Filed 11/20/14 Platero v. Anchor Hocking CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


ISMENIA PLATERO et al.,                                              B250947

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. BC445557)
         v.

ANCHOR HOCKING et al.,

         Defendants and Respondents.


         APPEAL from an order of the Superior Court of Los Angeles County, Robert L.
Hess, Judge. Affirmed.
         Law Offices of Martin L. Stanley, Martin L. Stanley and Jeffrey R. Lamb for
Plaintiffs and Appellants.
         Frost Brown Todd, Beth S. Naylor, Holland & Knight, Shelley Hurwitz, Acker &
Whipple, Stephen Acker, Leslie Anne Burnet, Kelley E. Harman, for Defendants and
Respondents.
        The claims of appellants Ismenia Platero and Ronald Marroquin (together,
“plaintiffs”) arise from the deaths of their 15-year-old twin sons, Edward and Erick, in a
fire which started in the boys’ bedroom. Plaintiffs contend that the fire was caused by a
defective candle product1 manufactured and distributed by respondents Anchor Hocking,
LLC and Home and Garden Party, Ltd. dba Celebrating Home (referred to individually as
“Anchor Hocking” and “Celebrating Home” respectively, and together as “defendants”).
The court granted summary judgment in favor of defendants based on its finding that
plaintiffs failed to produce any evidence that a defect in the candle product caused the
fire.
        Plaintiffs appealed from the judgment entered following the grant of summary
judgment. We agree that there is no triable issue of material fact regarding defendants’
liability, and thus affirm the judgment.


                   FACTUAL AND PROCEDURAL BACKGROUND
        Platero purchased eight-inch tall glass-enclosed scented candles at a friend’s
apartment party about three months prior to the date of the fire. They were ordered from
a company called “Home Interiors,” and came in a box of three candles; one blue with an
incense smell, one green with a pear scent, and one red with a baked apple or apple-
cinnamon scent. According to the label on the bottom of the candles, they were
manufactured and/or distributed by defendant, Celebrating Home. In discovery
responses, plaintiff learned that defendant Anchor Hocking provided the glass containers
for some of Celebrating Home’s line of candle products.
        The fire that caused the death of the victims in the early morning hours of
August 12, 2010, occurred in a bedroom of the family’s apartment. At 10:30 p.m. the
previous evening, Platero observed one of the above-described candles in her twin sons’
bedroom. It was lit. Sometime later, between 11:45 p.m. and midnight, she checked on
her sons again, at which time she noted that the candle was still burning. Her son Edward


1
        The term candle product refers to a candle surrounded by a glass container.
                                              2
promised to put out the candle before he went to sleep. Platero went to bed at 12:55 a.m.,
without checking to ensure that the candle had been extinguished.
       Platero was awakened by screams coming from the twins’ bedroom. She ran to
the room and opened the door to find smoke and flames. She attempted without success
to put out the flames, then called 911. She rescued her other three children from the
house but could not rescue the twins, who died in the fire.
       The candle in the twins’ room was the red one of the three candles plaintiff had
purchased approximately three months earlier at her neighbor’s party. The candle in
question was never recovered by the fire investigator, who found no evidence of a candle
or candle wax in the victims’ bedroom. The fire investigator did find two candles in
other rooms in the apartment, one blue and one white. It did not find any damage to the
glass containers surrounding those candles.
       The fire investigator found several electrical devices connected to an extension
cord located in the wall adjacent to the dresser where Platero said that the lit candle had
been placed.
       The official cause of the fire was never determined by the fire department. The
Fire Investigation Report does, however, state that “[m]ost probabl[y] the lit candle was
responsible for the cause of the fire.”
       Plaintiffs filed a wrongful death complaint against the building owner on
September 16, 2010. The complaint alleged that various Doe defendants “negligently
developed, manufactured, marketed and distributed the defective candles” causing the
deaths of plaintiffs’ sons. Celebrating Home and Anchor Hocking were later brought into
the suit as Doe defendants.
       On June 25, 2012, Celebrating Home filed its Motion for Summary Judgment with
supporting papers. On February 1, 2013, Anchor Hocking filed a Notice of Joinder in
Celebrating Home’s Motion for Summary Judgment, along with additional documents in
support of the motion. In opposition to the motion, plaintiffs submitted the expert
witness declaration of Marcello M. Hirschler, who opined that an unspecified defect in
the candle and/or glass caused the deaths of the plaintiffs’ sons. Anchor Hocking

