Beach Front Construction Company Inc et al vs Ply Gem Pacific Windows Corporation

Case Number

19CV01517

Case Type

Hearing Date / Time

Fri, 07/19/2024 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For the reasons set forth herein, the motion of defendant Ply Gem Pacific Windows Corporation for summary judgment or alternatively for summary adjudication is granted in part and denied in part. Summary adjudication is granted as to plaintiffs’ cause of action for strict liability based on a manufacturing defect (requested adjudication issue No. 2). The motion is denied as to all other requested adjudications and as to summary judgment.

Background:

Plaintiff Beach Front Construction Company, Inc. (Beach Front) is a general building contractor located in Santa Barbara. (Plaintiffs’ Response Separate Statement [PSS], undisputed fact 1.) Rick Jeffrey (Jeffrey) and his wife are owners of Beach Front and plaintiff Uptown Center LLC (Uptown). (PSS, undisputed fact 3.)

The dispute between the parties arises from the construction of the Uptown Center Project located at 3348 Spring Street in Paso Robles (the Project). Jeffrey purchased the Project properties to develop the Project. (PSS, undisputed fact 2.) Uptown hired Beach Front to oversee the Project. (Ibid.)

In March 2016, defendant Ply Gem Pacific Windows Corporation (Ply Gem) manufactured single color (white) vinyl 200 and 700 series windows using the mono extrusion method. (PSS, undisputed fact 12.) Customers had the option of paying extra for painting the windows into one of the available colors, including black. (Ibid.) Ply Gem started to use the co-extrusion method of manufacturing on its 200 and 700-series vinyl windows, where the co-extruded part is dyed a desired color during the manufacturing process, in 2019 and 2020 respectively. (PSS, fact 13 [not disputed on this point].)

Defendant Homer T. Hayward Lumber Company (Hayward) is a home-improvement/ construction retailer that, among other brands, sells Ply Gem windows. (PSS, undisputed fact 15.) In March 2016, Jeffrey visited Hayward’s showroom in Santa Barbara and spoke with Hayward’s outside sales representative, Joe Lizama, about purchasing windows for the Project. (PSS, undisputed facts 15-17.) Jeffrey asked Lizama for a quote for vinyl windows. (PSS, undisputed fact 18.) Lizama told Jeffrey that Hayward carried vinyl windows only from Milgard and Ply Gem. (PSS, undisputed fact 19.) Hayward prepared an estimate for the requested vinyl windows and doors painted in bronze. (PSS, fact 21 [undisputed on this point].) Subsequently, Jeffrey asked for a quote for the same windows painted black. (Ibid.)

While Jeffrey was at the Hayward showroom, Jeffrey became concerned about whether Ply Gem’s black-painted vinyl windows were suitable for the hot and cold climate in Paso Robles. (PSS, undisputed fact 23.) Jeffrey asked Lizama whether Ply Gem’s vinyl windows painted in black were suitable for a hot weather climate such as Paso Robles. (PSS, undisputed fact 24.) Jeffrey did not speak with any Ply Gem employee while at the showroom. (PSS, undisputed fact 25.) Lizama told Jeffrey that Lizama made a phone call to Ply Gem. (Jeffrey depo., at pp. 88-89.) Jeffrey did not hear the other side of Lizama’s telephone conversation. (Jeffrey depo., at p. 89; Defendant’s Separate Statement [DSS], fact 26.) According to Ply Gem, at no time before selling the windows to Jeffrey, Lizama did not call Ply Gem to confirm whether the windows were suitable for Paso Robles nor did Jeffrey ask Lizama to call Ply Gem. (Lizama depo., at pp. 52-53; DSS, fact 30.) According to plaintiffs, Jeffrey inquired of Lizama as to the suitability of the vinyl windows in a hot and cold climate like that in Paso Robles. (Jeffrey decl., ¶ 4.) Lizama told Jeffrey that the windows were of quality build and would be suitable, but that he would call up his Ply Gem representative and confirm. (Jeffrey decl., ¶ 5.) Lizama told Jeffrey that Ply Gem had told him that the windows were suitable and fit for installation in Paso Robles and that Ply Gem sold them in places including hot and cold climates like Arizona. (Jeffrey decl., ¶ 6.)

Jeffrey made the decision to purchase the Ply Gem 200 and 700 series vinyl mono-extrusion windows painted black from Hayward. (PSS, undisputed fact 31.)

On March 21, 2019, plaintiffs Beach Front and Uptown filed their complaint in this action asserting causes of action for: (1) breach of contract; and (2) products liability.

On July 12, 2019, Ply Gem filed its answer to the complaint, generally denying the allegations thereof and asserting 65 affirmative defenses. The eighth affirmative defense is the defense of “sophisticated user.”

On April 16, 2024, Ply Gem filed this motion for summary judgment or alternatively for summary adjudication. Ply Gem seeks summary adjudication on eight grounds: (1) the second cause of action for products liability, to the extent it is premised on an alleged design defect, fails because there is no evidence that a design defect caused plaintiffs’ injuries; (2) the second cause of action for products liability, to the extent it is premised on an alleged manufacturing defect, fails because there is no evidence that a manufacturing defect caused plaintiffs’ injuries; (3) Ply Gem’s affirmative defense of sophisticated user is a defense to the first and second causes of action to the extent they are premised on an alleged warning defect; (4) plaintiffs’ cause of action for negligence fails as a matter of law; (5) plaintiffs’ cause of action for negligent misrepresentation fails as a matter of law; (6) plaintiffs’ cause of action for breach of warranty fails because Ply Gem fulfilled all of its warranty obligations; (7) plaintiffs’ cause of action for breach of implied warranty of merchantability fails because the windows were of the same quality as those generally acceptable in the trade, fit for an ordinary purpose for which such goods are used, and conformed to the quality established by usage of trade; and (8) plaintiffs’ cause of action for breach of contract fails because there was no contract between Ply Gem and plaintiffs.

