ARMSTRONG, Acting P. J.
Desirae Lupien appeals from the judgment entered in favor of The Vons Companies Inc., on her complaint, after Vons' motion for summary judgment was granted. We reverse.
Lupien also challenges an order that she and counsel, jointly and severally, pay a portion of fees of a discovery referee appointed by the court. We affirm the order that Lupien pay those fees, but reverse the order insofar as it applies to counsel.
"Because plaintiffs appealed from the trial court's order granting defendants' summary judgment, we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. . . . [¶] . . . [W]e must determine whether defendants have shown that plaintiffs have not established a prima facie case, . . . `a showing that would forecast the inevitability of a nonsuit in defendants' favor. If so, then under such circumstances the trial court was well justified in awarding summary judgment to avoid a useless trial.' [Citations.] . . . [¶] In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, citations omitted.)
We review the facts with these rules in mind.
On August 21, 1992, Lupien, then 17 months old, injured her left index finger, after putting that finger into one of the tubes which formed the frame of a child's folding chair, which her mother had bought at Vons. Lupien sued Vons for products liability, bringing causes of action titled negligence, strict liability, breach of warranty, fitness for purpose, and merchantability.
Vons' theories at summary judgment centered on duty and causation.
Because Vons proffered many proposed undisputed facts which have no relevance to any legal theory, and makes arguments on appeal which it did not make at summary judgment, we must begin by sorting wheat and chaff.
Vons proposed undisputed facts concerning the history of this lawsuit, which was first filed in 1998, dismissed in 2000, and refiled in 2009. Vons does not, however, present any authority which would make those facts relevant, and we do not detail them.
On appeal, Vons seems to argue that plaintiff's injuries were de minimis, citing her deposition testimony, which appears in our record in a Respondent's Appendix, but which does not seem to have been before the court at summary judgment, and which was not the subject of any proposed undisputed fact at summary judgment. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 472 [facts not set forth in the separate statement do not exist].) Vons does not advance any legal argument based on this evidence, either. We note, too, that there is also evidence in our record that Lupien suffered permanent disfigurement to her nail bed, and loss of flexion in her finger.
We turn now to the remainder of the facts at summary judgment.
Lupien's mother, Michele Lupien Bowers, bought the chair at Vons on August 10, 1992. Vons proposed as undisputed that plaintiff had no "proof of purchase" of the chair allegedly involved.
It was undisputed that Bowers put the chair in the bedroom she and her husband (Lupien's father) shared. In the next weeks, on two or three occasions, Bowers opened the chair for Lupien, who sat in it and colored. Then, on August 21, 1992, while Bowers was in the room getting dressed, Lupien injured herself on the chair.
It was undisputed that in her response to interrogatories (signed by counsel), Lupien described the accident: as she "was opening the chair [her] finger got caught in the open hole of the front `chair leg'. . . ."
Vons also proposed an undisputed fact based on Bowers's description of the accident, in her deposition. The fact was to some extent disputed, also based on Bowers's deposition testimony. That testimony was that when Bowers first observed Lupien with the chair, Lupien was standing, with both feet on the ground. "Her left hand was at the armrest of the chair, and her index finger was inside the opening of the tube of the frame." The chair was in a partially open position, with one of the two tubes which formed the frame (the back one) on the ground. Lupien was crying. Bowers went to her, and observed that her finger was stuck in the chair. As Bowers was assessing the situation, Lupien pulled her finger from the tube.
It was undisputed that a warning label on the chair read: "How To Use Your Chair [¶] 1. Open chair fully until you hear ratchets click. Do not sit on chair until you hear ratchets click into place. [¶] 2. For safety sake, Do not stand on chair or sit on arms. Your chair is designed for use by one person at a time. Keep fingers free of hinged areas of chair to avoid pinching. [¶] Not to be removed until delivered to the consumer. [¶] Made and Printed in Taiwan. [¶] IMPORTANT: Do not use chair until you are sure that legs are locked into position."
However, Lupien did object to this fact, contending that the warning was irrelevant because her injury had nothing to do with the hinged areas, but instead involved open tubes, and because "use" in the warning meant "sit in," so that the chair was not being used when Lupien suffered her injury.
Finally, Vons proposed as undisputed that plaintiff identified the defect as "failure of the manufacturer and seller to properly fit the front legs of the child's chair with plastic caps," and the lack of a proper warning. These proposed facts were supported with reference to Lupien's responses to discovery, and were essentially undisputed.
With her own statement of proposed undisputed facts, Lupien proffered a declaration from Carl Sheriff, a licensed professional mechanic, control systems and safety engineer. He declared that he had examined "the subject chair," all available discovery, relevant consumer safety standards and Consumer Product Safety Commission recalls and safety bulletins, and Vons' summary judgment motion and all associated pleadings, exhibits, and declarations.
