1)(a)-(e) (“Section 895.047”).4 “[S]trict liability can extend 6 to entities besides the manufacturer under certain circumstances.” State Farm. Fire & Cas. Co. v. 7 Amazon.com, 390 F. Supp. 3d 964, 968 (W.D. Wis. 2019); see also Wis. Stat. § 895.047(2) (seller 8 and distributor liability). Sellers and distributors of a product are not liable unless a plaintiff 9 proves the manufacturer would be liable under Section 895.047(1) and proves, inter alia, that “the 10 seller or distributor has contractually assumed one of the manufacturer’s duties to … design… the 11 product.” Id. § 895.047(2)(a)(1).5 12 In 2011, the Wisconsin legislature enacted the Omnibus Tort Reform Act of 2011 or “Act 13 2.” See 2011 Wis. Act. 2 §§ 29-31, 45(5) (codified at Wis. Stat. § 895.046). Act 2 was intended 14 to 15 clarify product liability law, generally, and the application of the risk contribution theory of liability …, specifically, in order to return 16 tort law to its historical, common law roots. This return both protects the rights of citizens to pursue legitimate and timely claims 17 of injury resulting from defective products, and assures that business may conduct activities in [Wisconsin] without fear of being sued for 18 indefinite claims of harm from products which businesses may never have manufactured, distributed, sold, or promoted, or which were 19 made and sold decades ago. 20 Wis. Stat. § 895.046(1g). 21 [Act 2] applies to all actions in law or equity, whenever filed or accrued, in which a claimant alleges that the manufacturer, 22 distributor, seller, or promoter of a product is liable for an injury or harm to a person or property, including actions based on allegations 23 that the design, manufacture, distribution, sale, or promotion of, or instructions or warnings about, a product caused or contributed to a 24 25 4 Daiho’s focus is on whether it manufactured, distributed, or sold the can at issue, and it has 26 not challenged Plaintiffs’ ability to prove these elements. 27 5 Section 895.047(2)(a) includes two other conditions under which a seller or distributor may be held liable, but Plaintiffs do not argue those conditions are applicable. (Dkt. No. 238, 1 personal injury or harm to a person or property, a private nuisance, and to all related or independent claims, including unjust 2 enrichment, restitution, or indemnification. 3 Id. § 895.046(2) (emphasis added). 4 Act 2 provides for two avenues of liability, only one of which is relevant here. In addition 5 to proving the other elements necessary to their claim, a plaintiff is required to prove “the 6 manufacturer, distributor, seller, or promoter of a product manufactured, distributed, sold, or 7 promoted the specific product alleged to have caused” injury or harm. See R.S.B. v. Merck & Co., 8 Inc., No. 20-C-1402-WCG, 2021 WL 6113765, at *3 (E.D. Wis. Dec. 27, 2021) (quoting Wis. 9 Stat. § 895.046(3)) (emphasis added).6 10 Section 895.047 does not define the terms manufacturer, distributor, or seller. Plaintiffs 11 and the AW Defendants argue there is sufficient evidence to show that Daiho can be held liable 12 based on its role in designing Ultra Duster.7 See, e.g., State Farm, 390 F. Supp. 3d at 972 (noting 13 Wisconsin courts have “endorsed the principle that strict liability derives from the act of putting 14 the defective product into the stream of commerce) (citing cases); see also Fuchsgruber v. Custom 15 Accessories, Inc., 244 Wis. 2d 758, 773, 628 N.W.2d 833, 841 (Wis. 2001) (“In strict product 16 liability actions, the act to which the seller’s responsibility attaches is not an act of negligence. If 17 indeed it is an act at all, it is simply the act of placing or maintaining a defective product in the 18 stream of commerce.”) (cleaned up); accord Janusz v. Symmetry Med., Inc., 256 F. Supp. 3d 995, 19 1003, 1006 (E.D. Wis. 2017) (citing Fuchsgruber and construing Act 2 as “reaffirming 20 Wisconsin’s commitment to the principles of strict liability”). Plaintiffs also argue that holding 21 Daiho liable under these circumstances is entirely consistent with the general principle of strict 22 liability: “to shift costs associated with unsafe products to those who are in the best position to 23 disperse those costs (be it through insurance, indemnity, or some other means).” Januscz, 256 F. 24 25 6 The second avenue permits a plaintiffs to proceed without specific product identification under a “risk contribution” theory. R.S.B., 2021 WL 6117765, at *3 (citing Wis. Stat. § 26 895.046(4)). Plaintiffs disclaim reliance on the risk contribution theory. (Plaintiffs’ Opp. Br. at 13:5-6.) 