The motion is opposed by plaintiffs.

Analysis:

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“The 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.” (Code Civ. Proc., § 437c, subd. (c).)

“For purposes of motions for summary judgment and summary adjudication: [¶] … [¶] (2) A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant … has met that burden, the burden 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. 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.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[I]f a defendant moves for summary judgment against such a plaintiff, he 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.” (Id. at p. 851.)

“[A]ll that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X. Although he remains free to do so, the defendant need not himself conclusively negate any such element—for example, himself prove not X.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853–854, fn. omitted.) Alternatively, “[t]he defendant must show that the plaintiff does not possess needed evidence, because otherwise the plaintiff might be able to establish the elements of the cause of action; the defendant must also show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff must be allowed a reasonable opportunity to oppose the motion [citation].” (Id. at p. 854.) “Summary judgment law in this state, however, continues to require 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.” (Ibid., fn. omitted.)

Another fundamental principle of summary judgment law is “that the procedural rules required by statute must be strictly applied.” (California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1296.) “ ‘Both the court and the opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement.’ [Citation.] And if the separate statement does not contain all material facts on which the motion is based, the moving party has failed to meet its initial burden of production and is ‘not entitled to summary adjudication as a matter of law.’ [Citations.]” (Id. at p. 1297.)

(Note: In its notice of motion requesting summary adjudication, Ply Gem seeks to adjudicate “that there is no merit to the following causes of action and claims for damages in Plaintiffs Complaint ….” Summary adjudication of “claims for damages” is limited to claims for punitive damages. (Code Civ. Proc., § 437c, subd. (f)(1).) No adjudication is requested as to a claim for punitive damages, which, in any case, do not appear to be sought by the complaint.)

(1)       Product Liability

Plaintiffs assert three counts under their second cause of action for products liability: (i) strict liability; (ii) negligence; and (iii) breach of warranty. Each of these claims is addressed by the adjudications requested by Ply Gem.

            (A)       Strict Liability

“A manufacturer may be held strictly liable for placing a defective product on the market if the plaintiff’s injury results from a reasonably foreseeable use of the product. [Citations.] Products liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn.” (Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1231 (Saller).)

                        (i)        Defective Design

“Defective design may be established under two theories: (1) the consumer expectations test, which asks whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner; or (2) the risk/benefit test, which asks whether the benefits of the challenged design outweigh the risk of danger inherent in the design.” (Saller, supra, 187 Cal.App.4th at pp. 1231–1232.)

“If the consumer expectations test is not used, under the risk/benefit test, the plaintiff may establish the product is defective by showing that its design proximately caused his injury and the defendant then fails to establish that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design. [Citation.] In such case, the jury must evaluate the product’s design by considering the gravity of the danger posed by the design, the likelihood such danger would occur, the feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the consumer resulting from an alternative design. [Citation.] ‘In such cases, the jury must consider the manufacturer’s evidence of competing design consideration ...; and the issue of design defect cannot fairly be resolved by standardless reference to the “expectations” of an “ordinary consumer.” ’ [Citation.] Once the plaintiff has made a prima facie showing that his or her injury was caused by the product’s defective design, the burden shifts to the defendant to establish that, in light of the relevant factors, the product is not defective.” (Saller, supra, 187 Cal.App.4th at p. 1233.)

Ply Gem’s first requested adjudication is that there is no evidence that a design defect caused plaintiffs’ injuries and therefore the cause of action for strict products liability based on design defect fails. Ply Gem’s separate statement facts in support of this adjudication are: Ply Gem is a windows manufacturer; in March 2016, Ply Gem manufactured vinyl windows using the mono extrusion method; Ply Gem did not use the co-extrusion method of manufacture for these windows until 2019 and 2020; Jeffrey made the decision to purchase the mono-extrusion windows painted black; plaintiffs’ complaint claims they sustained damages due to the windows; and their discovery responses as to all facts supporting their contention that the windows were defectively designed. (DSS, at pp. 12-14, facts 11, 12, 13, 31, 32, 34.)

The requests and responses to the defective design discovery are:

Request for admission (RFA) No. 1: “Admit that the SUBJECT WINDOWS were not defectively designed.” (Defendant’s Exhibits, exhibits L, at p. 931 & N, at p. 955.)

Response to Form Interrogatory No. 17.1 as to RFA No. 1, following a general objection: “Deny. The subject windows do not perform to the minimum industry standards which Ply Gem claims the windows and extrusions conform (i.e[.,] AAMA, NAMI& ASTM). Per Ply Gem, the subject windows offered by Ply Gem with a black exterior cause heat to increase to a point that causes warping in such vinyl windows. Ply Gem’s own website states: ‘Black vinyl windows add a dramatic accent to any building or home. But this is one hot color trend that poses special challenges to windows: black (and other dark colors) absorb heat, which can cause warping in vinyl windows.’

“The Ply Gem Windows’ black vinyl window will solve the problem with a black capstock over a white co-extruded under layer, which reflects sunlight and limits heat gain. Builders and architects will soon have peace of mind when specifying black vinyl windows. The new exterior color will be available soon on all window operating styles.’

“The design of the subject windows failed to include, but what was feasible to include at and before the time of the purchase of the subject windows, a capstock over a white co-extruded under layer, which reflects sunlight and limits heat gain as stated on Ply Gems own website. Such defective design and manufacture caused warping, bowing, twisting and glass breakage in addition to damaging surrounding construction (stucco & drywall) at the property.” (Defendants’ Exhibits, exhibits M, at p. 939 & O, at p. 963.) The responses to these interrogatories are each dated June 17, 2022.

