ORDER GRANTING THIRD PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

DEAN D. PREGERSON, District Judge.

Presently before the court is Third Party Defendant Piexon AG ("Piexon")'s Motion for Summary Judgment.1 Having considered the submissions of the parties and heard oral argument, the court grants the motion and adopts the following Order.

I. Background2

In 2012, City of Beaumont Officer Enoch Clark ("Clark") effected a traffic stop of Monique Hernandez. In the course of the ensuing interaction between Clark and Hernandez, Clark shot Hernandez with a JPX Jet Protector pepper spray gun ("the JPX") from a distance of less than one foot, in violation of the JPX device's five-foot minimum safety distance. The parties dispute whether Clark shot Hernandez in the face or in the side of the head. Hernandez was rendered permanently blind as a result of Clark's use of the JPX device.

The Beaumont Police Department ("BPD") determined that Clark's use of the JPX was an unreasonable and excessive use of force. (SOF 7-8.) As a result, Clark was fired from the BPD. (SOF 9.) Following a criminal investigation, Clark was indicted for felony assault by a public officer, assault with a stun gun/Taser, use of force to inflict injury, and assault with a deadly weapon. (SOF 10.)

Hernandez and her family filed suit in this court against Third Party Plaintiff the City of Beaumont ("the City"), Clark, and other BPD officers. (SOF 13.) The City filed a third-party complaint against Piexon, the designer and manufacturer of the JPX, alleging causes of action for negligence, misrepresentation, strict liability, failure to warn, breach of warranties, indemnification, contribution, apportionment, and declaratory relief. The City's complaint also names as defendants the distributor of the JPX, Defendant IBS Sigma, Inc., as well as IBS Sigma agent and sales manager Defendant Bart Bacolini. Bacolini sold the JPX to the City and provided written training materials and live instruction to the City's police department. (City Complaint, ¶ 33.)

Hernandez, Clark, the City, and other police officer defendants entered into a good faith settlement of Hernandez's case for $18.5 million. (Dkt. 100; SOF 14.) The City proceeded with its claims against Third Party Defendants Piexon, IBS Sigma, and Bacolini.3 Piexon now moves for Summary Judgment.

II. Legal Standard

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 323.

Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. Summary judgment is warranted if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. There is no genuine issue of fact "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

It is not the court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir.1996). Counsel has an obligation to lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). The court "need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found." Id.

III. Discussion

A. Warning Claims

1. Causation

Claims for both strict liability failure to warn and negligent failure to warn require a plaintiff to show that the defendant's failure to warn was a "substantial factor" in causing the plaintiff's injury. See, e.g., Mariscal v. Graco, 52 F.Supp.3d 973, 988, 991 (N.D. Cal. 2014). "A product defect claim based on insufficient warnings cannot survive summary judgment if stronger warnings would not have altered the conduct" that led to the injury. Motus v. Pfizer Inc. (Roerig Div.), 358 F.3d 659, 661 (9th Cir. 2004). "Generally, when a warning is given, but the person to whom the warning is directed does not read the warning, there is no causation." Altman v. HO Sports Co., Inc., 821 F.Supp.2d 1178 (E.D. Cal. 2011); See also Ramirez v. Plough, Inc. 6 Cal.4th 539, 555 (1993) (finding "no conceivable causal connection" between warning and injury where consumer failed to read product label).

a. Clark's Misuse of the JPX

Piexon argues that its warnings were not a substantial factor in causing Hernandez's injuries because Clark not only knowingly disregarded the warnings, but would have disregarded any warnings regardless of their content. Piexon contends that there is no evidence that Clark read, let alone heeded, Piexon's warnings. Indeed, the City does not dispute that Beaumont Police Officer Matthew Gepford, who trained Clark in the use of the JPX, never gave Clark the JPX safety manual or told Clark where to find the manual. (SOF 56; Declaration of John W. Tait Exs. L, P at 127.) Thus, Piexon argues, regardless of the adequacy of the warnings provided, those warnings could not have been a substantial factor in Clark's use of the JPX.