27 7 Plaintiffs state they are proceeding against Daiho based on its role in Ultra Duster’s design. 1 Supp. 3d at 1006. 2 After June 8, 2018, AW Distributing obtained Ultra Duster directly from third-party 3 defendant Mid-Land Ultra d/b/a Green Island.8 The can of Ultra Duster found in Treu’s vehicle 4 bears markings that show it was manufactured on September 3, 2018 by Green Island. (See, e.g., 5 Ho Decl., ¶¶ 7, 9; Dkt. No. 241, Declaration of David Martinez ISO Plaintiffs’ Opp. (“Martinez 6 Decl.”), ¶¶ 7-8, 10-13; Dkt. Nos. 241-4, 241-7, 242-3, and 241-9, Martinez Decl., Ex. E, AW 7 Distributing Resp. to Rog. 16, and Exs. H-J; Dkt. No. 56-1, Declaration of Lucas A. Messenger, ¶ 8 4, Ex. C at ECF pp. 17-213, Deposition of Kennic Ho at 20:7-19, 21:15-21; Hosoi Decl., ¶¶ 5-6; 9 Radmer Decl., ¶¶ 12, 14; Dkt. No. 225-3 at ECF pp. 1-2, Radmer Decl., Ex. K ; Dkt. No. 225-3 at 10 ECF pp. 38-50, Radmer Decl., Ex. M, Deposition of Timothy Bowman (“Bowman Depo.”) at 11 9:19-11:8, 18:8-21.)9 12 Mr. Ho attests that, because of the time required to supply Green Island with parts and “the 13 unknown level of inventory of parts held by Green Island in June 2018,” it is “entirely possible” 14 that when the can at issue was made in September 2018, it was made with parts Daiho supplied to 15 Green Island. (Ho Decl., ¶ 17.)10 He also attests “[t]he specifications for the Ultra Duster product 16 supplied by [Green Island] remained unchanged from those created by Daiho. As such, the 17 products procured by [AW Distribution] from Green Island were the same as what Daiho would 18 have shipped.” (Id., ¶ 16.) Daiho does not dispute the evidence that Ultra Duster’s design did not 19 change between June and September 2018. It argues that fact is immaterial because Wisconsin 20 8 Green Island has not yet appeared. 21 9 In 2016, Mr. Ho was deposed in Greico et al. v. AW Distributing, Inc. et al., Case No. 50‐ 22 2012‐CA‐021342‐MB (Fla. Cir. Ct. Feb. 15, 2016) (the “Greico Litigation”). In that case, the plaintiffs sued Daiho, AW Distributing, and Wal-Mart East, based on allegations they had been 23 severely injured by a driver who had inhaled Ultra Duster. (Martinez Decl., ¶ 14; Dkt. No. 241- 10, Martinez Decl., Ex. K, Greico Litigation Complaint.) 24 10 The AW Defendants argue that because Plaintiffs allege the bittering agent was ineffective, 25 Daiho could be held liable as a manufacturer of a component part. See Janusz, 256 F. Supp. 3d at 1008 (concluding defendant could be liable for manufacturing the component of the product 26 alleged to be defective even though it was incorporated into larger product). However, Plaintiffs’ theory is not that one component of Ultra Duster was defective. They argue the entire product, 27 and its accompanying warnings, were defective. Accordingly, the Court finds the AW 1 law does not provide liability for “so called non-manufacturer designers.” (Dkt. 247, Reply at 6:8- 2 9.) 3 Mr. Ho may have knowledge about the time it would have taken to supply Green Island 4 with the relevant parts for Ultra Duster, but he does not include those details in his declaration. 5 Even construing his declaration in the light most favorable to Plaintiffs and the AW Defendants, 6 Mr. Ho can only speculate about Daiho’s involvement in placing that can into the stream of 7 commerce.11 Without further evidence, Plaintiffs cannot overcome Daiho’s motion. See 8 Summers, 127 F.3d at 1152. Accordingly, the Court concludes Daiho is entitled to judgment in its 9 favor on Plaintiffs’ second, third, and fourth claims for relief.12 10 D. Negligence and Negligent Infliction of Emotional Distress. 11 Daiho argues the Court should apply Wisconsin law to Plaintiffs’ negligence claims 12 because these claims are based on theories of product liability. Plaintiffs argue Daiho fails to meet 13 its burden to show Wisconsin law should apply. Although they take the position that their 14 negligence claims are not product liability claims, Plaintiffs do not suggest the claims are based on 15 anything other than the alleged defects in Ultra Duster’s design, manufacturing, or warnings. 