Ply Gem argues based upon the above discovery response: “Plaintiffs’ sole theory of liability based on design defect is that instead of what they purchased (black painted windows), they should have received windows manufactured in a different way, which was not available at the time Plaintiffs purchased the Subject Windows.” (Motion, at p. 15.) This argument fails to negate the element of design defect. As explained in Saller, supra, a design defect under the risk/benefit test is not based upon whether co-extrusion was available from Ply Gem at the time of purchase, but whether that alternative design (co-extrusion rather than paint) would have been a feasible, safer alternative under the relevant factors. Ply Gem presents facts only to show that they were not offering that alternative design at the time. No evidence is presented to show that the mono extrusion design was not defective under those factors.

Moreover, the discovery responses cited are not factually devoid, but instead explain, in general terms, the basic facts upon which plaintiffs make this claim. The response points to the specific fact that the alternative design is now available to show the alternative design was feasible. In any case, there is no showing either that plaintiffs now have no more specific information than provided in the 2022 response or that plaintiffs could not obtain more specific information.

Ply Gem has failed to meet its initial burden on its first requested adjudication. The first requested adjudication will therefore be denied.

                        (ii)       Manufacturing Defect

Ply Gem’s second requested adjudication is that there is no evidence that a manufacturing defect caused plaintiffs’ injuries and therefore the cause of action for strict products liability based on manufacturing defect fails.

“A product has a manufacturing defect if it differs from the manufacturer’s intended result or from other ostensibly identical units of the same product line. [Citation.] In other words, a product has a manufacturing defect if the product as manufactured does not conform to the manufacturer’s design. [Citation.] A manufacturing defect was a legal cause of injury only if the defect was a substantial factor in producing the injury.” (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 190 (Garrett).)

The claim based on a manufacturing defect is supported by essentially the same separate statement facts as the claim based on a design defect. (DSS, at pp. 14-16, facts 11, 12, 13, 31, 32, 35.) The only different fact is hardly different at all, but nonetheless is significant. Instead of plaintiffs’ discovery response to the request for admission and form interrogatory about facts supporting design defects, Ply Gem relies upon plaintiffs’ responses to the discovery response to the request for admission and form interrogatory about facts supporting manufacturing defects. (DSS, fact 35.) The text of the response to the form interrogatory is verbatim the same text as for the design defect as to the first two paragraphs. The final paragraph is slightly altered to address manufacturing defects:

“The manufacturing of the subject windows failed to include a capstock over a white coextruded under layer, which reflects sunlight and limits heat gain as stated on Ply Gems own website should have been included in the manufacturing process. Such defective manufacture caused warping, bowing, twisting, water intrusion and leaking, and glass breakage in addition to damaging surrounding construction (stucco & drywall) at the property.” (Defendants’ Exhibits, exhibits M, at p. 940 & O, at p. 964.)

As Garrett, supra, indicates, a claim based on a manufacturing defect is distinguished from a claim based on a design defect by the manufacturer’s intended design: a manufacturing defect exists where the product as manufactured is different from its intended design. A design defect, by contrast, exists where the product is manufactured according to its design, but its design, and not an imperfection in the manufacturing process, causes the harm.

While Ply Gem’s factual basis as to this requested adjudication could have been better stated directly, i.e., by providing direct evidence that that the windows purchased by plaintiffs were manufactured in conformance with their design, Ply Gem does provide evidence supporting the absence of a manufacturing defect. Specifically, Ply Gem provides the above discovery response by which plaintiffs identify the scope of their manufacturing defect claim as the failure to include a capstock over a white coextruded under layer. Ply Gem also provides evidence that Ply Gem did not use that process at the time of the manufacture of the windows purchased by plaintiffs. Because Ply Gem was not using that process at the time of manufacture, it is a reasonable inference that the windows were manufactured according to their design without a capstock over a white coextruded under layer. So, although plaintiffs may assert, as discussed above, that the intended design is defective, the evidence supports Ply Gem’s assertion that the windows were manufactured in conformance with the intended design and do not include a manufacturing defect. Ply Gem thus meets its initial burden on this requested adjudication by negating the essential element of a manufacturing defect.

Ply Gem’s separate statement facts in support of this requested adjudication are all not factually disputed. Plaintiffs’ additional facts do not demonstrate the existence of a triable issue on this fact, either. The additional facts which discuss a manufacturing defect are taken from the declaration of William Thomas: “This manufacturing defect exists primarily because, during the manufacturing process, Ply Gem painted the exterior of the windows black before the windows left Defendants’ control and possession.” (PSS [as corrected], additional fact 35, at p. 42.) This additional fact does not demonstrate a manufacturing defect, notwithstanding the label of “manufacturing defect,” because there is no evidence presented by plaintiffs that Ply Gem did not intend to manufacture the windows by painting the exterior of the windows black as part of Ply Gem’s window design. Put differently, this evidence generally supports plaintiffs’ claim that the windows were defectively designed but does not support the proposition that Ply Gem’s manufacturing process failed in manufacturing the windows according to that allegedly defective design.

Plaintiffs have failed to meet their burden to show the existence of a triable issue of fact as to this requested adjudication. The motion for summary adjudication will therefore be granted as to the manufacturing defect claim.

                        (iii)      Failure to Warn/ Sophisticated User Doctrine

Ply Gem’s third requested adjudication is based upon its eighth affirmative defense of the sophisticated user doctrine.