Piexon also cites to statements Clark made during the course of two separate interviews. One of the interviews, conducted by private investigator Chuck Thomas on April 17, 2012, occurred as part of the BPD's administrative investigation. (Declaration of John Tait, Ex. E at 2975-76.) Clark was informed that his failure to cooperate with the investigation could result in disciplinary actions, including termination. (Id.)

The other interview was conducted by the Riverside Sheriff's Department Special Investigations Bureau, and took place on February 29, 2012, nearly two months before the administrative investigation interview. (Tait Decl., Ex. D at 2607.) Investigators prefaced the interview by stating to Clark, "[W]e are criminal investigations' investigators from the Sheriff's Deparment. . . . [W]e are not on the Administrative side. [I]f you feel like you're compelled to talk to us, you're not. This is strictly a voluntary statement." (Id.)

The City objects to the use of Clark's interview statements and contends that they are inadmissible. To the extent the City raises a hearsay objection, the basis for that objection is unclear to the court, and the objection is overruled. The City also appears to take the position that the statements are barred by the Public Safety Officers Procedural Bill of Rights Act ("POBRA"), California Government Code § 3300, et seq. POBRA applies "[w]hen any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action. Cal. Gov't Code § 3303. No statement made in the course of such an interrogation "shall be admissible in any subsequent civil proceeding," subject to certain exceptions not relevant here. Cal. Gov't Code § 3303(f). This bar applies to the administrative investigation conducted by Chuck Thomas.

POBRA does not apply, however "to an investigation concerned solely and directly with alleged criminal activities." Cal. Gov't Code § 3303(I); Van Winkle v. County of Ventura, 158 Cal.App.4th 492, 497 (2007). County investigators made clear to Clark that they were not present in administrative capacity, that they were conducting a criminal investigation, and that Clark was under no obligation to participate. Clark's statements during the February 29, 2012 interview are, therefore, admissible.

During the criminal investigation interview, Clark stated that when he used his JPX device on Hernandez, he believed she was trying to get to a weapon, and that the situation was going to escalate "a lot worse to where we may have to use lethal force." (Tait Decl., Ex. D at 2624, 2626.) Clark further stated that he was terrified, believed that he or his partner would be hurt, and "wasn't thinking about how far away I should be. How close I should be. I was thinking about being injured. I was thinking about my partner being injured or us both . . . losing our lives." (Id. at 2650, 2665.) Clark repeatedly reiterated that "I wasn't thinking about distance or anything like that. I was thinking — or I was concerned about my life . . . ." (Id. at 2677.) Clark also admitted that "per the manufacturer" of JPX, there were "requirements or restrictions as to how close or far you should be when you deploy it" of five feet. (Id. at 2650.)

Thus, Piexon contends, there is no dispute that it was Clark's decision to misuse the JPX, rather than any inadequate warning, that caused the injury to Hernandez and, by extension, the City. Piexon argues that no matter what the warnings stated or how forcefully the information was conveyed, Clark would not have read them, and even if he had, would have ignored them because he "wasn't thinking about how far away [he] should be." Clark's fear of being injured and fear for his life, Piexon suggests, trumped any concern he had, or might have had, about misusing a JPX device.

Although the City does not respond to the merits of this argument directly, Clark's statements alone do not warrant a grant of summary judgment in Piexon's favor. First, even crediting Clark's statements as true, the evidence does not conclusively establish that Clark would have ignored any possible warning or training he received. Portions of his interview suggest that, despite his fears, he used the JPX device on Herndandez because he did not want the situation to escalate into one requiring the use of lethal force. He made that decision based on the warnings and training he had received. Had he received different training or, for example, a warning that JPX was highly likely to cause permanent blindness if deployed at a distance of less than one foot, it is unclear whether Clark would have made the same decision to deploy his JPX device, even in the heat of the moment.