                                              3
objected to the Hirschler declaration, contending it was based on the assumption of facts
which had no evidentiary support, and consisted of nothing but speculation and
conjecture. The court agreed and struck the declaration. Finding no triable issue of
material fact as to the liability of Anchor Hocking or Celebrating Home, the court granted
the summary judgment in favor of defendants. The court found that “[n]either the candle
nor the glass container, nor any trace of their presence, was established by physical
evidence when the fire was investigated,” and “[t]he absence of any physical evidence
that either the candle or the glass container was defective in any regard leaves nothing but
speculation in support of Celebrating Home and Anchor Hocking’s liability.”
       Judgment in favor of defendants was entered on August 1, 2013, which judgment
was amended on August 27, 2013 and August 29, 2013. Plaintiffs timely filed their
Notice of Appeal.


                                       DISCUSSION
       Plaintiffs raise two issues on appeal. They contend that the trial court erred in
excluding their expert’s declaration, and that their “discovery responses were sufficient
and defendants failed to meet their initial burden” such that the trial court erred in
granting summary judgment to defendants. We consider each of these issues below.
       “On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all of the evidence set forth in the moving and opposing
papers except that to which objections have been made and sustained. (Artiglio v.
Corning Inc. (1998) 18 Cal.4th 604, 612.) Under California’s traditional rules, we
determine with respect to each cause of action whether the defendant seeking summary
judgment has conclusively negated a necessary element of the plaintiff’s case or has
demonstrated that under no hypothesis is there a material issue of fact that requires the
process of trial such that the defendant is entitled to judgment as a matter of law.” (Guz
v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334; see also Wiener v. Southcoast Childcare
Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 767.) If the defendant meets this burden, the burden then shifts to the

                                              4
plaintiff to show “specific facts” showing that a triable issue of material fact exists.
(Code Civ. Proc., § 437c, subd. (p)(2).)
       In performing the de novo review, the appellate court must view the evidence in
the light most favorable to appellant as the losing party. (Wiener v. Southcoast
Childcare, Inc., supra, 32 Cal.4th at p. 1142; Powell v. Kleinman (2007) 151 Cal.App.4th
112, 121-122.) However, the scope of the appellate court’s de novo review is determined
by the issues properly raised and supported by citation to the record and legal authority.
(Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116; City of Burbank v.
Burbank-Glendale-Pasadena Airport Authority (1999) 72 Cal.App.4th 366, 373.) “De
novo review does not obligate the appellate court to cull the record for the benefit of the
appellant in order to attempt to uncover the requisite triable issues” of material fact to
defeat a summary judgment motion. (Lewis v. County of Sacramento, supra, at p. 116;
see also Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
       In determining whether a trial court properly excluded the declaration of an expert
witness presented by the opposing party to a motion for summary judgment, we apply the
abuse of discretion standard. (See Wiener v. Southcoast Childcare Centers, Inc., supra,
32 Cal.4th at p. 1142; Howard Entertainment v. Kudrow (2012) 208 Cal.App.4th 1102.)


       1. The trial court properly excluded plaintiffs’ expert’s declaration
       In order to prove their case against defendants, plaintiffs were required to prove
that the candle and/or the glass container had a specific manufacturing or design defect.
(Milwaukee Electric Tool Corp. v. Superior Court (1993) 15 Cal.App.4th 547, 555.)
“[U]nder either a negligence or a strict liability theory of products liability, to recover
from a manufacturer, a plaintiff must prove that a defect caused injury.” (Merrill v.
Navegar, Inc. (2001) 26 Cal.4th 465, 479.) The only evidence produced in an attempt to
satisfy plaintiffs’ burden of producing evidence that the candle or glass container was
defective and that such defect was the cause of the fire was the declaration of plaintiffs’
expert, Mr. Hirschler. The trial court excluded this declaration, finding that it was based
on pure conjecture and speculation.