“The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is heavier than the burden to show one or more elements of the plaintiff’s cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff’s cause of action, or offering evidence such as vague or insufficient discovery responses that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case [citation], ‘the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense’ [citation]. The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied. Only if the defendant meets this burden does ‘the burden shift [ ] to plaintiff to show an issue of fact concerning at least one element of the defense.’ [Citation.]” (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289–290.)

“Generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products. [Citation.] The requirement’s purpose is to inform consumers about a product’s hazards and faults of which they are unaware, so that they can refrain from using the product altogether or evade the danger by careful use. [Citation.] Typically, under California law, we hold manufacturers strictly liable for injuries caused by their failure to warn of dangers that were known to the scientific community at the time they manufactured and distributed their product. [Citations.] [Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987 (Anderson)] made it clear that ‘[w]hatever may be reasonable from the point of view of the manufacturer, the user of the product must be given the option either to refrain from using the product at all or to use it in such a way as to minimize the degree of danger.’ [Citation.] Anderson explained that the rule of strict liability imposed on all manufacturers for their failure to warn of known or reasonably scientifically knowable risks was one that we had previously required of drug manufacturers. [Citations.] Conversely, when a sufficient warning is given, ‘the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.’ [Citation.] [¶] The sophisticated user defense exempts manufacturers from their typical obligation to provide product users with warnings about the products’ potential hazards. [Citation.] The defense is considered an exception to the manufacturer’s general duty to warn consumers, and therefore, in most jurisdictions, if successfully argued, acts as an affirmative defense to negate the manufacturer’s duty to warn.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64–65 (Johnson).)

“[T]he sophisticated user defense evolved out of the Restatement Second of Torts, section 388 (section 388) and the obvious danger rule, an accepted principle and defense in California. [Citations.] In addition, … the defense applies equally to strict liability and negligent failure to warn cases. The duty to warn is measured by what is generally known or should have been known to the class of sophisticated users, rather than by the individual plaintiff’s subjective knowledge.” (Johnson, supra, 43 Cal.4th at pp. 65–66.)

“A manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger. … [I]ndividuals who represent that they are trained or are members of a sophisticated group of users are saying to the world that they possess the level of knowledge and skill associated with that class. If they do not actually possess that knowledge and skill, that fact should not give rise to liability on the part of the manufacturer.” (Johnson, supra, 43 Cal.4th at p. 71.) “Under the ‘should have known’ standard there will be some users who were actually unaware of the dangers. However, the same could be said of the currently accepted obvious danger rule; obvious dangers are obvious to most, but are not obvious to absolutely everyone. The obvious danger rule is an objective test, and the courts do not inquire into the user’s subjective knowledge in such a case. In other words, even if a user was truly unaware of a product’s hazards, that fact is irrelevant if the danger was objectively obvious. [Citations.] Thus, under the sophisticated user defense, the inquiry focuses on whether the plaintiff knew, or should have known, of the particular risk of harm from the product giving rise to the injury.” (Ibid.)

In support of this adjudication, Ply Gem relies upon Jeffrey’s four decades of experience constructing and re-modeling buildings in California as a licensed contractor. (PSS, undisputed facts, 4-9.)

The case of Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522 (Buckner), as helpfully summarized in Moran v. Foster Wheeler Energy Corp. (2016) 246 Cal.App.4th 500 (Moran), is instructive.

“The issue in Buckner, supra, 222 Cal.App.4th 522, … was whether the trial court abused its discretion in granting a new trial based on the insufficiency of the evidence to prove the sophisticated user defense. The plaintiff was a maintenance worker who was injured when the bit on a power drill he was using bound in a piece of iron, causing the drill to counter rotate and twist his arm. [Citation.] He sued the manufacturer for negligence and strict liability, alleging the tool could not safely be used without a side handle, and that the manufacturer failed to adequately warn of that risk, either by placing a warning on the drill itself or in the operator's manual. [Citation.] The defendant contended, however, that the relevant risk was not that the drill could not be used safely without a side handle, but simply the general danger a drill bit might bind, causing the drill to counter rotate and twist the user’s arm.” (Moran, supra, 246 Cal.App.4th at p. 516.)

“The court of appeal reasoned that ‘[b]ecause the sophisticated user’s knowledge is essentially a substitute for a warning from the supplier of the product, in order for the defense to apply, the scope of knowledge of the sophisticated user must parallel the scope of the warning that would otherwise be required.’ [Citation.] Relying on decisions discussing the scope of warnings required of suppliers or manufacturers of dangerous products, the court ‘conclud[ed] the danger of which the sophisticated user must be aware in order to establish the defense is broader than that suggested by defendant. It is not enough that the user be aware of the danger that the drill may bind and counterrotate when it is used improperly or when the drill bit strikes an obstacle. In order to establish the defense, a manufacturer must demonstrate that sophisticated users of the product know what the risks are, including the degree of danger involved (i.e., the severity of the potential injury), and how to use the product to reduce or avoid the risks, to the extent that information is known to the manufacturer. Thus, in this case, defendant was required to prove sophisticated users know there is a danger the drill may bind and counter rotate, this may cause serious injury to the user, and the risk may be reduced or eliminated by proper use of a side handle.’ [Citation.]”

“The appellate court agreed with the trial court’s reasoning: ‘The trial court correctly determined the scope of knowledge a sophisticated user must have or be deemed to have in order for the defense to apply and the defendant to be excused from warning the user of the danger. The sophisticated user must know or be deemed to know not only the bare hazard posed by the product, but also the severity of the potential consequences, and any mitigation techniques of which the manufacturer is aware. All are necessary in order for the potential user to make an informed decision regarding whether and how to use the product. [¶] We conclude the trial court did not abuse its discretion by granting a new trial. Defendant has not demonstrated that no reasonable finder of fact could have found that plaintiff was not a sophisticated user of the drill. [Citation.]’ [Citation.]” (Moran, supra, 246 Cal.App.4th at p. 517.)

