Glynn v. American Honda Motor
Filed 8/28/08 Glynn v. American Honda Motor CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
WILLIAM EDMOND GLYNN et al., Plaintiffs and Appellants, v. AMERICAN HONDA MOTOR CO. INC., Defendant and Respondent. | G039463 (Super. Ct. No. 06CC03894) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Steven L. Perk, Judge. Reversed.
The Boccardo Law Firm and John C. Stein for Plaintiffs and Appellants.
Bowman and Brooke, Robert K. Miller, Robert S. Robinson and Gregory P. Gilmer for Defendant and Respondent.
* * *
William Glynn was injured when his car collided with a tree, allegedly because contaminated grease on the throttle cable of his 1996 Honda Accord caused the accelerator to stick. Glynn sued Honda and brought a motion for summary judgment.
Hondas moving papers were of the Celotex-the-plaintiff-does-not-have-the-evidence-to-prove-his-case variety. (See generally Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845 [moving defendant may simply point out . . . that the plaintiff does not possess, and cannot reasonably obtain, evidence that would allow such a trier of fact to find any underlying material fact more likely than not].)
In response, Glynn produced the declaration of an expert witness, Samuel Sero, who stated he examined the accelerator cable and found grease on it. Expert Sero opined that accumulated dirt and debris from the grease on the cable had caused it to stick and that such cables are designed and manufactured never to be greased.
Honda then filed a supplemental declaration with its reply papers, from one of the companys senior technical specialists, Neil Schmidt. The point of the declaration was that company specifications required grease to be applied to the throttle cable.
Within five days Glynn filed a supplemental declaration from his expert Sero, noting that he had found black grease on the cable from the 1996 Honda, whereas an exemplar cable which he purchased had no apparent grease and no greasy or oily residue when one touched it.
At oral argument the trial judge indicated that he had not considered any new matter, either the reply declaration from Schmidt or the supplemental declaration from Sero. (The court: I dont consider new matters in reply papers and I dont consider new matters in reply to the reply, okay.)
However, after taking the matter under submission, it appears that he certainly considered Schmidts reply declaration and did not consider Seros reply to that reply. The minute order, granting the motion, read: The presence of grease on the cable is part of the specifications of the product. Sero also does not opine that he found any grease which would cause the cable to bind. But the point that grease was part of the specifications had been the thrust of Schmidts reply declaration -- it was not to be found in the moving papers, while the point that Sero had not found grease that would cause binding does not comport with his supplemental declaration, which reasonably stands for the idea that he did find grease (black grease) that would cause the cable to bind.
This appeal followed. We now explain why we must reverse.
It is a clear abuse of discretion for the trial judge to consider the additional evidence in the form of Hondas reply declaration from Schmidt but not also consider Glynns reply to that reply in the form of Seros second declaration. (See Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8 [indicating it would be an abuse of discretion for trial court to consider additional evidentiary matter in reply without giving the party opposing the motion . . . an opportunity to respond to the new material].)
The abuse of discretion was prejudicial because, had the trial judge considered Seros reply to the reply, a triable issue of fact would have been identified: Whether the presence of black grease on the cable was the result of a design or manufacturing defect, particularly in light of Seros observation that exemplar cables had gray or colorless grease on them.
On this record at least, we cannot say that the presence of black grease was not a manufacturing or design defect. Both of Seros declarations linked the accident to a sticking throttle, and the second declaration was quite explicit in explaining how black grease could cause such sticking (or, in engineer jargon, binding): Seros supplemental declaration asserted that the The cable should always be a clean gray not a coated black and that the clearance between the outside diameter of the cable and the inside diameter of the conduct housing is at most two hundredths of an inch, which was a material wedge size that can easily occur on the contaminated cable (which we take to be engineering jargon for: its pretty tight and something might get stuck in there). Then he noted that the cable is pulled forward by the accelerator pedal, out of the housing, when the pedal is depressed. Thus contamination can cause the cable to bind as it tries to return to the idle position when the pedal is released. And that, in turn, could cause a surge forward after braking: Given a partially stuck open throttle the car can be braked to reduce its speed and even stopped fully. However, when the brake is released the throttle open condition, as it is stuck in place, will cause the vehicle to surge forward under this acceleration application.
The judgment is reversed. Appellants are to recover their costs on appeal.
SILLS, P. J.
WE CONCUR:
OLEARY, J.
FYBEL, J.
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