16 Accordingly, the Court concludes that Wisconsin law should be applied to these claims as well. 17 The Wisconsin Supreme Court recently held that Section 895.047 “does not extinguish a 18 plaintiff’s ability to bring a claim in negligence against a product manufacturer.” Murphy v. 19 Columbus McKinnon Corp., 405 Wis. 2d 157, 186, 982 N.W.2d 898, 912 (Wis. 2022); see also 20 Janusz, 256 F. Supp. 3d at 1008 (citing Glassey v. Continental Ins. Co., 176 Wis. 2d 587, 602, 500 21 N.W.2d 295, 301 (Wis. 1993)); Wis. Stat. § 895.047(6). A “manufacturer’s duty of care includes 22 the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct 23 adequate inspections and tests to determine the extent of defects.” Moore v. Nat’l Presto Indus., 24 Inc., 603 F. Supp. 3d 676, 683 (W.D. Wis. 2022) (citing Wis. Civil Jury Instructions § 3200(2)). 25 26 11 The Court SUSTAINS Daiho’s objection to the portion of Mr. Ho’s declaration asserting it is “entirely possible” that the can at issue was made with parts supplied by Daiho. 27 1 Daiho argues that Section 895.046 bars Plaintiffs’ claims because it did not manufacture, 2 sell, or distribute the can at issue. The Court agrees that the product identification requirement of 3 Section 895.046 applies to Plaintiffs’ common law claim for negligence. See, e.g., R.S.B., 2021 4 WL 6113765, at *4-*5; Frase v. Ashland Chem. Co. Div. of Ashland, Inc., No. 19-cv-273-WMC, 5 2020 WL 1974190, at *3 (W.D. Wis. Apr. 24, 2020). However, the unrefuted evidence before the 6 Court is that Ultra Duster’s design remained unchanged between July and September 2018. The 7 Court concludes that evidence is sufficient to overcome Daiho’s motion on the negligence based 8 claims. Daiho’s arguments that it cannot be liable because the AW Defendants had the 9 opportunity to change the formulation of Ultra Duster are issues of fact relating to causation. 10 Accordingly, the Court DENIES Daiho’s motion for summary judgment on Plaintiffs’ 11 common law negligence claim. Because Daiho does not challenge any other elements of 12 Plaintiffs’ claim for negligent infliction of emotional distress, the Court DENIES its motion for 13 summary judgment on that claim as well. 14 E. Daiho Is Entitled to Judgment on the Public Nuisance Claim. 15 Plaintiffs also assert a claim for public nuisance under California law, which provides that 16 a nuisance is, inter alia, “anything that is injurious to health or is indecent or offensive to the 17 senses[.]” Cal. Civ. Code § 3479. “A public nuisance is one which affects at the same time an 18 entire community or neighborhood, or any considerable number of persons, although the extent of 19 the annoyance or damage inflicted upon individuals may be unequal.” Id. § 3480. In order to 20 show “standing” to pursue this claim, Plaintiffs must be able to show they suffered harm that is 21 “different from the type of harm suffered by the general public.” Schaeffer v. Gregory Village 22 Partners, L.P., 105 F. Supp. 3d 951, 966 (N.D. Cal. 2015); see also Cal. Civ. Code § 3493 (“A 23 private person may maintain an action for a public nuisance, if it is specially injurious to himself, 24 but not otherwise.”). 25 To satisfy this requirement, Plaintiffs’ injury must be “different in kind-not merely in 26 degree-from that suffered by the general public.” Ileto v. Glock, Inc., 349 F.3d 1191, 1211 (9th 27 1 Cir. 2003) (emphasis in original).13 In Ileto, the plaintiffs were victims of gun violence who 2 brought claims for negligence and public nuisance against gun manufacturers, distributors, and 3 dealers. Id. at 1194. The Ninth Circuit concluded that most of the plaintiffs satisfied the standing 4 requirement by alleging they suffered “trauma resulting from an assault with a gun and gun shot 5 wounds.” Id. at 1212. The court concluded that harm was different in kind from “the danger, fear, 6 inconvenience, and interference with the use and enjoyment of public places that affect the tenor 7 and quality of everyday life that plaintiffs allege are suffered by the general public.” Id. (cleaned 8 up). 9 Daiho argues Plaintiffs cannot show their injuries are “special” or otherwise different from 10 the harm they claim is suffered by the general public. Plaintiffs argue that “Daiho contributed to 11 an addiction crisis of DFE abuse, endangering drivers and pedestrians on public roadways,” and 12 argue “the general public suffers from danger, fear, inconvenience, and interference with the use 13 and enjoyment of public places.” (Plaintiffs Opp. Br. at 20:25-26 (internal quotations omitted).) 