Further, and perhaps more fundamentally, Clark's credibility is very much in doubt. Given Clark's incentives to lie to avoid criminal prosecution, Plaintiff could call into question the veracity of the statements Clark made to Riverside Sheriff's Department special investigators. Indeed, the fact that Clark was subsequently prosecuted on multiple felony charges suggests that those investigators found him either not credible or unreasonable. Clark's statements, therefore, do not establish beyond dispute that Piexon's warnings, such as they were, were not a substantial factor in Hernandez's injury.

b. Informed Purchaser

The City's opposition to Piexon's motion focuses on a different argument. The City asserts that because the warnings conveyed to Bacolini and the City were inadequate, Piexon "failed to provide the City with enough information to make an informed buying decision when it purchased the JPX . . . and failed to provide proper training for its use." (Opposition at 4:14-16.) A manufacturer's liability to an end consumer may be extinguished if the manufacturer has given adequate warnings to an intervening party. Groll v. Shell Oil Co., 148 Cal.App.3d 444, 448-49 (1983).4 The City suggests that the reverse is true, and that Piexon must be held liable if its warnings were inadequate. Although not framed as such, the City appears to make a "but for" argument that "the City could have made different decisions about purchasing or training had the information about the catastrophic injury potential of the JPX been properly conveyed by Pixeon." (Opp. at 5:24-25.) In other words, the City might never have placed the JPX in Clark's hands in the first place if it had been adequately warned.

The City's informed purchaser theory is potentially viable. The California Supreme Court has observed that the substantial factor standard "subsumes the `but for' test while reaching beyond it to satisfactorily address other situations . . . ." Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953, 969 (1997). The court further explained that "[u]ndue emphasis should not be placed on the term "substantial[,]" as the substantial factor test was "formulated to aid plaintiffs as a broader rule of causality than the `but for' test," and is misused by defendants whose conduct is clearly a "but for" cause of injury. Id.

Piexon counters that the City's informed buyer argument also fails because there is no evidence that the Beaumont Police Department did not receive adequate information, or that any further information would have affected the City's decision to acquire JPX devices. Piexon asserts that IBS Sigma provided instruction and safety manuals to the BPD. (SOF 18; Tait Decl. Ex. G.) It is unclear whether the City disputes this fact, as the City claims that it cannot locate Exhibit G to the Tait Declaration (SGD 17) and appears to dispute that Piexon gave training materials to IBS (SGD 23), yet frequently refers to Piexon training materials provided to the City. Officer Gepford, furthermore, testified that a copy of the JPX safety manual was stored in a filing cabinet inside a sergeant's office. (Tait Decl., Ex. L.)

The City cites primarily to the opinion of its police practices expert, Steve Ijames ("Ijames"), as evidence that the BPD received inadequate information that may have affected the City's purchasing decision. (Opp. at 4.) Ijames testified that, although the City should have done its own investigation and "due diligence," police department purchasers of "less-lethal" products such as JPX also "have to heavily rely on the manufacturers or representatives because in theory they would have the most in-depth information about their product." (Declaration of Matthew T. Racine, Ex. 1 at 46.) Ijames also criticized some of the training provided to BPD officers. Ijames reviewed a PowerPoint presentation given to BPD officers and found it "significantly lacking in a key area . . . that specifically validates learning and reinforcement of understanding distance . . . . [T]hat type of issue[] cannot be reduced down to a comment in a presentation." (Id. at 49.)

Notably, however, Ijames did not review all of the warning information in the BPD's possession. The City does not cite, nor has the court found, any analysis of training or safety materials other than the PowerPoint presentation. It is not clear from the evidence presented which presentation Ijames reviewed. Piexon claims, and the City does not appear to dispute, that some BPD officers, including Gepford, received a Piexon presentation titled "Law Enforcement Instructor Training Course." (Tait Decl. Ex. I.; SOF 45) Ijames appears to have reviewed a separate Piexon "Law Enforcement User Training Course," attached to the Declaration of John Tait at Exhibit J, that Gepford presented to Clark and other BPD officers. It is clear from Ijames testimony, however, that his analysis was "limited by the four corners of the slides presented. I don't know what sidebar conversations an instructor would have to students[.]" (Tait Reply Decl., Ex. Z at 49.) Piexon further represents that Ijames stated, "Clearly, when you look at the PowerPoint it's bullet points, and there's certainly more provided because it would be a 5-minute class if all he did was just click through the screens," although the page Piexon cites is not included in the record. (Piexon Reply SOF 65.) Indeed, the training class Gepford led, and which Clark attended, lasted approximately five hours. (SOF 53.)