Here, like in Buckner, Ply Gem has not identified the relevant risk or that sophisticated users of the product know what that risk is. The closest that Ply Gem comes to this element is to say that Jeffrey “has extensive knowledge of how windows and window installation have changed over the course of 40 years.” (DSS, fact 10.) This separate statement fact is supported by the general testimony of Jeffrey that does not in any way discuss the risks inherent in windows used in hot or cold climates or demonstrate why someone with general window experience would reasonably have knowledge of the specific risks at issue here. (Jeffrey depo., at pp. 15-16.) Moreover, Jeffrey’s expressing concern about whether the black-painted windows were suitable for the hot and cold climate in Paso Robles (PSS, undisputed fact 23) supports the opposite proposition, namely, that someone in Jeffrey’s position had no reason to know the inherent risks so as to make an informed decision as to whether to use those windows. Ply Gem has failed to introduce sufficient evidence to show the elements of the sophisticated user defense and therefore has failed to meet its initial burden on summary adjudication, or, alternatively, there are conflicting inferences from Ply Gem’s evidence precluding summary adjudication (see Code Civ. Proc., § 437c, subd. (c)).

Accordingly, Ply Gem’s third requested adjudication as to the sophisticated user defense will be denied.

            (B)       Negligence and Negligent Misrepresentation

Ply Gem’s fourth requested adjudication is for the claim based on negligence. Ply Gem’s fifth requested adjudication is for the claim based on negligent misrepresentation. In response to discovery, plaintiffs identify the facts supporting the negligence claim as the asserted misrepresentations regarding the qualities of the Ply Gem windows. (PSS, undisputed fact 36.)

Regardless of whether Ply Gem has met its initial burden on summary adjudication as to the fourth cause of action, there are triable issues of fact that preclude summary adjudication. For example, in support of the fourth requested adjudication, Ply Gem includes separate statement fact 30: “Lizama denied that he called Ply Gem to ask them about the suitability of the windows in Paso Robles or that he represented to Jeffrey that the windows were suitable for Paso Robles.” (DSS, fact 30, at p. 22.) As quoted above in the background, Lizama testified at deposition that he did not call Ply Gem or make the alleged representation to Jeffrey. (Lizama depo., at pp. 53-54.) This fact is directly disputed by Jeffrey. “Mr. Lizama told me that the Ply Gem vinyl windows were of quality build and would be suitable, that Ply Gem offered the vinyl windows in various colors, including black, and that he had no prior issues with such vinyl windows but he would call up his Ply Gem representative and confirm.” (Jeffrey decl., ¶ 5.) “Mr. Lizama told me what Ply Gem had told him-that the windows were suitable and fit for installation in Paso Robles and that they sell them all over the place including in hot and cold climates and they sell a lot of such windows in Arizona.” (Jeffrey decl., ¶ 6.) Plaintiffs’ evidence is sufficient to dispute separate statement fact 30. (See also Jeffrey depo., at pp. 88-95, 222-223.)
 

“ ‘[T]he separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’ ” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009).) Ply Gem’s fourth requested adjudication will therefore be denied.

Ply Gem’s fifth requested adjudication is that the negligent misrepresentation cause of action fails as a matter of law. Separate statement fact 30 is also among the facts asserted in support of this adjudication. (DSS, at p. 27.) This adjudication will be denied for the same reasons discussed above.

(Note: Separate statement fact 30 appears in support of Ply Gem’s request for summary judgment, and requests for summary adjudication of issues four and five.

Plaintiffs’ response separate statement responds to this fact as denied where it appears in the list for summary judgment and issue four, but inexplicably responds to this fact as “admit” where it appears in the list for issue five. As the court notes above, based on the negligence plaintiffs assert in its negligence cause of action, plaintiffs’ negligence cause of action is functionally equivalent to the cause of action for negligent misrepresentation. This is consistent with plaintiffs’ opposition that discusses negligent misrepresentation but omits a separate discussion of negligence. (See Opposition, at pp. 10-13.) Treating both causes of action the same, the court deems the “admit” in response to separate statement fact 30 as to issue five as erroneous based on careless inattention to detail in responding to the separate statement, with the fact disputed as discussed above.)

(2)       Contract Claims

            (A)       Breach of Express Warranty

Ply Gem’s sixth requested adjudication is that plaintiffs’ cause of action for breach of express warranty fails because Ply Gem has fulfilled all of its warranty obligations. As Ply Gem correctly notes, a claim for breach of express warranty in the sale of goods is a claim under the California Uniform Commercial Code. (See Cal. U. Com. Code, §§ 2102, subd. (a), 2313.)

“The essential elements of a cause of action under the California Uniform Commercial Code for breach of an express warranty to repair defects are (1) an express warranty [citation] to repair defects given in connection with the sale of goods; (2) the existence of a defect covered by the warranty; (3) the buyer’s notice to the seller of such a defect within a reasonable time after its discovery [citation]; (4) the seller’s failure to repair the defect in compliance with the warranty; and (5) resulting damages [citations].” (Orichian v. BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1333–1334.)