He declared that the chair presented a dangerous condition for several reasons, including: "(1) The `open tubes' created a hazardous condition; (2) The hazardous condition created by the `open tubes' was likely to result in a serious injury to the hand, such as that which seriously harmed the plaintiff; (3) The failure of the subject chair to have been equipped with `caps' over the open tubes contributed significantly to its dangerous condition; (4) The warnings on the affixed tag to the chair were inadequate to safeguard against the dangerous condition especially since such warning does not decrease in any way, the injury that could, and in this case did result from the `open tubes.' (5) The warnings on the affixed tag to the chair address injury that could potentially result from the `hinged areas' such as `pinching' and do not address the hazard created by the `open tubes.'"
Sheriff opined that "if the chair had been properly equipped with plastic caps the serious injury to the Plaintiff would not have occurred."
The trial court sustained Vons' evidentiary objections to this declaration, finding that "Plaintiff's expert does not explain how he reached this opinion that the chair was defective."
The trial court granted Vons' motion, finding that "Plaintiff cannot establish any causation between any act/omission by Vons and plaintiff's accident. The chair had been used two or three times before the incident for one or two hours each time. Plaintiff's mother was allegedly supervising and watching 17 month old plaintiff, three feet away; knew of the tag with the warning to use only when the legs were locked into position which came on the chair when purchased; had always set up the chair when it was used by plaintiff previously; but failed to open the chair for plaintiff on the day of the accident. Plaintiff only had the chair partially open when her accident occurred. Plaintiff, and or her mother, did not follow the manufacturer's warning about using the chair only when the legs were locked into place. Plaintiff is only speculating that `caps' would have prevented any accident. Plaintiff's mother's failure to supervise her 17 month old was the cause of this accident."
The court also made orders on fees due to a discovery referee, ordering the fees split between plaintiff and defendant.
We begin with Vons' contention that Lupien has conceded that Vons had no legal duty to her, and has conceded that she failed to establish a causal link between Vons' action or inaction and her injury. We see no concessions. Instead, Lupien argues well-established product liability cases which hold that a plaintiff may recover under product liability theories "for three types of defects — manufacturing defects, design defects, and `warning defects,' i.e., inadequate warnings or failures to warn," (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1110) and that strict products liability applies not just to manufacturers but to wholesale and resale distributors of defective goods. (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262.)
Vons' substantive contentions are that Lupien cannot establish a prima facie case because she cannot establish either duty or causation. We cannot see that Vons was entitled to summary judgment on either theory.
As to duty, Vons argues that "one owes no duty to control the conduct of another," (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203) and that "[t]he existence of duty is a question of law to be decided by the court," (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278) then argues that Lupien presented no facts or law to show the existence of a special relationship or duty of care here. We think the question of duty is answered by the products liability cases cited above. (Vandermark v. Ford Motor Co., supra, 61 Cal.2d at p. 262.)
Under causation, Vons argues that the cause of the accident was Bowers's failure to supervise Lupien. In a products liability case, the plaintiff must prove that the defective product was a substantial factor in bringing about his or her injury. (Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, 1373.) We cannot see, however, that the fact that Bowers was nearby meant the open tube was not a substantial factor in causing Lupien's injury. We know of no authority which holds that as a matter of law, a parent's failure to prevent a child from handling a product designed for children is the sole legal cause of the injury, if the child is injured from that product.
Finally, on causation, Vons argues that Lupien cannot prove causation because she is merely speculating that the lack of a cap on the tube was the cause of her injury. The argument is difficult to understand. If the tube had been closed, rather than open, Lupien could not have put her finger in it, and would not have been hurt. Where is the speculation in that? Vons argues that Lupien's injury "most likely came from the hinged area," but that is indeed speculation.
Vons also points to the warning on the chair, but we do not see that the warning is dispositive. Vons' theory at summary judgment was that the warnings "Do not use chair until you are sure that legs are locked into position," and "Keep fingers free of hinged area of chair to avoid pinching," were adequate, and that no additional warning would have made any difference, since Bowers had previously opened the chair without incident. Lupien's theory was that her injury had nothing to do with the hinges, that the chair was not "in use" when she was injured, and that the warning label did not inform her (actually, her mother) that a child should not touch the chair unsupervised, because open tubes posed a hazard.
The mechanics of this accident are not quite clear to us, and the warning concerning pinching injury and the warning concerning use might be relevant. They might not. "In general, the adequacy of the warning is a question of fact for the jury." (Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 717.) Nothing in this summary judgment motion created an exception to that rule.
Vons also argues that it is entitled to summary judgment because Lupien did not produce evidence that the chair was defective. Vons mistakes the burden on summary judgment. Until Vons showed that Lupien could not make her case, Lupien had no burden to produce evidence. For this reason, we do not address the parties' arguments concerning the trial court's evidentiary ruling excluding Sheriff's declaration.