The only other argument the City advances in support of its informed purchaser theory is that Piexon's warnings "are confusing because they suggest that short range JPX Jet Protector deployment at the secondary targets [`chest, neck, and side of head'] can safely be accomplished [and] Bacolini . . . was taught . . . and then conveyed . . . to City of Beaumont personnel that they could shoot at secondary targets from under five feet." (Opp. at 5:27-6:5.) The evidence the City cites, however, does not support this argument. There is no dispute that both PowerPoint presentations identified the upper chest and neck area and the side of the head as secondary targets. Neither target area slide, however, makes any suggestion that secondary targets can safely be engaged at distances under five feet. (Tait Decl., Exs. I, J.) Nor does the testimony of Piexon's expert, Patricia Robinson, support the City's claim. Robinson simply agreed that the instructor PowerPoint Bacolini used to instruct BPD officers identified secondary target areas including the chest, neck, and side of head. (Racine Decl., Ex. 2 at 61.) Robinson did not opine, or identify any information suggesting, that Piexon's materials advised that it was safe to engage a secondary target within five feet. (Id.)

Bacolini did testify that he discussed with someone named Zac the appropriateness of shooting a subject in the chest at a distance under five feet.5 (Racine Decl., Ex. 3 at 110.) Bacolini further explained that if a subject was "closer than five feet or 1.5 meters you would drop the target from the face to the high chest . . . . [A]s soon as you were comfortable with a five foot distance between the muzzle and the target face area you would hit the primary area by discharging the second shot." (Id. at 111.) There is no evidence that Bacolini ever instructed or believed that it would be safe to shoot someone in the side of the head from a distance under five feet.6 Even if Bacolini's reference to secondary targets could be interpreted to include the side of the head, despite his emphasis on the chest area, it is unclear how that representation is attributable to Piexon. Bacolini testified that his belief that JPX could be used under some circumstances within 1.5 meters was his personal opinion, that he made clear in his classes, when the subject arose, that it was his personal opinion, and that nothing about that opinion "came from Piexon." (Tait Reply Decl., Ex. W at 207.) No trier of fact could conclude on this record that Piexon's warnings confusingly suggested that it was safe to shoot someone in the head with a JPX at a distance of less than five feet.

Furthermore, the City does not cite any evidence regarding BPD's decision to purchase JPX, including any evidence supporting the centerpiece of the City's theory — that BPD would not have purchased JPX if it had known more information. Instead, as discussed above, the City points only to Ijames' opinion that the PowerPoint slides were insufficient to warn of the dangers. But as Ijames himself acknowledged, his review was limited only to the PowerPoint slides themselves. While those slides alone may have been insufficient to adequately warn BPD, Ijames recognized that other information must have been presented during the 5 hour user training course, not to mention the separate instructor training that Gepford received or the written materials that the BPD possessed. Other than the unsupported argument regarding secondary targets, discussed above, the City has not presented any evidence that these materials were inadequate. The City has not shown, therefore, that Piexon did not provide it with sufficient information to make an informed purchasing decision or, therefore, that Piexon's warnings were a substantial factor in the BPD's decision to put a JPX in Clark's hand in the first place.

c. Sophisticated Intermediary Defenses

i. Sophisticated Intermediaries7

A manufacturer or supplier may be able to establish a defense to failure to warn claims if it can show "not only that it warned or sold to a knowledgeable intermediary, but also that it actually and reasonably relied on the intermediary to convey warnings to end users." Webb v. Special Elec. Co., Inc., 63 Cal.4th 167, 189 (2016). An intermediary is sufficiently sophisticated to establish the defense it the buyer "was so knowledgeable about the material supplied that it knew or should have known about the particular danger." Id. at 188. Sophisticated intermediary defenses typically will raise jury questions, "unless critical facts establishing reasonableness are undisputed." Id. at 190.