Ply Gem asserts by this requested adjudication that plaintiffs cannot prove the fourth element of seller’s failure to repair the defect in compliance with the warranty because Ply Gem has offered to perform its warranty obligations. In support of this adjudication, Ply Gem includes the following undisputed separate statement facts:

“Ply Gem’s lifetime limited warranty states, ‘Ply Gem will provide, replace, or refinish, at its election, free of charge, including parts and labor (including labor in connection with the repair or removal of the original product or installation of the replacement product), any window or door determined to be defective under the terms of this warranty. In lieu of replacement, refinish, or repair, Ply Gem, at its sole discretion, reserves the right to refund the amount originally paid by the original property owner/consumer for the window or door, including reasonable costs (as determined by Ply Gem) for the original installation.’ ” (PSS, fact 14 [undisputed on this point].)

“The total cost of the original Ply Gem windows was $13,347.71.” (PSS, fact 32 [undisputed on this point].)

“In an email exchange dated May 25, 2017, Ply Gem Warranty Field Service Director Jeff Rambis offered Rick Jeffrey $75,000 and upgraded aluminum-clad replacement windows to refund the amount Plaintiffs paid for the original windows including the reasonable cost of the original installation. Rick Jeffrey declined the offer.” (DSS, undisputed fact 38.)

Separate statement fact 38 is supported by the deposition testimony of Jeffrey and the emails exchanged. In the deposition testimony cited by Ply Gem, Jeffrey testifies that an offer was made but also Jeffrey’s view that the $75,000 for labor was insufficient. (Jeffrey depo., at pp. 58-59.)

The May 25 email letter which contains the following text:

“Per the terms of the warranty, we are the following:

“1 – While the warranty provides that we repair or replace the affected product, Ply Gem Windows will provide replacement product in excess of the original product purchased as a one-time customer accommodation to the Uptown Center project. This replacement product will be metal clad vinyl and provided at no additional charge.

“2 – While the warranty provides that we either remove or reinstall applicable product, Ply Gem will agree to offer $75,000 for the removal of existing product which is consistent with the Beach Front Construction bid (even though we believe the quote to be excessive) (a copy of which is attached)

“In exchange for these customer accommodations which are in excess of the obligations contained in the warranty, we would expect to receive a release from the owner.” (Defendant’s Exhibits, exhibit F, at p. 460.) (Note: Defendant’s separate statement erroneously identifies exhibit F as “Exh. E.”)

Taking this requested adjudication on its face, i.e., addressing the element of the seller’s failure to repair the defect in compliance with the warranty, Ply Gem fails to meet its initial burden to present evidence sufficient to negate that element. The warranty requires Ply Gem either to replace the windows or to refund the amounts paid. The evidence presented by Ply Gem is that it did neither of these things, but instead made an offer that was rejected. Plaintiffs do not have either the replacement windows or the money (having rejected the offer) and therefore the evidence presented by Ply Gem is not sufficient to show Ply Gem’s actual performance, i.e., the absence of breach under the contract.

Instead, Ply Gem appears to argue a different point, namely, that its offer of performance is sufficient to excuse further performance, an excuse for performance typically referred to as “tender.” Under general contract principles, “[a]n obligation is extinguished by an offer of performance, made in conformity to the rules herein prescribed, and with intent to extinguish the obligation.” (Civ. Code, § 1485.) Tender is an affirmative defense. (See Haile v. Smith (1896) 113 Cal. 656, 662-663; Heine v. Treadwell (1887) 72 Cal. 217, 220.) Under UCC principles, “[t]ender of delivery requires that the seller put and hold conforming goods at the buyer’s disposition and give the buyer any notification reasonably necessary to enable him to take delivery.” (Cal. U. Com. Code, § 2503, subd. (1).) The mere offer to provide goods, as the evidence provided here only shows, is not sufficient. Moreover, under general contract principles, an “offer of performance must be free from any conditions which the creditor is not bound, on his part, to perform.” (Civ. Code, § 1494.) The evidence presented is that the offer was conditioned upon the giving of a release. Because plaintiffs assert claims beyond the express warranty claims, there is at least conflicting inferences that the release demanded exceeded plaintiffs’ obligations to accept under the express warranty.

So, either Ply Gem has failed in its initial burden on summary adjudication or there are conflicting inferences giving rise to triable issues of fact. Accordingly, the sixth requested adjudication will be denied.

            (B)       Breach of Implied Warranties

Ply Gem’s seventh requested adjudication is that the claim for breach of the implied warranty of merchantability fails because the windows were of the same quality as those generally accepted in the trade, fit for an ordinary purpose for which goods are used, and conformed to the quality established by usage of trade.

“Goods to be merchantable must be at least such as [¶] (a) Pass without objection in the trade under the contract description; and [¶] … [¶] (c)        Are fit for the ordinary purposes for which such goods are used ….” (Cal. U. Com. Code, § 2314, subd. (2)(a), (c).)

In support of this requested adjudication, Ply Gem relies upon the following separate statement facts:

Beach Front is a general building contractor; Jeffery and his wife are owners of Beach Front and Uptown; Jeffrey acquired knowledge about windows and windows installation as a contractor; Ply Gem is a windows manufacturer; in March 2016,  Ply Gem manufactured vinyl windows using the mono extrusion method; Ply Gem did not use the co-extrusion method of manufacture for these windows until 2019 and 2020; Ply Gem’s express warranty is as quoted above; Hayward is a retailer that sells Ply Gem windows; Jeffrey purchased the windows from Hayward; Jeffrey did not read Ply Gem brochures, or research Ply Gem’s website, before purchasing the windows; Jeffrey made the decision to purchase the mono-extrusion windows painted black; plaintiffs’ complaint claims they sustained damages due to the windows; and their discovery responses as to all facts supporting their contention that the windows were defectively designed; plaintiffs’ discovery responses as to facts supporting their claims of defective design, defective manufacture, and negligence are as quoted or described above; the total cost of the windows was $13,347.71; and Ply Gem made the unaccepted offer discussed above. (DSS, at pp. 29-36, facts 1, 3, 6-8, 11-15, 27-29, 31, 32, 34-38.)