Vons cites the rule that "A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560.) However, Vons does not explain why the undisputed facts establish that the incident here was not reasonably foreseeable. "A manufacturer is required to foresee some degree of misuse and abuse of a product and to take reasonable precautions to minimize the resulting harm. . . . [T]he extent to which a manufacturer must anticipate the misuse of its product and the adequacy of a product warning present issues of fact." (Bunch v. Hoffinger Industries, Inc. (2004) 123 Cal.App.4th 1278, 1302-1303.)
Vons argues that it was entitled to rely on Lupien's factually devoid interrogatory responses (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 592-593) to establish that Lupien could not prove defect.
The discovery responses Vons relies on were in response to the question "Please describe, as you would for a jury, what you allege was the cause of the accident described in your complaint," and "State all facts upon which you believe The Vons Companies Inc. has liability to you for the accident alleged in the complaint."
In response to the first question, Lupien answered that "the cause of [her] injury was the failure of the manufacturer and seller to properly fit the front legs of the childs chair with plastic caps." In response to the second question, Lupien answered "provided a defective product with no appropriate warning."
Those are not factually devoid responses which showed Lupien would be unable to meet her burden of proof regarding an essential element of her case. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467.)
In March 2010, Lupien moved for the appointment of a discovery referee, contending that Vons was refusing to provide discovery. Vons opposed the motion, arguing, inter alia, that it had been cooperative in discovery. The court appointed a referee, naming a retired bench officer and stating "the total cost will be borne by the plaintiff." Lupien did not object. At a subsequent hearing, Lupien argued that the cost of having the referee attend depositions noticed by Vons should be borne by Vons. The court ruled the referee would have the authority to determine how the fees should be split, finding that "the referee is going to be free to determine how the costs of those depositions or other proceedings or motions should be decided." Lupien made no objection.
The minute order of the hearing also states, "Court states that [referee] shall determine the parties' ability to pay and division of costs."
In his final report, the referee wrote that "part of the referee's assignment was to determine the financial abilities of the different sides to pay the referee's fees," but also wrote that "the referee did not accept this assignment contingent upon a side's ability to pay," and that the only person who had submitted information on the issue was Lupien, who had declared that she lacked the funds to pay anything. The referee asked the court to notice that defendant is a large supermarket chain.
The referee reported that both parties had asked for sanctions against the other, claiming discovery abuse. Lupien had requested $2,440 from Vons and Vons had requested $1,200 from Lupien. The referee did not rule on those requests, but found that ". . . the attorneys could not or would not deal with each other in a cooperative spirit. This is one of the reasons why the Referee is suggesting to the Court that not only the parties pay the Referee's fees, but that the Court order the Attorneys to also pay the fees that their respective clients may not be able to. . . . It is the Referee's view that while monetary sanctions may be properly imposed by the Court on both sides that a better use of the funds would be to pay the Referee's fees."
As to the split of fees, the referee wrote that the court was in a better position to make the determination, but that "[i]f the court does not believe that it is in a better position than the Referee, then it is suggested that the Referee's fees be equally divided between the Parties and/or their Attorneys."
With its ruling on summary judgment, the court adopted the referee's report and ordered the referee's fee, $7,800, split evenly between Lupien and Vons, with plaintiff's share to be paid jointly and severally between Lupien and her counsel.
Lupien now argues that order concerning the referee's fees must be reversed because the court failed to comply with Code of Civil Procedure section 639, subdivision (d)(6)(A), which provides that the order appointing a referee shall include: "Either a finding that no party has established an economic inability to pay a pro rata share of the referee's fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee's fees and that another party has agreed voluntarily to pay that additional share of the referee's fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made."
We see no reversible error. Lupien did not make any objection on this ground in the trial court, and thus may not prevail on this ground on appeal. (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501, Mattox v. Isley (1952) 111 Cal.App.2d 774, 780.)
Lupien also argues that the court had no authority to make the fees jointly payable by counsel. Vons responds that the order was essentially an order for sanctions, and thus that an order against counsel is thus proper.
We agree with Lupien. An award of sanctions for discovery abuse must be made pursuant to the procedures, and within the limits, set out in Code of Civil Procedure section 2023.010 et seq. An order that an attorney pay an amount substantially in excess of that requested in a sanctions request, without any finding of discovery abuse, does not comply with the statutes.
Nor do we see other authority for ordering counsel to pay a referee's fees. The statutory scheme on referees does not provide for such an order, but instead suggests that only the litigant may be ordered to pay. Code of Civil Procedure section 639, subdivision (d)(6)(B), provides that "(B) In determining whether a party has established an inability to pay the referee's fees under subparagraph (A), the court shall consider only the ability of the party, not the party's counsel, to pay these fees."
With its judgment, the court also awarded costs. As Lupien argues, reversal of the judgment means that the costs order is reversed, too.
The judgment is reversed. The order that Lupien pay half the referee's fees is affirmed, except insofar as it makes counsel liable for those fees.
Appellant to recover fees on appeal.
MOSK, J. and KRIEGLER, J., concurs.