14 Plaintiffs allege, however, that Defendants created a public nuisance because they induced people 15 to use Ultra Duster in a manner that “resulted in death and injury to innocent bystanders in motor 16 vehicle crashes.” (FAC ¶¶ 315, 318-320, 325.) 17 Plaintiffs also argue the evidence they submit shows “the widespread abuse of Ultra Duster 18 in California and Wisconsin, and the harms that such abuse has caused the community[.]” 19 (Plaintiffs’ Opp. Br. at 23 n.9.) One of the exhibits on which Plaintiffs rely consists of a large 20 number of media reports. Another exhibit consists of multiple documents produced by the Wal- 21 Mart Defendants. (Martinez Decl., ¶¶ 2-3; Dkt. No. 241-1, Martinez Decl., Ex. A; Dkt. No. 242-2, 22 Martinez Decl., Ex. B.) Finally, Plaintiffs rely on an expert report submitted in the Greico 23 Litigation. (Martinez Decl., ¶ 6; Dkt. No. 241-3, Ex. C.) However, Plaintiffs do not refer the 24 25 13 Daiho also argues that Plaintiffs, as non-residents, should not be permitted to pursue this claim under California law. Under Wisconsin law, a plaintiff also must demonstrate an injury that 26 differs from the injury suffered by the general public. See, e.g., Costas v. Fond du Lac, 24 Wis. 2d 409, 414, 129 N.W.2d 217, 219 (Wis. 2005) (“A public nuisance which causes a particular injury 27 to an individual different in kind and degree from that suffered by the public constitutes a private 1 Court to specific articles, documents, or portions of the expert report that would support their 2 assertion that they have suffered harms that differ in kind and not merely in degree from the 3 general public. It is not this Court’s task to scour the record for such evidence. See Keenan, 91 4 F.3d at 1279. 5 Accordingly, the Court concludes Plaintiffs have not met their burden to overcome Daiho’s 6 motion, and it GRANTS Daiho’s motion on Plaintiffs’ public nuisance claim.14 7 F. Daiho Is Entitled to Judgment on the Breach of Warranty Claims. 8 Daiho argues that under either Wisconsin or California law it is entitled to summary 9 judgment on Plaintiffs’ two breach of warranty claims because it did not sell the can at issue. 10 Plaintiffs argue Daiho’s motion is premature because the assertion that Daiho did not manufacture 11 or sell the can at issue has not been tested in discovery. Because Plaintiffs and the AW 12 Defendants withdrew their Rule 56(d) requests, for the reasons set forth in Section C, Mr. Ho can 13 only speculate about Daiho’s role in manufacturing or selling the can at issue. 14 Accordingly, the Court GRANTS Daiho’s motion for summary judgment on these 15 claims.15 16 G. Daiho is Entitled to Judgment on the UCL Claim. 17 Plaintiffs have agreed to drop their UCL claim against Daiho. Accordingly, the Court 18 GRANTS Daiho’s motion for summary judgment on that claim.16 19 H. Daiho is Not Entitled to Summary Judgment on the Wrongful Death and Survivor Claims. 20 21 Daiho moved for summary judgment on these claims on the basis that the Plaintiffs lack 22 23 14 Because the Court concludes Daiho is entitled to summary judgment on Plaintiffs’ public nuisance claim, it also is entitled to judgment on the AW Defendants’ cross-claim, to the extent 24 the cross-claim seeks relief based on this claim. 25 15 Again, to the extent the AW Defendants’ cross-claim seeks relief based on Plaintiffs’ warranty claims, Daiho is entitled to judgment in its favor. 26 16 Daiho did not address Plaintiffs’ FAL claim in its motion. In light of Plaintiffs’ 27 concessions regarding the UCL claim, the Court ORDERS the parties to meet and confer as to 1 any underlying claim. Because the Court has denied its motion for summary judgment on the 2 negligence claims, the Court DENIES its motion on these claims as well. 3 I. Daiho Is Entitled to Summary Judgment on the AW Defendants’ Cross-Claim. 4 Daiho argues that the AW Defendants’ cross-claim is barred by their Settlement 5 Agreement, which contains a release (“Release”) and a covenant not to sue (“Covenant”). The 6 Release provides, in relevant part: 7 [u]pon full payment of the Settlement Sum, [AW Distributing] on behalf of itself and on behalf of the AWD Released Persons17 will 8 hereby fully, finally and forever release all matters, disputes, and differences, whether known or unknown, suspected or unsuspected, 9 which now exist or may exist in the future against the Daiho Released Persons18, or any of them, which were or could have been 10 asserted, and which constitute one or more Released Claims; and Daiho, on behalf of itself and on behalf of the Daiho Released 11 Persons hereby will fully, finally and forever release all matters, disputes and differences, whether known or unknown, suspected or 12 unsuspected, which now exist or may exist in the future against the AWD released Persons, or any of them, which were or could have 13 been asserted, and which constitute one or more Released Claims. 