Piexon argues that IBS Sigma, Bacolini, and the BPD are all sophisticated intermediaries, and that it reasonably relied upon all of them to warn others downstream. There is no dispute that Bacolini was a certified "master instructor," that he was shown both of the PowerPoint presentations, as well as training videos and training manuals, and had practical experience firing the JPX. Nor is there any dispute that Piexon policies "specifically emphasiz[ed] over and over the 1.5 meter 5 feet [minimum range]" and that Bacolini was instructed that "you had to be careful with soft tissue especially the eyes if you were inside the safe distance." (SOF 38, 40, 41, 42; Tait Decl., Ex. O at 106, 113.) The City's only dispute is that the evidence does not show that Piexon provided this training to IBS Sigma and Bacolini. (E.g., SGU 23.) The PowerPoints and written materials referenced throughout Bacolini's testimony and both parties' arguments, however, all bear Piexon's logo on every page or slide.

The City's entire argument in opposition to Piexon's sophisticated intermediary defense spans only a few sentences, and is premised on the assertion that "Bacolini believed — because he was so trained by Piexon — that the side of the head was a legitimate target under 5 feet. Bacolini informed City[] officers of this truth. So, even if Bacolini and the City are sophisticated users in other contexts, they were negligently (or intentionally misled) . . . ." (Opp. at 7.) The City cites no evidentiary support for this contention. Furthermore, as discussed above in the context of the City's informed purchaser argument, the City's factual assertion has no basis in the record. Neither Piexon's training materials nor Bacolini's presentation of those materials stated a "truth" that the JPX could safely be deployed against the side of a person's head from a distance of less than five feet.

Thus, no trier of fact could conclude that IBS Sigma, the BPD, or, at the very least, Bacolini, was not a sophisticated intermediary. Nor is there a dispute that BPD contracted with IBS Sigma and Bacolini to provide training to Gepford, who then conducted a training of his own. The City does not dispute, let alone refute, Piexon's argument that it reasonably relied upon these intermediaries to pass along warnings to end users. Piexon has, therefore, established a sophisticated intermediary defense.

To summarize, the City has failed to present evidence that the warnings it received were insufficient to allow the City to make an informed purchasing decision, or that any further information would have affected its decision to acquire the JPX and issue it to Officer Clark. Piexon's warnings were not, therefore, a substantial factor in the harm to Hernandez. Furthermore, Piexon has adequately established that it reasonably relied upon sophisticated intermediaries to forward its warnings and advisories to the City. Accordingly, Piexon is entitled to summary judgment on the failure to warn claims.

B. Defect Claims

1. Manufacturing Defect

A manufacturer may be liable for producing a defective product, defined as a product "that differs from the manufacturer's intended result or from other ostensibly identical units of the same product line." Lucas v. City of Visalia, 726 F.Supp.2d 1149, 1154 (E.D. Cal. 2010). A manufacturing defect must be a substantial factor in causing an injury to qualify as a legal cause of the injury. Garrett v. Howmedica Osteonics Corp., 214 Cal.App.4th 173, 190 (2013).

Piexon's JPX training materials highlight that the JPX discharges at a speed of 180 meters per second. The City's Complaint alleges that the JPX rounds provided to BPD varied from the quality of other rounds because they had muzzle velocities ranging from 550 feet per second to 1000 feet per second, faster than the 590 feet per second, or 1.8 m/s, advertised. (Complaint ¶ 69.) Thus, the alleged manufacturing defect at issue is "the extreme variability of cartridge velocity compared to advertised specifications." (Opp. at 7:26-27.)

Piexon argues that, even if the JPX did discharge at the speed the City claims, that faster muzzle velocity was not a substantial factor in causing Hernandez's injury because even a discharge at 180 m/s would have led to the same result. (Mot. at 22.) The City, without any citation to the record, asserts that the cartridges applied a kinetic energy "approach[ing] that of a .40 caliber handgun." (Opp. at 8.) The City does not, however, address Piexon's argument regarding causation. Even putting aside Piexon's objections regarding the City's expert's analysis of JPX muzzle velocity, there is no medical evidence in the record at all, let alone evidence that a JPX discharged at 180 m/s at a distance of less than one foot would have had any different effect than one discharged at a higher muzzle velocity. To the contrary, even the City's expert testified that he did not know if Hernandez's injuries would have been any different if the JPX had performed as advertised. (SGD 63.)