                                               5
       There are three distinct requirements for admissibility of expert opinion: (1) the
subject matter must be sufficiently beyond common experience that the opinion would
assist the jury, (2) the witness must have appropriate qualifications, and (3) the opinion
must be based on reliable matter. (Evid. Code, § 801.) The court struck the Hirschler
declaration based on its failure to comply with the third requirement.
       An expert’s declaration “may not be based on assumptions of fact that are without
evidentiary support or based on factors that are speculative or conjectural, for then the
opinion has no evidentiary value and does not assist the trier of fact.” (Casey v. Perini
Corp. (2012) 206 Cal.App.4th 1222, 1232-1233 [an expert declaration in connection with
a summary judgment motion should be rejected when the declaration is speculative, lacks
foundation and is stated without sufficient certainty]; Bushling v. Fremont Medical
Center (2004) 117 Cal.App.4th 493, 510 [expert’s declaration that the injury was caused
“more probably than not” by certain events was precluded when there was no foundation
for the asserted facts].)
       Mr. Hirschler opined nothing more than a hypothetical possibility that “the
[candle] glass cracked and caused the fire.” Then based on this unsupported
hypothetical, he opined that there are “two possible reasons for a candle of this kind to
crack”; the glass was either “too thin” or “insufficient to resist temperature of the burning
candle.” His declaration ignores any other potential causes for glass to crack, including
common causes like impact or misuse. Mr. Hirshcler then extends his hypothetical
further, opining that the glass container was “not properly designed in accordance with
appropriate safety standards” and “if the glass had been thicker and/or designed and
manufactured in such a way as to handle the high temperatures associated with burning
candles there would not have been a fire in the apartment and the children would not have
died in the fire.”
       Mr. Hirschler offered no facts in support of his initial assumption that the glass
cracked or for any of his following conclusions based on that unsubstantiated assumption.
Mr. Hirschler did not examine the candle, did not examine an exemplar candle, did not
perform any testing, did not review the candle design or specifications; indeed, he did not

                                              6
do anything but opine about a hypothetical defect in a factual vacuum. None of these
speculative conclusions were supported by citation to any standard, measurement,
specification, physical evidence, testimony, or any other fact that would indicate that the
glass container (1) cracked, (2) was too thin, (3) or was improperly designed, or (4)
would show how these hypothetical defects actually caused the fire. He simply chose a
conclusion and then provided assumptions which would support the conclusion, rather
than base his opinion on the known facts of the case.
       While Mr. Hirschler broadly claimed his opinion was based on fire damage
patterns, descriptions of the progression of the fire, and conclusions of the fire
department, there is no explanation of how any of this evidence supports his opinion. He
simply concluded that because the candle product possibly caused the fire, the glass must
have been defective in design or manufacture. He failed to bridge the gap between
connecting the possibility the fire was started by the candle to evidence that a defect in
the glass container caused the fire. Mr. Hirschler’s declaration was not evidence of
anything. The trial court properly excluded the declaration as being based solely on
speculation and conjecture.
       Other than reiterating its argument made in the trial court that the Hirschler
declaration should be “liberally construed,” repeating the content of the declaration and
stating that the expert’s opinion was based on Investigator Sanchez’s testimony,2
plaintiffs make no argument whatsoever challenging the trial court’s ruling that the
Hirschler declaration opinions were based on mere speculation and conjecture and
therefore inadmissible.
       Plaintiffs rely on Garrett v. Howmedica Osteonics Corporation (2013) 214
Cal.App.4th 173 to argue that the Hirschler declaration was improperly excluded. In that