14 (Radmer Decl., ¶ 22; Dkt. No. 225-3 at ECF pp. 412-421, Radmer Decl., Ex. U, Daiho-AW 15 Litigation Settlement Agreement, ¶ 5.) 16 The Covenant provides, in relevant part: 17 [e]ach Party intends hereby to settle, fully, finally and forever, and to release all matters, disputes and differences, whether known or 18 unknown, suspected or unsuspected, which now exist or may exist in the future against the other Parties, or any of them, which were or 19 could have been asserted, and which constitute one or more Released Claims. Each Party further covenants not to sue or take 20 any further legal action whatsoever by reason of any and all Released Claims. Each Party covenants not to bring, commence, 21 institute, maintain, prosecute, voluntarily aid in, encourage, benefit from, or otherwise support any action at law, proceeding in equity, 22 or any other legal proceeding against any Released Persons arising out of or in any way related to any of the Released Claims.… 23 24 17 The AWD Released Persons are Ho, Wong, and AW Distribution. (Settlement Agreement, 25 § 1(d). 26 18 The Daiho Released Persons are Daiho and “its respective parent and affiliated entities, including Air Water, Inc., subsidiaries and predecessors-in-interest, past, present and future 27 principals, directors, officers, employees, founders, shareholders, members, consultants, attorneys, 1 (Id. ¶ 7.) 2 Finally, the term Released Claims means, 3 [t]o the fullest extent permitted by law, the release and discharge of any and all Claims of any kind whatsoever arising out of or related 4 to any matters, events, acts, omissions, causes or things that took place on or at any time before the Effective Date. Such Released 5 Claims include, but are not limited to, any Claims arising out of or related to in any way to the [the Daiho-AW Litigation] as well as 6 any other actions, suits, proceedings or other legal processes now pending anywhere in the world (including but not limited to the 7 [Greico Litigation]), and all Claims that were alleged or could have been alleged in such forums; (ii) any and all contracts or alleged 8 understanding between Daiho and any AWD Parties and/or AWD Released Persons including but not limited to [AW Distribution]. 9 10 (Id. ¶ 1(c) (emphasis added).) 11 It is undisputed that the accident took place before the Effective Date of the Settlement 12 Agreement. The AW Defendants argue their cross-claim for indemnification and contribution 13 must be construed to arise after the Effective Date because any losses have not been allocated 14 among the Defendants. The Court is not persuaded by the AW Defendants’ argument. First, the 15 term Claim is not linked to any particular litigation. (Id. ¶ 1(a).) Second, even taking the facts in 16 the light most favorable to the AW Defendants, based on the record before the Court, Daiho’s 17 involvement with the design of Ultra Duster took place before the Effective Date of the Settlement 18 Agreement. Finally, the AW Defendants have not come forth with any evidence to suggest the 19 language used in the Release or in the Covenant is ambiguous. Accordingly, the Court concludes 20 they have not met their burden to overcome Daiho’s motion. 21 CONCLUSION 22 For the foregoing reasons, the Court GRANTS, IN PART, AND DENIES, IN PART, 23 Daiho’s motion for summary judgment. The Court ORDERS the parties to appear for a further 24 case management conference on March 31, 2023 at 11:00 a.m., which the Court will conduct by 25 Zoom webinar. The Court reserves the right to resolve any issues by written order in lieu of a 26 Zoom appearance. 27 // ] The parties shall file an updated joint case management conference statement by March 24, 2 {| 2023. 3 IT ISSO ORDERED. a | 4 || Dated: February 21, 2023 / } □ ( } 5 } JEEFREY §. WHITE 6 United sypet Distri¢f Judge 4 / 8 9 10 1] 13 16 Oo Z 18 19 20 21 22 23 24 25 26 27 28