Because there is no evidence that "the extreme variability of cartridge velocity" was a substantial factor in the injury to Hernandez, summary judgment is warranted on the City's manufacturing defect claim.

2. Design Defect

"A design defect exists when the product is built in accordance with its intended specifications, but the design itself is inherently defective." Mariscal, 52 F. Supp. 3d at 985. A plaintiff may seek to show a design defect through a "consumer expectation" test or a "risk-benefit" test. Id. Although it is unclear which test the City seeks to apply, the court addresses each.

i. Consumer Expectation Test

The consumer expectation test allows a plaintiff to show a design defect by proving "that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." Barker v. Lull Eng'g Co., 20 Cal.3d 413, 432 (1978). The consumer expectation test is not applicable to every product liability case. See Chavez v. Glock, Inc., 207 Cal.App.4th 1283, 1310 (2012). "The initial determination whether the consumer expectation test is properly applied to a particular case is for the court." Id. at n. 10. "If the facts permit an inference that the product at issue is one about which consumers may form minimum safety assumptions in the context of a particular accident, then it is enough for a plaintiff. . . to show the circumstances of the accident and the objective features of the product which are relevant to an evaluation of its safety . . . ." McCabe v. Am. Honda Motor Co., 100 Cal.App.4th 1111, 1120 (2002). The required showing does not necessarily require expert testimony. Id.; Mariscal, 52 F.Supp.3d at 985. "The thrust of the . . . test is that the product must meet the safety expectations of the general public as represented by the ordinary consumer, not the industry or a government agency." Soule v. Gen. Motors Corp., 8 Cal.4th 548, 563 (1994).

"The consumer expectations test is reserved for cases in which the everyday experience of the product's users permits a conclusion that the product's design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design." Id. (emphases original). "[A]ppropriate use of the consumer expectations test is not necessarily foreclosed simply because the product at issue is only in specialized use, so that the general public may not be familiar with its safety characteristics." Id. at 567 n.4. "[I]f the expectations of the product's limited group of ordinary consumers are beyond the lay experience common to all jurors, expert testimony on the limited subject of what the product's actual consumers do expect may be proper." Id.

Piexon contends that there is no evidence that any alleged design defect of the JPX caused Hernandez's injury. As an initial matter, the City's arguments regarding design defect, as opposed to manufacturing defect, do not identify any particular defect. The City's only contention is that "the velocity of the JPX Jet Protector is the problem." (Opp. at 10:15.) The City's position, unsupported by any citation to case law or other authority, centers on the facts that JPX is designed to target a subject's face, is unique in the marketplace, and has a higher muzzle velocity than advertised.8 (Id.)

Based on the evidence presented, the court cannot conclude that the facts permit an inference that consumers may form minimum safety assumptions about JPX devices. The JPX, which the City itself asserts to be "unique," is not a product with which the general public is likely to have any experience, let alone sufficient experience to form an opinion about minimum safety assumptions. See id. at 564 (discussing Bates v. John Deere Co., 148 Cal.App.3d 40, 52 (1983) ("We . . . find it difficult to apply the [consumer expectation] test to these facts, in part because it is difficult to conceive that an ordinary consumer would know what to expect concerning the safety design of a commercial cotton picker.")). The City has not cited any evidence that lay jurors could form such an opinion based upon their own experiences, let alone any expert evidence that would allow jurors to form an opinion about what the universe of law enforcement or other actual consumers of JPX devices might reasonably expect. Soule, 8 Cal. 4th at 567 n.4. Thus, even if the consumer expectation test were applicable here, there is no triable issue as to whether Plaintiff has satisfied that test.

ii. Risk-Benefit Test

"A product is defective under the risk benefit test if the plaintiff demonstrates that the product's design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that . . . the benefits of the challenged design outweigh the risk of danger inherent in such design." Mariscal, 52 F.Supp.3d at 987. Relevant factors include the gravity of the danger posed by the design and the mechanical and economical feasibility of a safer design. Id. The plaintiff bears the burden of making a prima facie showing that the injury was caused by the defective design, at which point the burden shifts to the defendant to show that the benefits of the design outweigh the risks. Id.