2
        None of Investigator Sanchez’s testimony cited by plaintiffs support the
contention that the candle or glass container contained a defect that caused the fire. Even
if one were to “guess” – as Investigator Sanchez specifically indicated he was doing –
that the lit candle caused the fire, that does not mean that the candle was defective. For
example, the glass container could have sustained damage during plaintiff’s use prior to
the fire, or the candle product could have been knocked over on the night of the fire.
                                              7
case, the plaintiff appealed the exclusion of his expert’s metallurgist’s declaration
submitted in opposition to the defendant product manufacturer’s motion for summary
judgment. The plaintiff’s expert declared that he “conducted extensive examinations of
portions of the [allegedly defective] prosthetic device . . . using visual examination,
optical microscopic examination, X-ray radiography, fluorescent dye penetrant
examination, scanning electron miscroscopy, and such destructive testing as hardness
testing, micro hardness testing, microstructural analysis, and chemical analysis.” (Id., at
p. 187.) Based on his examinations, he determined that the fractured portion of the
prosthesis was softer than the “minimum required hardness” in two of the three ASTM
specifications covering the alloy for use in an implant and was less than the “expected
hardness” of the third specification. (Ibid.) Division Three of this District Court of
Appeal found that the expert’s opinion should not have been excluded by the trial court
based on the absence of more specific information on the testing methods and the results
obtained. (Ibid.)
       Unlike the plaintiff’s expert in Garrett v. Howmedica Osteonics Corporation,
supra, 214 Cal.App.4th 173, Mr. Hirschler did not conduct any examinations or testing at
all on the candle in question, since the fire investigator was unable to recover any
evidence of a candle from the fire residue. Moreover, not only did Mr. Hirschler not
conduct any examinations or tests on the candle and/or the glass container, he did not
inspect or test an exemplar candle product, review any testing reports or design
specifications, or produce any other document to support his opinion. He did not explain
the process he undertook to reach his opinions, or specify what safety standards he was
referring to in his declaration. Unlike in Garrett, his opinions are more than just “not
extensive;” they have no scientific basis and are nothing more than mere speculation as to
the glass container’s alleged defects.
       Furthermore, all of the cases cited by plaintiffs in fact support the trial court’s
findings. (Powell v. Kleinman, supra, 151 Cal.App.4th at p. 123 [expert’s opinion may
not be based on assumptions of fact that are without evidentiary support or based on
factors that are speculative or conjectural; expert’s opinion rendered without a reasoned

                                              8
explanation of why the underlying facts lead to the ultimate conclusion has no
evidentiary value because the opinion is worth no more than the reasons and facts on
which it is based]; Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 718
[“Case dismissing expert declarations in connection with summary judgment motions do
so on the basis that the declarations established that the opinions were either speculative,
lacked foundation, or were stated without sufficient certainty”]; Jennifer C. v. Los
Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1333 [declaration in
opposition to a motion for summary judgment is to be liberally construed and should be
admitted if it raises a triable issue of fact, but only if it is supported by a reasoned
explanation and is not “conclusory”].)
       In short, the trial court did not abuse its discretion in excluding Mr. Hirschler’s
declaration because it was without foundation and was based on speculation and
conjecture. (See Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114
Cal.App.4th 1108; Bancomer, S.A. v. Superior Court (1996) 44 Cal.App.4th 1450, 1457.)


       2. Defendants met their burden on summary judgment
       Plaintiffs also argue that the trial court erred in granting summary judgment
against them because defendants “failed in establishing their initial burden with respect to
defective design.” Again, we see no error.
       Section 437c, subdivision (p)(2) reads as follows: “A defendant or cross-
defendant has met his or her burden of showing that a cause of action has no merit if that
party has shown one or more elements of that cause of action, even if not separately
pleaded, cannot be established, or that there is a complete defense to any cause of action.