None of these separate statement facts state directly, or imply indirectly, that the windows sold to plaintiffs are of even minimal quality. On that basis, Ply Gem has failed to meet its initial burden on summary adjudication.

Moreover, the discovery responses cited in support of this adjudication which address the issue of product defects each begin by stating “The subject windows do not perform to the minimum industry standards which Ply Gem claims the windows and extrusions conform (i.e. AAMA, NAMI& ASTM).” (DSS, facts 34, 35.) In opposition to the motion, plaintiffs repeat this statement as additional facts 34 and 35, supported by their expert’s declaration. (Thomas decl., ¶¶ 21-24.) Conflicting inferences from Ply Gem’s own evidence, together with or separate from plaintiffs’ evidence, is sufficient to demonstrate the existence of a triable issue of fact as to whether the window meet the UCC definition of merchantable.

Accordingly, Ply Gem’s seventh requested adjudication will be denied.

            (C)       Breach of Contract

Ply Gem’s eighth requested adjudication is that plaintiffs’ cause of action for breach of contract fails because there was no contract between Ply Gem and plaintiffs. In support of this requested adjudication, Ply Gem presents the following separate statement facts:

Beach Front is a general building contractor; Jeffery and his wife are owners of Beach Front and Uptown; Jeffrey acquired knowledge about windows and windows installation as a contractor; Ply Gem is a windows manufacturer; Hayward is a retailer that sells Ply Gem windows; Jeffrey purchased the windows from Hayward and not from Ply Gem; Jeffrey made the decision to purchase the mono-extrusion windows painted black; plaintiffs’ complaint claims they sustained damages due to the windows, in which plaintiffs allege that they had a written contract with Ply Gem attached as exhibit A to the complaint that is a quote from Hayward. (DSS, at pp. 36-38, facts 1, 3 [4], 11, 15, 27, 31, 32, 34-38.) (Note: Separate statement fact 3 is erroneously identified by Ply Gem in the eighth requested adjudication as fact 4.)

As set forth in the separate statement facts, the contract alleged in the complaint is a quote from Hayward. From this Ply Gem argues that the contract, if valid, would be between plaintiffs and Hayward only. (Note: In making this argument, Ply Gem also cites to separate statement fact 25, a fact which is not included in the separate statement facts identified in support of the eighth requested adjudication. The court reaches the same conclusion herein whether or not separate statement fact 25 is also considered in support of this requested adjudication.) The contract alleged—and used as evidence by Ply Gem to support its requested adjudication—is ambiguous in a number of respects.

The most significant aspect of its ambiguity as it relates to the issue presented in this requested adjudication is that there is no express statement of the parties to the contract. The only entity that is clearly stated is Hayward, the contact information for which is set forth at the top of page one. (E.g., Defendants’ Exhibits, exhibit E, at p. 449.) Each of the pages of the contract have at the bottom, “[logo] Ply Gem Windows Group” and under that the website for Ply Gem. Line item 8-1 is described as “Ply Gem Jobsite Delivery.” (Id. at pp. 449-454.) In the description on each of the last two pages under “Comment” there are included “Ply Gem to deliver direct to jobsite.” (Id. at pp. 453, 454.) Plaintiffs are not obviously identified. On the fifth page under “Project” is “Beachfront Construction” and under “Quote” is “2328 Spring Street.” (Id. at p. 453.) But on the last page under “Project” is “Paso Project Bronze Building” and under “Quote” is “Beachfront Construction.” (Id. at p. 454.) On both of the last two pages there is an undecipherable signature under “Customer Signature” and a date. (Id. at pp. 453, 454.)

Regardless of whether Ply Gem meets its initial burden on summary adjudication for this requested adjudication, Ply Gem’s own evidence provides inferences that Ply Gem is a party to the contract, including particularly its name and logo appearing on the document and the contractual term requiring delivery of the goods by Ply Gem directly to the jobsite (which would be more obviously an obligation of Ply Gem rather than Hayward). These conflicting inferences are sufficient to raise triable issues of fact as to the parties to the agreement and thus to preclude summary adjudication of this issue. (See Code Civ. Proc., § 437c, subd. (c).)

Accordingly, the court will deny this requested adjudication.

Because the court does not grant summary adjudication as to all causes of action against Ply Gem, the motion for summary judgment is also denied.

(3)       Procedural Matters

            (A)       Requests for Judicial Notice

In support of its motion, Ply Gem requests that the court take judicial notice of: (1) plaintiffs’ complaint in this action (Defendant’s Exhibits, exhibit G); and (2) Ply Gem’s answer to plaintiffs’ complaint in this action (Defendant’s Exhibits, exhibit H). The court grants these requests for judicial notice as court records. (See Evid. Code, § 452, subd. (d)(1).) Judicial notice does not extend to the truth of matters set forth in such documents. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569.)

            (B)       Evidentiary Objections

In reply, Ply Gem asserts several evidentiary objections. One issue is the timing of the filing of late, revised, and corrected versions of documents. This hearing is noticed for Friday, July 19. Opposition papers were to be filed and served 14 days before July 19, i.e., on July 5. (See Code Civ. Proc., § 437c, subd. (b)(2).) On Friday, July 5, plaintiffs filed and served their original opposition, separate statement, and declaration of William Thomas. As discussed below, the original separate statement contains significant formatting issues; the original declaration of William Thomas has a typed signature.