Although the City's argument is not well developed, it asserts that "the velocity of the JPX Jet Protector is the problem" in light of Piexon's literature that suggests that "short range JPX Jet Protector deployment at the secondary target[`]s `chest, neck, and side of head' can safely be accomplished at close distances." (Opp. at 10:18-20.) As explained above, that characterization of the Piexon training materials is inaccurate.

The City also makes reference to the feasability of utilizing a "Distance Control unit" that Piexon developed to automatically measure the distance to a JPX target and provide a warning signal to the user, but does not support that reference with any citation to the record. (Opp. at 10.) In any event, that argument is geared toward the balancing of the relevant risk-benefit factors. That balancing is premature. The City must first meet its burden to establish a prima facie case that Hernandez's injury was caused by the JPX's defective velocity design. Mariscal, 52 F.Supp.3d at 987. As discussed above, however, the only evidence pertaining to velocity and causation is the City's expert's opinion that Clark's unit discharged at a higher velocity than advertised. Even he, however, did not know whether a 180 m/s discharge velocity would cause the same injuries. On the current record, which includes no medical evidence, no reasonable trier of fact could conclude that the JPX's defective muzzle velocity caused Hernandez's injury.

C. Warranty Claims

1. Express Warranty

There is no dispute that the City did not contract with Piexon to purchase the JPX devices. Generally, "privity of contract is required in action for breach of express warranty and breach of implied warranty." Tapia v. Davol, 116 F.Supp.3d 1149, 1159 (S.D. Cal. 2015). An exception to this requirement applies to express warranty claims, however, where a purchaser relies upon representations made by a manufacturer in labels or advertisements. Id.; Fundin v. Chicago Pneumatic Tool Co., 152 Cal.App.3d 951, 957 (1984).

The City identifies two supposed express warranties, one regarding "certain muzzle velocities" and the other that "JPX could be safely deployed at close range if targeting the chest, neck or side of the head." (Opp. at 12.) As explained above, the latter contention is not supported by the record. As to "certain muzzle velocities," it is true that certain Piexon training materials represented that JPX had a muzzle velocity of 180 m/s. The City refers only generally to "marketing and product literature," without any citation to the record. (Opp. at 12:4.) It is unclear to which documents the City refers specifically. Even assuming that the City refers to the training materials, as opposed to "marketing or product literature," there is no evidence in the record that any BPD or City official relied upon those advertisements for any reason.

Absent any evidence of privity between the City and Piexon or the former's reliance upon the latter's marketing materials, the City's express warranty claim fails.

2. Implied Warranty

The City does not address Piexon's argument that the lack of privity is fatal to the City's implied warranty claim. But unlike an express warranty claim, an implied warranty claim requires a showing of privity. See Tapia, 116 F.Supp.3d at 1159-60. Although the City argues, without citation, that it "was relying on Piexon and Bart Bacolini to provide them with a product and appropriate training to allow the BPD to use the JPX safely for law enforcement purposes," it is undisputed that the City never contracted with Piexon for anything. See Burr v. Sherwin Williams Co., 42 Cal.2d 682, 695 (1954) ("The general rule is that . . . there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale.") Piexon is entitled to summary judgment.

D. Misrepresentation

Lastly, Piexon argues that the City's misrepresentation claims fail because Piexon did not have any communications with the City or Clark. (Mot. at 24.) The City argues, without citation to authority or the record, that "there are more than enough false claims." (Opp. at 12.) Specifically, the City identifies misrepresentations about JPX's muzzle velocity, confusing and negligent training materials, and claims that JPX could safely be shot at the side of the head at close range. As explained above, the record does not support the latter two assertions. And, as explained above, there is no evidence that any misrepresentation of muzzle velocity resulted in damages to the City. See West v. JPMorgan Chase Bank, N.A., 214 Cal.App.4th 780, 792 (2013) (listing elements of negligent misrepresentation claim).9

Accordingly, Piexon is entitled to summary judgment.

IV. Conclusion

For the reasons stated above, Piexon's Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.