                                               9
Once the defendant or cross-defendant has met that burden, the burden shifts to the
plaintiff or cross-defendant to show that a triable issue of one or more material facts
exists as to that cause of action or a defense thereto.”
       The party moving for summary judgment bears the burden of persuasion that there
is no triable issue of material fact and that it is entitled to a judgment as a matter of law.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Defendants moving for
summary judgment bear the burden of persuasion that one or more elements of the cause
of action in question “cannot be established” or that “there is a complete defense thereto.”
(Ibid.) The moving defendants can make this prima facie showing either by presenting
evidence that conclusively negates an element of plaintiffs’ cause of action or by
presenting evidence that the plaintiffs do not possess, and cannot reasonably obtain,
needed evidence. (Ibid.) If the moving defendants meet their initial burden, then the
burden shifts to the plaintiffs to show that a material issue of material fact exists. (Ibid.)
       Plaintiffs cite several cases which illustrate that a defendant cannot shift the
summary judgment burden to the plaintiff by relying only on “an absence of evidence to
support” an element of the plaintiff’s cause of action. This is a correct statement of the
law. Summary judgment indeed requires that the moving defendants present evidence,
and not simply point out that plaintiffs do not possess and cannot reasonably obtain
evidence, needed to prove their claims. (Aguilar v. Atlantic Richfield Co., supra, 25
Cal.4th at p. 856.) Here, defendants presented evidence that the candle and glass
container were not available for inspection, that no exemplar candle or glass container
was examined, that no defect in the candle or the glass container (or exemplars of same)
was ever identified, that the fire investigator identified the electrical system as a potential
cause of the fire, and that the official cause of the fire was undetermined. This shifted the
burden to the plaintiffs to present evidence of a disputed issue of material fact. Despite
all of their efforts, including protracted discovery over a period of several years, plaintiffs




                                              10
were unable to locate any evidence to support their speculation as to the cause of the fire.
        Plaintiffs also contend that “Respondents failed to meet their initial burden of
negating design defect in the candle product under the risk benefit theory.” We disagree.
        A product is defective in design if the benefits of the design do not outweigh the
risk of danger inherent in the design, the so-called “risk-benefits test.” (Garrett v.
Howmedica Osteonics Corporation, supra, 214 Cal.App.4th 173, 182.) The plaintiff
bears an initial burden of making ‘a prima facie showing that the injury was proximately
caused by the product’s design.’ This showing requires evidence that the plaintiff was
injured while using the product in an intended or reasonably foreseeable manner and that
the plaintiff’s ability to avoid injury was frustrated by the absence of a safety device, or
by the nature of the product’s design. If this prima facie burden is met, the burden of
proof shifts to the defendant to prove, in light of the relevant factors, that the product is
not defective.” (Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 678.) In other words,
if the plaintiff has met his burden of demonstrating that the product’s design caused the
injury, the defendant manufacturer has to prove that the benefits of the product’s design
outweigh the risks of the design. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413,
431.)
        Plaintiffs rely on McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th
1111, for the proposition that, on summary judgment, the defendants need to prove that
the benefits of the design outweigh its inherent risks. In McCabe, the plaintiff had made
a prima facie case that the design of the air bags caused her injuries. (Id. at p. 1127.)
Honda did not even dispute her evidence of causation. The burden then shifted to Honda
to establish that the benefits of the design of the air bags outweighed its risks. (Ibid.)
        Unlike in McCabe v. American Honda Motor Co., supra, 100 Cal.App.4th 1111,
in the present case plaintiffs did not meet their initial burden of establishing causation.
They offered no proof that the injury was proximately caused by the product’s design.
There were possible explanations for the ignition of the fire other than a defect in the




                                              11
candle product, including an electrical system problem, the candle being knocked over,
and the glass container sustaining damage after it left the defendants’ control. Plaintiffs
were unable to rule out any of these possibilities. Thus, the burden never shifted to
defendants to prove that the benefit of the product design outweighed the risks of the
design. As the burden never shifted to defendants, there was no need for them to produce
expert witness declarations as to the benefits of the design of the candle product versus its
relative risks.


                                        Disposition
       The judgment is affirmed. Defendants are to recover their costs on appeal.
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                     MINK, J.*

I concur:



       KRIEGLER, J.




*
      Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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      I concur in everything except the statement that the standard of review for
evidentiary ruling in a summary judgment proceeding is abuse of discretion. (See Reid v.
Google (2010) 50 Cal.4th 512, 535; Howard Entertainment, Inc. v. Kudrow (2012) 208
Cal.App.4th 1102, 1114.)




                                  MOSK, ACTING P. J.