On Monday, July 8, plaintiffs filed the declaration of Rick Jeffrey. The proof of service of the declaration of Rick Jeffrey shows electronic service on July 5. Plaintiffs also filed a revised opposition memorandum on July 8, this document containing electronic bookmarks omitted from the original. The proof of service shows electronic service of this revised opposition on July 8. Also on July 8 plaintiffs filed and served a notice of errata of plaintiffs’ response separate statement. The preface to this separate statement notes that the revised version attempts to fix numerous formatting errors. Plaintiffs also filed and served a corrected version of the declaration of Frank P. Cuykendall, which bears the notation that this version is “corrected after rejection with POS at end.”

On Wednesday, July 10, plaintiffs filed and served the amended declaration of William Thomas and a further declaration of Frank P. Cuykendall. This Cuykendall declaration states that the amended declaration was corrected to include the statement of personal knowledge that was omitted from the original and to which Thomas attached his signature, but is otherwise unchanged from Thomas’s original declaration filed and served on July 5.

On Friday, July 12, Ply Gem filed its reply and objection to plaintiffs’ evidence.

The court notes that all of the revised, amended, and corrected documents do not make any substantive changes to the arguments or facts asserted. Ply Gem asserts that consideration of these documents would violate Ply Gem’s due process rights because Ply Gem did not have the statutory time to respond, but Ply Gem fails to explain how its response would be any different where the same substantive information was timely provided, albeit poorly formatted. The court will consider the documents as filed. (See Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202 [not unreasonable to consider late documents absent showing of prejudice]; Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1215 [abuse of discretion to grant motion based upon curable procedural error].) Ply Gem’s objection IV is overruled.

With respect to the Thomas declaration, Ply Gem objects that Thomas’s expert opinion is unreliable and inadmissible essentially because it fails to provide identified particulars. However, expert declarations opposing a motion for summary judgment do not need to be as detailed as declarations supporting such a motion. “In these circumstances, the expert’s declaration is to be liberally construed. [Citation.] We must resolve ‘any doubts as to the propriety of granting the motion in favor of the plaintiff. [Citation.]’ [Citation.] The requisite of a detailed, reasoned explanation for expert opinions applies to ‘expert declarations in support of summary judgment,’ not to expert declarations in opposition to summary judgment. [Citation.] This is because a defendant moving for summary judgment bears the heavy ‘“burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” [Citation.]’ [Citation.] On the other hand, a plaintiff opposing a motion for summary judgment need only raise a triable issue of fact.” (Jennifer C. v. Los Angeles Unified School District (2008) 168 Cal.App.4th 1320, 1332-1333.) Ply Gem’s objection I is overruled.

Ply Gem’s objection II to the Thomas declaration is that the signature on the July 5 declaration is not an electronic signature under California Rules of Court, rule 2.257. The amended declaration contains an electronic signature. Objection II is overruled.

Ply Gem’s paragraph specific objections to the Thomas declaration numbers 13 through 21 are overruled. Regardless, as explained above, the Thomas declaration is itself unnecessary to the resolution of this motion. The court declines to rule on the remaining objections for that reason. (See Code Civ. Proc., § 437c, subd. (q).)

Ply Gem’s objection III is to the Jeffrey declaration on the grounds that the signature is not electronic and is suspect. On its face, the Jeffrey declaration is signed by Jeffrey under penalty of perjury. The objection is overruled. Regardless, the court notes that the Jeffrey declaration is a direct statement of Jeffrey’s deposition testimony (proffered by Ply Gem) and is unnecessary to the resolution of this motion.

The court declines to rule on the remainder of the evidentiary objections as unnecessary to the disposition of this ruling.

            (C)       Format Problems

In order to resolve this motion expediently, as explained above, the court has overlooked violations of the California Rules of Court that have caused substantial and unnecessary work to review the papers filed by the parties.

Ply Gem’s evidence is presented principally in its index of exhibits. This document is 1057 pages long, and contains 20 exhibits (A through T). The document does not contain electronic bookmarks as required by California Rules of Court, rule 3.1110(f)(4) (“Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.”). The absence of such bookmarks leaves the court having to search through more than 1000 pages to find the evidence cited.

The index of exhibits also is not consecutively numbered as required by rule 3.1110(c) (“Documents must be consecutively paginated. The page numbering must begin with the first page and use only Arabic numerals (e.g., 1, 2, 3). The page number may be suppressed and need not appear on the first page.”) Page numbers of exhibits are not cited in the memorandum in support or in the separate statement other than deposition transcripts in violation of rule 3.113(k) (“All references to exhibits or declarations in supporting or opposing papers must reference the number or letter of the exhibit, the specific page, and, if applicable, the paragraph or line number.”). (E.g., DSS, fact 36 [“Exh. Q: Defendant’s Special Interrogatories Set One (‘SROG’) to Beach Front, Interrogatory No. 11”].) Again, this forces the court to have to search through over 1000 pages to find specific text referenced in the moving papers.

The opposition papers when filed contained serious formatting problems. Many of these have been corrected in amended and corrected subsequent filings. The court notes nonetheless that opposition declarations are presented only as plain text and do not comply with general formatting requirements. (E.g., Cal. Rules of Court, rules 2.100(B) [applicability of formatting rules], 2.108 [spacing and line numbering], 2.109 [consecutive page numbers], 2.110 [footers].) Again, the failure to provide correct formatting has significantly increased the court’s work in reviewing these papers.

The absence of consecutive page numbers makes it difficult both to find and to cite evidence by page numbers. For purposes of this ruling, the court cites to the internal page numbers of deposition transcripts and to the pdf page number within the index of exhibits for all other documents.

The court reminds counsel of their obligation to follow all of the applicable Rules of Court, including those relating to formatting. (See Cal. Rules of Court, rule 2.30(b).)